1.What is copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematographic films and sound recordings. In other words copyright is a term given to bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. Unlike the case with patents, copyright protects the expression and not the ideas. The Copyright Act defines the term Copyright to mean exclusive right to do or authorise the doing of the following acts in respect of a work or any substantial part thereof, namely:

In the case of literary, dramatic or musical work (except computer programme):

1. reproducing the work in any material form which includes storing of it in any medium by electronic means;
2. issuing copies of the work to the public which are not already in circulation;
3. performing the work in public or communicating it to the public;
4. making any cinematograph film or sound recording in respect of the work; making any translation or adaptation of the work.

Further any of the above mentioned acts in relation to work can be done in the case of translation or adaptation of the work.

In the case of a computer programme:

1. to do any of the acts specified in respect of a literary, dramatic or musical work; and
2. to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. However, such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.

In the case of an artistic work:

1. reproducing the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
2. communicating the work to the public
3. issuing copies of work to the public which are not already in existence;
4. including work in any cinematograph film; making adaptation of the work, and to do any of the above acts in relation to an adaptation of the work.

In the case of cinematograph film and sound recording:

1. making a copy of the film including a photograph of any image or making any other sound recording embodying it;
2. selling or giving on hire or offer for sale or hire any copy of the film/sound recording even if such copy has been sold or given on hire on earlier occasions; and
3. communicating the film/sound recording to the public.

In the case of a sound recording:

• To make any other sound recording embodying it
• To sell or give on hire, or offer for sale or hire, any copy of the sound recording
• To communicate the sound recording to the public.

2.Does India have a law relating copyrights?

Yes, in India the law relating to copyright is governed by the Copyright Act, 1957 which has been amended in 1983, 1994, 1995, 1991, 1994, 1999 and 2012 to meet with the national and international requirements. The amendment introduced in 1994 included computer program within the definition of literary work and a new definition of computer program was inserted by the 1994 amendment. In 1999, the Copyright Act, 1957 was further amended to give effect to the provisions of the TRIPs agreement providing for term of protection to performers rights at least until the end of a period of fifty years computed from the end of the calendar year in which the performance took place.

3.Is it necessary to register a work to claim copyright?

No. Acquisition of copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.

4.Authorship and Ownership under Copyright Law.

Copyright protects the rights of authors, i.e. creators of intellectual property in the form of literary, musical, dramatic and artistic works and cinematograph films and sound recording. Generally the author is the first owner of copyright in a work.

Author as per Section 2(d) of the Act means

• In the case of a literary or dramatic work the author, i.e. the person who creates the work.
• In the case of musical work, the composer.
• In the case of a cinematograph film, the producer.
• In the case of a sound recording, the producer.
• In the case of a photograph the photographer.
• In the case of any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created.

Copyright in musical sound recording:

In a musical sound recording there are many right holders. The lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician who performed the background music, and the person who produced the sound recording.

A sound recording generally comprises various rights. It is necessary to obtain the licences from each and every right owner in the sound recording. This would inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics and the musician who composed the music.

Copyright in Government work:

In case of a government work, government shall, in the absence of any agreement to the contrary be the first owner of the copyright therein.

Copyright in work made under directions of public undertaking.

In the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Copyright in work done during the course of employment.

In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said properitor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in so far as the copyright related to the publication of the work in any newspaper, magazines or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work. In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

In the case of work done for valuable consideration at the instance of any person:

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematographic film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

 5. What is the term of Copyright under Indian law?

Under Indian law literary, dramatic, musical or artistic works enjoy copyright protection for the life time of the author plus 60 years beyond i.e. 60 years after his death. In the case of joint authorship which implies collaboration of two or more authors in the production of the work, the term of copyright is to be construed as a reference to the author who dies last.

In the case of copyright in posthumous, anonymous, and pseudonymous works, photographs, cinematograph films, sound recordings, works of Government, public undertaking and international organisations, the term of protection is 6o years from the beginning of the calendar year next following the year in which the work has been first published.

6. What is the term of Copyright in Broadcasting in India?

The right to be enjoyed by every broadcasting organisation is for a period of twenty- five years from the beginning of the calendar year next following the year in which broadcast is made.

