Copyright

• Historical development
• The copyright law in India is on close parallels with the history of
British copyright law.
• In the ancient times, copying of a manuscript was a
painstakingly slow process done mainly by monks and was
limited to copying religious works for orders and the royal courts
of Europe.
• The early writers authored works for fame.
• The scholars of Ancient Greece and the Roman Empire were the
first to be concerned about being recognised as the authors of
their works, but they were devoid of any economic rights.
 Copyright
• With the advent of the printing press, the need for some form of
protection arose.
• Modern day England was the first to grant privilege to print
books.
• The method, the government chose, was to establish a guild of
private-sector censors, the London Company of Stationer.
• The Stationers were granted a royal monopoly over all printing
in England, old works as sell as new.
• No book could be printed until it was entered in the Company's
Register, and no work could be added to the register until it had
passed the Crown's censor, or had been self-censored by the
Stationers.
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• The first recognizably modern copyright, the Statute of Anne,
was passed in 1709.
• This Act introduced for the first time the concept of the author
of a work being owner of its copyright, and laid out fixed terms
of protection.
• Under this Act, copyrighted works were required to be
deposited at specific copyright libraries, and registered at
Stationers' Hall.
• There was no automatic copyright protection for unpublished
works.
• Legislation based the Statute of Anne gradually appeared in
other countries.
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• History of copyright in India
• The history of copyright law in India can be traced to 1847 by an
enactment during the East India Company's regime.
• In 1914, the then Indian legislature enacted a new Copyright Act
which extended most portions of the UK Copyright Act to India.
• The 1914 Act continued till the 1957 Act was brought into force.
Later the 1957 Act was amended many times to bring in
sweeping changes to the Act.
 Copyright
• International framework – Berne Convention
• The International Convention for the protection of literary or
artistic works was first signed at Berne on 9 September 1886
• It provides that that any the work created by an author in a
member country shall enjoy protection in all countries of the
Union.
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• Salient features
• It requires member nations to offer the same protection to
authors from other member countries that it provides to its own
nationals.
• Under the Convention, neither formal registration nor
publication of a copyright notice is required in order to procure
a copyright.
• It states that all works shall be protected for at least 50 years
after the author's death with some exceptions.
 Copyright
• Article 9 provides that authors of literary and artistic works
protected by the convention shall enjoy the exclusive right of
authorizing the reproduction of these works in any manner or
form.
• Under the Berne Convention, copyright holders must be
guaranteed six rights for the entire life of the copyright:
translation, reproduction, public performance, adaptation,
paternity, and integrity.
• Berne Convention is the basic copyright convention and India
has acceded to this convention which means our Act is in
conformity with the provisions of the convention.
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• Basic principles of copyright
• Idea versus expression dichotomy
• Law does not recognize property rights in ideas but only in the
expression of the same in a particular manner adopted by the
author.
• There is no copyright in ideas, schemes, systems or method.
• Copyright is confined only to the subject.
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• In Donoghue v. Allied Newspapers Ltd. (1937) 3 All ER 503, it
was pointed out that there was no copyright in an idea and in
this connection Farwell J observed as follows:
“There is no copyright in an idea, or in ideas, 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, and the copyright exists in the
particular form of language in which, or, in the case of a picture, in
the particular form of the picture by which, the information or the
idea is conveyed to those who are intended to read it or look at it.”
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• The critical distinction between "idea" and "expression" is
difficult to draw. Hand J candidly wrote, "Obviously , no principle
can be stated as to when an imitator has gone beyond copying
the 'idea,' and has borrowed its 'expression ''.
• In Halsbury's Laws of England, the following observations are
made: Only original works are protected under the Copyright
Act, 1956 , but it is not requisite that the work should be the
expression of original or inventive thought, for Copyright Acts
are not concerned with the originality of ideas, but with the
expression of thought, and, in the case of a literary work, with
the expression of thought in print or writing...
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• In Shipman v. Radio Pictures Inc. (40 USPQ 211), while holding
that an idea cannot be the subject of copyright, great stress was
laid on the impression which the audience forms after seeing
the copy.
• The court concluded that it was the idea or impression conveyed
to the audience which was the determining factor. From this
case stand the modern law of copyright cases, with the result
that it is now held that ideas are not copyrightable but that
sequence of events is.
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• RG Anand v. Delux Films (AIR 1978 SC 1613) discussed at length
the question of copyright in ideas.
• The dispute in the case centred around the similarity between a
play and a film. The basic similarities were the two aspects of
provincialism, viz. the role of provincialism in regard to marriage
and in renting out accommodation, evils of a caste ridden
society, and the evils of dowry. The court came to the conclusion
that the number of similarities by themselves are not sufficient
to raise an inference of colourable imitation. The similarities are
trivial and touch insignificant points and do not appear to be of
substantial nature. The central idea of the play, viz. provincialism
is the subject-matter of the film along with other ideas also. But
it was held that a mere idea cannot be the subject-matter of
copyright.
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• In SAS Institute Inc. v. World Programming Ltd. (2013 EWCA Civ
1482), SAS had developed software programs (SAS) for data
processing and analysis and published technical manuals for
them.
• WPS wrote its own alternative program to do the SAS program.
• SAS claimed copyright infringement of its manual.
• The court, while dismissing the claim of SAS, reasoned that what
was relevant was not the intellectual creation, but the
expression of the intellectual creation of the author of the
manual. For an infringement of copyright to exist, the
defendant's work had to represent the claimant's work in some
real sense. It was held that the functionality of a computer
program was not a form of expression but only an idea.
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• A. Balakrisbnan v. R. Kanagavel Kamaraj (2000) 20 PTC 525
(Mad.), it was held that the grandson of the deceased political
leader was held not entitled to prevent making of a film of the
leader on the premise that he was not a custodian of history.
• Baker v Seldon (101 US 99 (1879))
• The issue in (Baker) was whether the defendant's publication of
a book on bookkeeping, articulating a similar manner of
bookkeeping as was done in the plaintiff's book, amounted to
infringement.
 Copyright
• Selden claimed copyright infringement by Baker, of the series of
books which consists of an introductory essay explaining the
system of bookkeeping which are annexed with certain forms or
blanks. This system effects the same results as bookkeeping by
double entry.
• The defendant uses a similar plan so far as results are
concerned; but makes a different arrangement of the columns,
and uses different headings.
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The court decided
• The description of the art in a book, though entitled to the
benefit of copyright, lays no foundation for an exclusive claim to
the art itself.
• The object of the one is explanation; the object of the other is
use.
• The former may he secured by copyright.
• The novelty of the art or thing described or explained has
nothing to do with the validity of the copyright.
• Thus, there was no infringement of copyright in this case.
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• Facts are not copyrightable.
• The most fundamental principle of copyright law is that "no
author may copyright his ideas or the facts he narrates.“
• Copyright protection accorded to the fact based works is limited
only to language employed in respect of describing the incidents
in the work and also the selection, arrangement and compilation
of data and not in the historical facts itself.
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• Doctrine of merger
• The doctrine of merger posits that where the idea and
expression are intrinsically connected, and the expression is
indistinguishable from the idea, copyright protection cannot be
granted.
• Applying this doctrine, court have refused to protect the
expression of an idea that can be expressed only in one manner,
or in a very restricted manner, because doing so would confer
monopoly on the idea itself.
• Baker v Selden itself is the case law from where the Doctrine of
Merger grew.
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• Originality
• Law does not protect every expression. The law affords
protection to expressions that are fixed in a medium and are
original.
• In India Section 13, Copyright Act, 1957 states that only original
literary, artistic, dramatic and musical works are subject-matter
of copyright. A work, in order to qualify as work in which
copyright can subsist, must, therefore, be original.
• The word original does not mean that the work must be the
expression of original or inventive thought. Thus, the idea need
not be original, it is the expression that must be original.
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• But the Act does not require that the expression must be in an
original or novel form, but that the work must not be copied
from another work that it should originate from the author.
• As regards compilation, originality is a matter of degree
depending on the amount of skill, judgment or labour that has
been involved in making the compilation.
• The commonplace matter put together or arranged without the
exercise of more than negligible work, labour and skill in making
the selection will not be entitled to copyright.
• In deciding whether a work in the nature of a compilation is
original, it is wrong to consider individual parts of it apart from
the whole. Many compilations have nothing original in their
parts, yet the sum total of the compilation may be original.
 Copyright
• In such cases, the courts have looked to see whether the
compilation of the unoriginal material called for work or skill or
expense.
• If it did, it is entitled to be considered original and to be
protected against those who wish to steal the fruits of the work
or skill or expense by copying it.
• In each case, it is a question of degree whether the labour or
skill or ingenuity or expense involved in the compilation is
sufficient to warrant a claim to originality in a compilation.
 Copyright
• Ladbroke v. William Hill ((1964) 1 All ER 465 (HL))
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 Copyright
• Ladbroke v. William Hill ((1964) 1 All ER 465 (HL))
• The respondents coupon contained 16 lists, each with an
appropriate name. The appellants coupon, which contained 15
lists, closely resembled the respondents.
• The lists offered by the appellants were almost identical with
those offered by the respondents in their corresponding lists.
• The respondents brought an action claiming copyright in the
coupons.
• The House of Lords was called upon to determine whether or to
what extent copyright attached to these coupons.
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• The respondents said that a coupon must be regarded as a
single work and that as such it was protected by copyright. It did
not follow that because the fragments of the compilation, taken
separately, would not be copyrightable, the whole could not be
copyrighted.
• The appellants sought to dissect the coupon. It was submitted
by the appellants that the derivative work of the respondents
not being original, no copyright can be claimed and the inputs
put, if considered separately, are insignificant value and thus the
respondents could not claim copyright.
• The court found that the word original does not demand original
or inventive thought, but only that the work should not be
copied but should originate from the author.
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• In January 1964, following seven days of argument all five of
their Lordships dismissed the appeal and upheld the finding that
the coupons were copyright-protected “original” compilations
and that Ladbroke had infringed.
• A work may be protected by copyright even though it is based
on something already in the public domain if the author,
through his skill and effort, has contributed a distinguishable
variation from the older works.
• A distinguishable variation must be substantial and not merely
trivial.