7. Administration of the Copyright Law

The Copyright Act provides for a quasi- judicial body called the Copyright Board consisting of a Chariman and two or more, but not exceeding fourteen other members for adjudicating certain kind of copyright cases:

1. Hear appeals against the orders of the Registrar of copyrights
2. Hear applications for rectification of entries in the Register of Copyrights
3. Adjudicate upon disputes on assignment of copyright
4. Grant compulsory licence to publish or republish works (in certain circumstances)
5. grant compulsory licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work;
6. hear and decide disputes as to whether a work has been published or about the date of publication or about the term of copyright of a work in another country;
7. fix rates of royalties in respect of sound recordings under the cover-version provision; and
8. fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.
9. Copyright Board has no power to limit the user of copyright to any particular territory.

Rights of the Registrar of Copyrights:

The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of Civil Procedure in respect of the following matters, namely,

• summoning and enforcing the attendance of any person and examining him on oath;
• requiring the discovery and production of any document;
• receiving evidence on affidavit;
• issuing commissions for the examination of witnesses or documents;
• requisitioning any public record or copy thereof from any court or office;
• Any other matters which may be prescribed

8. Are decisions passed by Copyright Board appelable?

The appeal against orders of Copyright Board except where specifically barred lies with the High Court within whose jurisdiction the appellant resides or carries on business.

9. Assignment of Copyright

What is Assignment of Copyright

The owner of a copyright in an existing work or the prospective owner of a copyright in a future work may assign to any person the copyright in the work. The assignment may be made of the copyright either partially or wholly and generally or subject to limitations and that too for the whole period of copyright or a part thereof. In the case of copyright in future work the assignment has the real effect only when the work comes into existence.

Mode of assignment:

Important points:

• Assignment of copyright should be in writing signed by the owner of the copyright or his duly authorized representative. Oral assignment is invalid and it is impermissible in law.
• The assignment of copyright should specify the assigned work, rights including duration, territorial extent of assignment and the amount of royalty.
• In the absence of duration and territorial extent, the assignment remains valid for a period of five years and within the territory of India.
• In case assignee does not exercise his rights within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of said period, unless otherwise specified in the assignment.
• The assignment of copyright in any work contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member is
• The Assignment of copyright in any work to make a cinematographic film does not affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilization of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.

10. Licensing of Copyright:

Licences by owners of copyright

The law authorises the owner of a copyright in any existing work or the prospective owner of the copyright in any future work to grant any interest in the right by licence in writing by him or by his duly authorised representative. However in the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence.

Compulsory licence in works withheld from public:

The law provides that that if at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work has refused to re-publish or allow the re-publication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public or has refused to allow communication to the public by broadcast of such work or in the case of a sound recording; the work recorded in such sound recording, on terms which the complainant considers reasonable, the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine.

 Statutory licence for cover versions

Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section. However, such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.

The person making the sound recordings required to give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board.

Statutory licence for Broadcasting of literary and musical works and sound recordings:

The law stipulates that any broadcasting organisation desirous of communicating to the publix by way of a broadcast or by way of performance of a literally or musical work and sound recording which has already been published may do so after fulfilling statutory requirements. The broadcasting organisation is required to give prior notice of its intention to broadcast the work stating the duration and territorial coverage of the broadcast and pay to the owner of the copyright royalities in the manner and at the rate fixed by the Copyright Board. The broadcasting organisation is required to maintain records and books of account, and render to the owner of rights the right to inspect such reports and accounts in the prescribed manner.

Licence to produce and publish translations:

Any person can apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work. However in case of teaching, scholarship and research such period is three years from the date of first publication of such work.

11. Copyright Societies

What are Copyright Societies?

A copyright society is a registered collective administration society under Section 33 of the Copyright Act, 1957. Such a society is formed by authors and other owners. A copyright society can issue or grant licences in respect of any work for which it is authorised to by the authors or owners of the work.  A Copyright Society is registered keeping in view:

• The interests of the authors and other owners of rights under the Copyright Act;
• The interest and convenience of the public and in particular of the group of persons who are most likely to seek licences in respect of the relevant rights; and
• The ability and professional competence of the applicants.

However the owner of copyright in his individual capacity continues to have the right to grant licences in respect of his work consistent with his obligations as a member of the registered copyright society. There cannot be more than one copyright society to do business in respect of the same class of works.

The copyright society looses its registration if its found that its management is detrimental to the interests of the owners of copyright.

How to register a copyright society? 