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•  In Macmillan and Co. Ltd. v. K. and J. Cooper (AIR 1924 PC 75), it
was held that the question is not whether the materials which
are used are entirely new and have never been used before, but
the true question is whether the same plan, arrangement and
combination of materials have been used before, for the same
purpose or for any other purpose.
• If they have not, then the plaintiff is entitled to a copyright,
although he may have gathered hints for his plan and
arrangement or parts of his plan and arrangement from existing
and known sources.
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• In Emerson v Davies (8 F Cas 615) Story J has brought out the
distinction between something which is in the public domain
and copyrighted work as:
i. Any new and original plan, arrangement or combination of
material will entitle the author to copyright therein, whether
the materials themselves be old or new.
ii. Whosoever by his own skill, labour and judgment writes a
new work may have a copyright therein, unless it be directly
copied or evasively imitated from another's work.
iii. To constitute piracy of a copyright, it must be shown that the
original work has been either substantially copied or to be so
imitated as to be a mere evasion of the copyright.
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• However, in a some jurisdictions, including India, the mere fact
of original compilation is not sufficient to get copyright – there
should be some creativity involved (known as ‘the minimum
modicum of creativity test’)
• Eastern Book Co. v. D.B. Modak (AIR 2008 SC 809)
• Supreme Court of India held that the work must be original "in
the sense that by virtue of selection, co-ordination or
arrangement of pre-existing data contained in the work, a work
somewhat different in character is produced by the author".
• In this case, a party had copied parts of the ‘Supreme Court
Cases’ published by EBC
• On being sued for copyright infringement, they argued that
since the original text of the cases is not EBC’s copyright, merely
compiling them is not sufficient to confer copyright protection.
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• The Supreme Court in Eastern Book Company has held that
collection of material and addition of inputs in the raw text
ordinarily does not give work a flavour of minimal requirement
of creativity, as skill and judgment required to produce the work
are trivial. To establish copyright, the creativity standard applied
is not that something must be novel or non-obvious, but some
amount of creativity in the work to claim copyright is required.
• In that case, selection and arrangement was viewed as typical
and at best result of labour, skill and investment of capital,
lacking even minimal creativity, which did not as a whole display
sufficient originality so as to amount to an original work of the
author.
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• The court held that 3 inputs made by the publisher satisfied the
test of minimal creativity, namely,
• (i) segregating the existing paragraphs in the original text by
breaking them into separate paragraphs;
• (ii) adding internal paragraph numbering within a judgment
after providing uniform paragraph numbering to the multiple
judgments; and
• (iii) indicating in the judgment the judges who have dissented or
concurred by introducing phrases like "concurring", "partly
concurring" "partly dissenting", "dissenting" "supplementing"
“majority expressing no opinion", etc.
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• After recording that these inputs required knowledge, sound
judgment and legal skills besides requiring extensive reading,
careful study of the subject and exercise of judgment, etc.
• The Court held that in these inputs the publisher of SCC had a
copyright and nobody was permitted to utilize the same.

• In addition to originality, there is one more requirement, that of

fixation:
• Copyright law will only apply if the work has been recorded or
fixed in a tangible medium.
• Thinking of a poem or humming a tune, therefore, will not
confer copyright protection.
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Copyrightable works
By Section 13(1), copyright subsists in certain works.
1. Literary work 
• The term literary work has been defined in the Copyright Act,
1957 to include tables compilations and computer programmes
including computer literary databases.
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 Copyright
• Titles
• While deciding the copyright claim to a title in E.M. Forster v.
A.N. Parasuram (AIR 1964 Mad 331), the court found that there
is no copyright to the title.
• The case relates to the novel, A Passage to India, written by the
English novelist E.M. Forster as a textbook for the students
taking the BA degree.
• One Mr A.N. Parasuram, the respondent in that case published a
guidebook to that novel for the students. The guide was titled,
E.M. Forster, A Passage to India, Everyman's Guide. The court
held that there is no copyright in respect of title.
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• As a rule a title does not involve literary composition and is not
sufficiently substantial to justify a claim to protection.
• That statement does not mean that in particular cases a title
may not be on so extensive a scale and of so important a
character as to be a proper subject of protection against being
copied.
• American courts have taken the uniform view that the title
alone of a literary work cannot be protected by copyright law.
• Copying of a title alone, and not the plot, characterisation,
dialogue, song, etc., is not the subject of copyright law.
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• Advertising slogan
• Slogans are not entitled to copyright protection
• In Godfrey Phillips India Ltd v Dharampal Satyapal Ltd. (2012)
191 DLT 109. The defendants' use of the advertising slogan
"Swad Badi Cheez Hal" was challenged by the plaintiffs who
were using the slogan "Shauq Badi Cheez Hal" for advertising
their pan masala.
• The court found that both the slogans were only commonly
spoken Hindi words.
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• Yoga poses
• The question in Bikram's Yoga College of India v. Evolution Yoga
(US) was whether Yoga sequences could be granted copyright
protection.
• Bikram Choudhury had developed a Yoga system called Bikram
Yoga brand which includes 26 Yoga poses and two breathing
exercises that are performed in the same order in a room
heated to 105 degrees Fahrenheit for 90 minutes.
• He also wrote a book on the Yoga series and also developed the
Bikram Yoga teacher training course.
• Drost and Samson, the defendants were trainees with
Choudhary and later opened studios that offered classes using
Bikram's sequence.
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• Choudhury's compilation of exercises and Yoga poses can be
considered as a procedure or system of exercises. The court
concluded that the sequence is not copyrightable. 

2. Dramatic Work
• Dramatic work includes any piece for recitation, choreographic
work or entertainment in dumb show, the scenic arrangement
or acting form of which is fixed in writing or otherwise but does
not include a cinematograph film. (Section 2)
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• Most drama is a form of writing for oral and actual performance.
• Printed texts of plays can be read as literature.
• Texts of great plays are read as dramatic literature. The main
classification as literary work and dramatic work cannot be
construed to mean that dramatic work has nothing to do with
literary work.
• The only difference is that the dramatic work forms the text
upon which the performance of the plays rests whereas a
"literary work" enables one to read the printed words.
• Thus in Academy of General Education v. B. Malini, a dramatic
work also a form of literature. The Privy Council has stated that
"a dramatic work" must have sufficient unity to be capable of
performance.
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• Musical work
• A song consists of three elements: lyrics, music and singing.
There are three players.
• The lyricist who provides the words;
• The musician who provides the music score; and
• The singer who provides the sound to the words.

• Musical work is only the second of these, not the other two.
• The expression musical work includes an arrangement of
sounds, melody and harmony and would include tune as well.
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• Sound recording
• Sound recording is defined to mean a recording of sounds from
which such sounds may be produced regardless of the medium
on which such recording is.
• In sound recordings and cinematograph films, the literary and
musical work gets incorporated therein and thereupon
independent copyrightable works, viz. sound recordings and
cinematograph films, come into existence
• This is when rights under Section 14 in respect of each sound
recording and cinematograph film come into existence which
can be exploited by the owner of the sound recording or
cinematograph film without interference from the owners of
copyright in the underlying literary or musical works therein.
 Copyright
• The owner of a sound recording has the exclusive right of
communicating the sound recording to the public.
• Though the exercise of such right has the effect of
communicating the underlying works to the public, such
communication of underlying works being a part of sound
recording does not amount to infringement of the copyright of
communicating to the public, the underlying works.
• This is not true when sound recording is made in infringement of
any valid copyright.
• The owners of underlying works incorporated in a sound
recording do not have the right of communicating the same to
the public as a part of the sound recording.
 Copyright
• The owner of a copyright in the underlying works retains the
bundle of copyrights therein otherwise than as a part of the
sound recording.
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• Artistic work
• "Artistic work" means, (Section 2(c))
• (i) a painting, a sculpture, a drawing (including a diagram, map,
chart or plan), an engraving or a photograph, whether or not
any such work possesses artistic quality;
• (ii) a work of architecture; and
• (iii) any other work of artistic craftsmanship.
• Any print obtained from either an offset printing process or by a
letter press or in combination of the various printing processes
including silk printing process cannot amount to an engraving.
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• Wherever any artistic work has been made for mass commercial
exploitation, the same is excluded from the protection under
the Copyright Act, 1957 and is provided protection under the
Designs Act, 2000 only, provided the said design is registered
under the Designs Act.
• This means that the particular article which contain the artistic
work has been reproduced for 50 times or more. (Section 15(2)).
 Copyright
• Types of Artistic Works
• Painting
• Merchandising Corpn. of America v Harpbond Ltd
• The Court held that a particular style of makeup on a face did
not amount to a painting. It was neither fixed (it could be
removed and re-worn), nor was made on a surface, the manner
in which paintings are made.
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• Sculpture
• An ice sculpture though not permanent, was held to be
protected by copyright.
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• Drawing (including diagram, map, chart or plan)
• In Aga Medical Corpn v Faisal Kapadi, the court did not find favor
with the contention that only those drawings which are
prepared by an artist alone will be protected under copyright .
• It observed that even a scientist or a technical expert creating a
diagram, chart or plan with technical purpose may have
copyright protection.
• Thus copyright also exists in respect of engineering drawings.
• Engraving
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• Photography
• Photographs are protected works.

• Works of artistic craftsmanship

• Even beyond the above definitions, if there is a work that has
been done by an artist with an ‘artistic intention’, it can still
claim copyright.
• The critical factor for deciding whether a work is considered as a
work of artistic craftsmanship is the original intention of the
artist in creating the work. Artistic quality of the work is
irrelevant.
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• Cinematograph film
• A cinematograph film will have a separate copyright apart from
its various components, namely, story, music, etc.
• Any work of visual recording qualifies as a cinematograph film.
• In IPRS Ltd v EIMP Association, the Supreme Court held that the
composer of the musical work or its authors do not possess any
rights in the works once those rights are assigned in favor of the
producer of a cinematograph film.
• Thus, the law in this regard is the same as that of the sound
recordings.