Any association of persons whether incorporated or not, consisting of seven or more authors or owners of copyright (hereinafter referred to as ‘Applicant’) formed for the purpose of carrying of business of issuing or granting licenses in respect of any class of works for which it is registered may file an application with the Registrar of Copyrights on Form VIII.

Every application shall be accompanied with:

• A true copy of the application by which the Applicant is established or incorporated.
• Consent of all the members included in the application to act as members of the Governing Body of the Application.
• A declaration containing the objectives of the Applicant, the bodies through which it will function and arrangements for accounting and auditing.
• An undertaking to the effect that the instrument is established or incorporated provides for conforming the same to the provisions of the Act and these Rules.

Administration of rights of owner by Copyright Society:

Copyright society can accept exclusive authorisation from an owner of Copyright to administer any right in any work by issuing licences or collection of licence fee or both. A copyright society formed under the Act is competent to:

• Issue licences
• Collect fee in pursuance of such licence.
• Distribute such fees among owners of rights after making deductions for its own expenses; and
• Perform any other function consistent with the provisions of the Act.

Which Copyright Societies are registered in India?

Presently there are three registered copyright societies in India; namely

• For Literary works associated with Musical Works: The Indian Performing Right Society Limited (IPRS)
• For Reprographic (photo copying) works: Indian Reprographic Rights Organization (IRRO)
• For Performers (Singers) Rights: Indian Singers Rights Association (ISRA)

12. Broadcast reproduction right

What is broadcast reproduction right?

Every broadcasting organisation has a special right known as broadcast reproduction rights, in respect of its broadcast for a period of twenty five years from the beginning of the calendar year next to the year in which the broadcast is made.

What amounts to infringement of broadcast reproduction rights?

Any person who without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof during the term of broadcast reproduction right:-

• Re- broadcasts the broadcast; or
• Causes the broadcast to be heard or seen by the public on payment of any charges;
• Makes any sound recording or visual recording of the broadcast; or
• Makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or; where it was licences, for any purpose not envisaged by such licence or
• Sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual recording is deemed to have infringed broadcast reproduction right.

13.Performers rights

What are performers rights?

Performer’s rights are the rights given to any person who engages in performance. The performer’s rights subsists for a period of fifty years from the beginning of the calendar year next following the year in which the performance is made.

Exclusive rights of performers:

• To make sound recording or a visual recording of the performance including-
• Reproduction of it in any material form including the storing of it in any medium by electronic or any other means.
• Issuance of copies of it to the public not being copies already in circulation
• Communication of it to the public
• Selling or giving it on commercial rental or offer for sale of for commercial rental any copy of the recording;
• To broadcast or communicate the performance to the public except where the performance is already broadcasted.

14. What acts are not constituted as infringement of Broadcast Reproduction Right and Performers Right

A broadcast reproduction right or performer’s right is deemed not to have been infringed in situations like:

• The making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bonafide teaching or research;
• The use, consistent with fair dealing of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; or
• Such other acts, with any necessary adaptation and modifications, which do not constitute infringement of copyright under the Act.

15. International Copyright

Copyright protection to foreign work.

The Indian Copyright Act applies only to works first published in India except in exceptional cases where certain or all provisions of the Act may apply to works first published in foreign countries. The benefit granted to foreign work will however not go beyond the actual benefits extended in it’s home country and that too on reciprocal basis.

Conditions for copyright protection to foreign works

The following are the requisites for conferring copyright protection to works of international organisations:

• The work must be made or first published by or under the direction or control of the International Organisation.
• There should be no copyright in the work in India at the time of making or on the first publication of the work.
• If the work is published in pursuance of an agreement with the author, such agreement should not reserve the author any copyright in the work or any copyright in the work should belong to the organisation.

16. Infringement

Infringement of copyright

Copyright in a work is considered as infringed only if a substantial part is made use of unauthorizedly. What is ‘substantial’ varies from case to case. More often than not, it is a matter of quality rather than quantity.

The following are some of the commonly known acts involving infringement of copyright:

• Making infringing copies for sale or hire or selling or letting them for hire;
• Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;
• Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;
• Public exhibition of infringing copies by way of trade; and
• Importation of infringing copies into India.

A copyright owner can take legal action against any person who infringes the copyright and is entitled to remedies by way of injunctions, damages and accounts.

Penalty for infringement and the status of the infringing copies

The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh.

All infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such infringing copies shall be deemed to be the property of the owner of the copyright.