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• Ownership of Copyright
• Section 17 First owner of copyright.— Subject to the provisions
of this Act, the author of a work shall be the first owner of the
copyright therein:
• Provided that—
• (a) 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 proprietor
shall, in the absence of any agreement to the contrary, be the
first owner of the copyright in the work…
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• in so far as the copyright relates to the publication of the work
in any newspaper, magazine 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;
• (b) subject to the provisions of clause (a), in the case of a
photograph taken, or a painting or portrait drawn, or an
engraving or a cinematograph 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;
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• (c) in the case of a work made in the course of the author’s
employment under a contract of service or apprenticeship, to
which clause (a) or clause (b) does not apply, the employer shall,
in the absence of any agreement to the contrary, be the first
owner of the copyright therein;
• 1[(cc) in the case of any address or speech delivered in public,
the person who has delivered such address or speech or if such
person has delivered such address or speech on behalf of any
other person, such other person shall be the first owner of the
copyright therein notwithstanding that the person who delivers
such address or speech, or, as the case may be, the person on
whose behalf such address or speech is delivered, is employed
by any other person who arranges such address or speech or on
whose behalf or premises such address or speech is delivered;]
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• (d) in the case of a Government work, Government shall, in the
absence of any agreement to the contrary, be the first owner of
the copyright therein;
• Section 2(k) – “Government work” means a work which is made
or published by or under the direction or control of—
• (i) the Government or any department of the Government;
• (ii) any Legislature in India;
• (iii) any court, tribunal or other judicial authority in India;”
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• 2[(dd) 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.
• Explanation.— For the purposes of this clause and section 28A,
“public undertaking” means—
• (i) an undertaking owned or controlled by Government; or
• (ii) a Government company as defined in section 617 of the
Companies Act, 1956 (1 of 1956);or
• (iii) a body corporate established by or under any Central,
Provincial or State Act;]
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• [Provided that in case of any work incorporated in a
cinematograph work, nothing contained in clauses (b) and (c)
shall affect the right of the author in the work referred to in
clause (a) of sub-section (1) of section 13.]
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• Joint authors
• A joint author is a person
• 1) who collaborates with another author in the production of a
work;
• 2) who (as an author) provides a significant creative input; and
• 3) whose contribution is not distinct from that of the other
author. He must contribute to the production of the work and
create something protected by copyright which finds its way into
the finished work.
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• Assignment of copyright
• 18. Assignment of copyright.— (1) The owner of the copyright
in an existing work or the prospective owner of the copyright in
a future work may assign to any person the copyright either
wholly or partially and either generally or subject to limitations
and either for the whole term of the copyright or any part
thereof:
• Provided that in the case of the assignment of copyright in any
future work, the assignment shall take effect only when the
work comes into existence.
 Copyright
• Provided also that the author of the literary or musical work
included in a cinematograph film shall not assign or waive the
right to receive royalties to be shared on an equal basis with the
assignee of copyright for the utilization of such work in any form
other than for the communication to the public of the work
along with the cinematograph film in a cinema hall, except to
the legal heirs of the authors or to a copyright society for
collection and distribution and any agreement to contrary shall
be void:
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• Provided also that the author of the literary or musical work
included in the sound recording but not forming part of any
cinematograph film shall not assign or waive the right to receive
royalties to be shared on an equal basis with the assignee of
copyright for any utilization of such work any assignment to the
contrary shall be void.]
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• Term of copyright
• Term of copyright in published literary, dramatic, musical and
artistic work
• Copyright shall subsist in any literary, dramatic, musical or
artistic work other than a photograph published within the
lifetime of the author until 60 years from the beginning of the
calendar year next, following the year in which the author dies.
• In the case of a literary, dramatic, musical or artistic work other
than a photograph, which is published anonymously or
pseudonymously, copyright shall subsist until 60 years from the
beginning of the calendar year next, following the year in which
the work is first published.
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• Where the identity of the author is disclosed before the expiry
of the said period, copyright shall subsist until 60 years from the
beginning of the calendar year next, following the year in which
the author dies.
• Term of copyright in posthumous works
• In the case of a literary, dramatic or musical work or an
engraving, which, or any adaptation of which, has not been
published before the date of the death of the author, copyright
shall subsist until sixty years from the beginning of the calendar
year next following the year in which the work is first published
or, where an adaptation of the work is published in any earlier
year, from the beginning of the calendar year next following that
year.
 Copyright
• Term of copyright in photographs 
In the case of a photograph, copyright shall subsist until 60 years
from the beginning of the calendar year next following the year
in which photograph is published.
• Term of copyright in cinematograph films
• In the case of a cinematograph film, copyright shall subsist until
60 years from the beginning of the calendar year next following
the year in the film is published.
• Term of copyright in sound records 
• In the case of a sound recording, copyright shall subsist until 60
years from the beginning of the calendar year next following the
year in which the sound recording is published.
 Copyright
• Rights under copyright (Section 14)
• For the purposes of this Act, “copyright” means the exclusive
right subject to the provisions of this Act, to do or authorise the
doing of any of the following acts in respect of a work or any
substantial part thereof, namely:—
• (a) in the case of a literary, dramatic or musical work, not being
a computer programme,—
• (i) to reproduce the work in any material form including the
storing of it in any medium by electronic means;
• (ii) to issue copies of the work to the public not being copies
already in circulation;
• (iii) to perform the work in public, or communicate it to the
public;
 Copyright
• (iv) to make any cinematograph film or sound recording in
respect of the work;
• (v) to make any translation of the work;
• (vi) to make any adaptation of the work;
• (vii) to do, in relation to a translation or an adaptation of the
work, any of the acts specified in relation to the work in sub-
clauses (i) to (vi)
• (b) in the case of a computer programme,—
• (i) to do any of the acts specified in clause (a);
• (ii) to sell or give on commercial rental or offer for sale or for
commercial rental any copy of the computer programme
 Copyright
• (c) in the case of an artistic work,—
• (i) to reproduce the work in any material form including—
• (A) the storing of it in any medium by electronic or other means; or
• (B) depiction in three-dimensions of a two-dimensional work; or
• (C) depiction in two-dimensions of a three-dimensional work;]
• (ii) to communicate the work to the public;
• (iii) to issue copies of the work to the public not being copies
already in circulation;
• (iv) to include the work in any cinematograph film;
• (v) to make any adaptation of the work;
• (vi) to do in relation to adaptation of the work any of the acts
specified in relation to the work in sub-clauses (i) to (iv);
 Copyright
• (d) in the case of a cinematograph film,—
• (i) to make a copy of the film, including—
• (A) a photograph of any image forming part thereof; or
• (B) storing of it in any medium by electronic or other means;
• (ii) to sell or give on commercial rental or offer for sale or for
such rental, any copy of the film;
• (e) in the case of a sound recording,—
• (i) to make any other sound recording embodying it including
storing of it in any medium by electronic or other means;
• (ii) to sell or give on commercial rental or offer for sale or for
such rental, any copy of the sound recording;
• (iii) to communicate the sound recording to the public.
 Copyright
• Licenses by owners of copyright (Section 30)
• The owner of the copyright in any existing work or the
prospective owner of the copyright in any future work may grant
any interest in the right by licence in writing signed by him or by
his duly authorised agent. (Section 30)
• Compulsory licence in works withheld from public (Section 31)
• If at any time during the term of copyright in any Indian work
which has been published, a complaint is made to the
Intellectual Property Appellate Board (IPAB) that the owner of
copyright in the work has refused to republish or allow the
republication of the work, and by reason of such refusal the
work is withheld from the public, then-
 Copyright
• the IPAB, after giving to the owner of the copyright in the work a
reasonable opportunity of being heard and after holding inquiry
may direct the Registrar of Copyrights to grant to the
complainant a licence to republish the work for suitable
compensation.

• Compulsory licence in unpublished Indian works (Section 31A)

• Where, in the case of any unavailable work, the author is dead
or unknown or cannot be traced, or the owner of the copyright
in such work cannot be found, any person may apply to the IPAB
for a licence to publish or communicate to the public such work
(subject to certain procedural requirements given under Section
31 A).
 Copyright
• Compulsory licence for benefit of disabled (Section 31B)
• (1) Any person working for the benefit of persons with disability
on a profit basis or for business may apply to the IPAB, for a
compulsory licence to publish any work in which copyright
subsists for the benefit of such persons.
• (2) The IPAB may, on receipt of an application under sub-section
(1), inquire to establish the credentials of the applicant and
satisfy itself that the application has been made in good faith.
• (3) If the IPAB is satisfied, after giving to the owners of rights in
the work a reasonable opportunity of being heard that a
compulsory licence needs to be issued to make the work
available to the disabled, it may direct the Registrar of
Copyrights to grant to the applicant such a licence to publish the
work.
 Copyright
• Statutory licence for cover versions (Section 31C)
• (1) Any person desirous of making a cover version may do so
subject to the provisions of this section.
• (2) The person making the sound recordings shall give prior
notice of his intention to make the sound recordings 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 IPAB in
this behalf
• Provided that such sound recordings shall not be sold or issued
in any form of packaging or with any cover or label which is
likely to mislead or confuse the public as to their identity,
 Copyright
• and in particular shall not contain the name or depict in any way
any performer of an earlier sound recording of the same work or
any cinematograph film in which such sound recording was
incorporated and, further, shall state on the cover that it is a
cover version made under this section.
• Provided that such sound recordings shall not be made until the
expiration of five calendar years after the end of the year in
which the first sound recordings of the work was made.
 Copyright
• Statutory licence for broadcasting of literary and musical works
and sound recording (Section 31D)
• (1) Any broadcasting organisation desirous of communicating to
the public by way of a broadcast may do so subject to the
provisions of this section.
• (2) The broadcasting organisation shall give prior notice of its
intention to broadcast the work stating the duration and
territorial coverage of the broadcast, and shall pay to the owner
of rights in each work royalties in the manner and at the rate
fixed by the IPAB.
• (3) The rates of royalties for radio broadcasting shall be different
from television broadcasting and the IPAB shall fix separate rates
for radio broadcasting and television broadcasting.
 Copyright
• Infringement of Copyright
A copyright in a work shall be deemed to be infringed, when any
person without a license granted by the owner of the copyright:
• (i) does anything, the exclusive right to do which is by this Act
conferred upon the owner of the copyright, or
• (ii) permits for profit any place to be used for the
communication of the work to the public where such
communication constitutes an infringement of the copyright in
the work, unless he was not aware and had no reasonable
ground for believing that such communication to the public
would be an infringement of copyright; or
 Copyright
• (b) when any person—
• (i) makes for sale or hire, or sells or lets for hire, or by way of
trade displays or offers for sale or hire, or
• (ii) distributes either for the purpose of trade or to such an
extent as to affect prejudicially the owner of the copyright, or
• (iii) by way of trade exhibits in public, or
• (iv) imports into India,
• any infringing copies of the work:
• Explanation.— For the purposes of this section, the
reproduction of a literary, dramatic, musical or artistic work in
the form of a cinematograph film shall be deemed to be an
“infringing copy”.
 Copyright
• Pellegrini v Allegrini 2 F 2d 610
• The test as to infringement of copyright is not the test of mere
likeness, but the work claimed to constitute the infringement
must be a copy, more or less servile (simply copied, without
anything more), of the copyrighted work, and not an original
treatment of subject open alike to treatment by the copyright
holder and others.
• In RG Anand v Deluxe Films (1978) 4 SCC 118, The Supreme
Court has laid down the following propositions for considering
whether there has been infringement:
 Copyright
• 1) There can be no copyright in an idea, subject-matter, themes,
plots or historical or legendary facts and violation of the
copyright in such cases is confined to the form, manner and
arrangement and expression of the idea
the author of the copyrighted work
• (2) The Courts should determine whether or not the similarities
are on fundamental or substantial aspects of the mode of
expression adopted in the copyrighted work.
• If the defendant's work is nothing but a literal imitation of
the copyrighted work with some variations here and there it
would amount to violation of the copyright. In other words in
order to be actionable the copy must be a substantial and
material one which at once leads to the conclusion
that the defendant is guilty of an act of piracy.
 Copyright
• (3) One of the surest and the safest test to determine whether
or not there has been a violation of copyright is to see if the
reader, spectator or the viewer after having read or seen both
the works is clearly of the opinion and gets unmistakable
impression that the subsequent work appears to be a copy of
the
• Where the principal elements of design of plaintiff's copyrighted
work and of defendant's allegedly infringing article are taken, as
a common source from an object in the public domain, mere
resemblance will not justify a finding of infringement.
• Publication of identical works cannot be enjoined if it is the
result of independent research.
 Copyright
• An infringement is not confined to literal and exact repetition or
reproduction; it includes also the various modes in which the
matter of any work may be adopted, imitated, transferred, or
reproduced, with more or less colourable alterations to disguise
the piracy.
• One work does not violate the copyright in another simply
because there is a similarity between the two, if the similarity
between the two results from the fact that both deal with the
same subject or have the same source.
• There must be copying involved.
 Copyright
• Because direct evidence of copying is not available in most
cases, a plaintiff can establish copying by showing
• 1) that the defendant had access to the plaintiff's work; and
• 2) that the two works are substantially similar. No amount of
proof of access will suffice to show copying if
there are no similarities.
• Even if access is present, plaintiffs cannot state
a claim if substantial similarity is lacking.
 Copyright
• Establishing substantial similarity
• Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Ltd
[2010] FCA 29 (‘Men At Work case’)
• "Kookaburra sits in the old gumtree" ("Koo-kaburra") is an iconic
Australian round, written and composed in 1934 by Miss Marion
Sinclair. It is a short musical work, consisting of only four bars.
• Two of those bars are reproduced in the 1981 recording of
another iconic Australian composition, the pop song "Down
Under" performed and record-ed by the group Men at Work.
The two bars are a part of the flute riff which was added to
Down Under after it was first composed.
 Copyright
• The resemblance between the flute riff of Down Under and the
two bars of Kookaburra did not come to the attention of the
owner of the copy-right in Kookaburra, Larrikin Music Publishing
Pty Ltd ("Larrikin"), until 2007.
• Larrikin now claims that the 1981 recording of Down Under
infringe its copy-right in Kookaburra.
• The flute riff in Down Under does not consist solely of the two
bars of Kookaburra. Indeed, where it first appears in the 1981
recording, immediately after the percussion introduction, the
flute riff contains only the second bar of Kookaburra.
• The flute riff is then heard at two later points in Down Under. At
those points the flute riff includes the first and second bars of
Kookaburra.
 Copyright
• But what must be borne in mind when considering the question
of infringement is that, on each occasion when the flute riff
appears in Down Under, it includes other notes which were not
part of Miss Sinclair's composition.
• Copyright is infringed where a person, without the license of the
owner of the copyright, reproduces a substantial part of the
work.
• In order for there to be a "reproduction" within the law of
copyright, there must be an objective similarity between the
two works and a causal connection between the plaintiff's work
and that of the defendant.
 Copyright
• There remain two principal issues:
• The first is whether there is a sufficient degree of objective
similarity between the flute riff in Down Under and the two bars
of Kookaburra.
• The second issue is whether, if I am of the view that there is the
requisite similarity, the bars of Kookaburra which are
reproduced are a substantial part of that work. That question is
to be determined by a quantitative and qualitative consideration
of the bars which are reproduced.
 Copyright
• The expert musicologist called by Larrikin, Dr Andrew Ford,
agrees that the harmony of Down Under is different from
Kookaburra.
• He agrees that there are certain other differences, but in his
opinion, the melody of the flute riff when it plays the bars from
Kookaburra is the same as the melody of the first two bars of
Miss Sinclair's round, although "it has a different feel".
• Dr Ford considers the first two bars of Kookaburra to be "the
signature" of that work.
 Copyright
• The respondents' expert witness, Mr John Armiger, agrees with
that proposition, but it is a matter of debate between the
parties as to whether this characteristic is sufficient to make
those bars a substantial part of the work.
• The debate between the expert witnesses involves a discussion
of the concept of a musical hook. Mr Ford observes that in
popular music, a hook is a short instrumental figure which (with
luck) proves to be instantly memorable and recognisable every
time the song is played.
• Dr Ford's evidence proceeds on the basis that the flute riff is the
hook of Down Under, although he recognises that it contains
certain other musical elements apart from the relevant bars of
Kookaburra.
 Copyright
• By contrast, Mr Armiger is of the view that the combination of
the other musical elements with the bars of Kookaburra creates
a new musical phrase which distinguishes it from Kookaburra.
• Whether objective similarity exists and whether a substantial
portion was taken: Ultimately the question is one of fact. It is to
be determined by the eye and the ear with the assistance of
expert evidence.
• "... the question whether he has copied a substantial part
depends much more on the quality than on the quantity of what
he has taken."
• the question as to what amounts to a reproduction of a
substantial part cannot be defined more precisely than to say it
is a question of fact and degree which depends on the
circumstances of each case.
 Copyright
• Of objective similarity of musical works is not to be determined
by a note for note comparison but is to be determined by the
eye as well as by the ear.
• the question depends to a large degree upon the aural
perception of the judge and upon the expert evidence.

• Another important principle is:

• "the more simple or lacking in substantial originality the
copyright work, the greater degree of taking will be needed
before the substantial part test is satisfied
 Copyright
• The copied features must be a substantial part of the copyright
work, but they need not be a substantial part of the infringing
work, the overall appearance of which may be very different
from the copyright work.
• The comparison involves an examination of the similarity
between the works to see whether they are sufficiently close,
numerous or extensive so as to be more likely to be the result of
copying than coincidence.
 Copyright
• The concept of a "hook"
• The concept of a hook in popular music, to which Dr Ford
referred in his evidence, is one which has been the subject of
comment in Canadian authorities, demonstrating that the
concept is well accepted.
• a hook is defined as that portion of the song that tends to stick
in a listener's mind or memory; it can be a part of the music, a
portion of the lyrics or both.
 Copyright
• In this case, there is no dispute that defendant did have access
to the plaintiff’s work.
• Court on objective similarity
• “In my opinion, there is a sufficient degree of objective similarity
between the bars of Kookaburra which are seen and heard in
Down Under to amount to a reproduction of a part of Miss
Sinclair's round. The question of whether it is a reproduction of
a substantial part of that work is a different question which I will
address later.
• The view which I have reached as to reproduction of a part of
Kookaburra follows from my aural comparison of the musical
elements, as well as my visual comparison of the notated songs,
with particular assistance from the evidence of the experts.”
 Copyright
• Is there a reproduction of a substantial part?
• Dr Ford's evidence was directed to the question of objective
similarity and his comments on the quality of the part taken are
limited to his observation that the opening bars of Kookaburra
are the signature of that work.
• It is true that Mr Armiger accepted that the first two bars of
Kookaburra are the signature of the song. But I do not consider
that the description of a part of a work as its signature is
sufficient of itself to give rise to a finding that what has been
taken is a substantial part of the copyright work.
 Copyright
• The emphasis upon the quality of what is taken introduces a
subjective element.
• Another principle to keep in mind is ‘that the more simple the
copyright work the greater degree of taking will be required.’
• The respondents submitted that there was no evidence as to the
degree of skill involved in its composition, except that it involved
skill in writing the work as a round.
• That submission should be qualified by Dr Ford's evidence that
writing a round is a "tricky and rather amusing business" be-
cause all the phrases have to fit on top of each other.
• I do not consider that what was taken from Kookaburra … was
trivial in a qualitative or quantitative sense.
 Copyright
• It is true that Kookaburra is a short work and that it is not
reproduced in Down Under as a round. But it was not suggested
by the respondents that Kookaburra is so simple or lacking in
substantial originality that a note for note reproduction of the
entire work was required to meet the "substantial part" test.
• Nor could any such submission be sustained. The short answer
to the qualitative test is to be found in the performance of the
words of Kookaburra to the tune of the flute riff in Down Under.
In my opinion, that was a sufficient illustration that the
qualitative test is met.
• Moreover, although the question of quantity is secondary to
that of quality, it is worthwhile noting that two of the four bars
or phrases of Kookaburra have been reproduced in Down Under
(or 50% of the song).
 Copyright
• It is true that Kookaburra is a short work and that it is not
reproduced in Down Under as a round. But it was not suggested
by the respondents that Kookaburra is so simple or lacking in
substantial originality that a note for note reproduction of the
entire work was required to meet the "substantial part" test.
• Nor could any such submission be sustained. The short answer
to the qualitative test is to be found in the performance of the
words of Kookaburra to the tune of the flute riff in Down Under.
In my opinion, that was a sufficient illustration that the
qualitative test is met.
• Moreover, although the question of quantity is secondary to
that of quality, it is worthwhile noting that two of the four bars
or phrases of Kookaburra have been reproduced in Down Under
(or 50% of the song).