Copyright

IN Law and Policy | 17/10/2007

The Copyright Act, 1957

13. Works in which copyright subsists- (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say -

(a) Original, literary, dramatic, musical and artistic works,

(b) Cinematograph films, and

(c) [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. a date to be notified) for "records" sound recordings.]
(2) Copyright shall not subsist in any work specified in sub section (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless-

(i) In the case of 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 such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India,

(ii) In the case of an unpublished work other than a [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records") work of architecture], the author is at the date of making of the work a citizen of India or domiciled in India, and

(iii) In the case of a [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records")] work of architecture, the work is located in India

Explanation- In the case of a work of joint authorship, the conditions conferring copyright specified in this sub section shall be satisfied by all the authors of the work.

(3) Copyright shall not subsist-

(a) In any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work,

(b) In any [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records")] sound recording made in respect of a literary, dramatic or musical work, it in making the [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records")] sound recording, copyright in such work has been infringed.

(4) The copyright in a cinematograph film or a [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records")] sound recording shall not affect the separate copyright in any work in respect of which a substantial part of which, the film, or as the case may be, the [(Note: Subs. by Act 38 of 1994, S.2 (w.e.f. for "records")] sound recording is made.

(5) In the case of a work or architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods or construction.

NOTES

"Original" Meaning - The word ¿original¿ does not in this connection mean that the work must be the expression or original or inventive though, Copyright Acts are not concerned with the origin of ideas, but with the expression of though; and in the case of ¿literary work¿ with the expression of thought in print or writing. The originality which is required relates to the expression of the thought; 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.

In order to obtain copyright production for literary, domestic, musical and artistic works, the subject dealt with need not be original, nor the ideas expressed are something novel. What is required is the expenditure of original skill or labour in execution and not originality of thought.

No original thought or original research is required in order that a literary work may be deemed to be original. The standard of originality which is required is a low one.

In modern complex society provisions have to be made for protecting every man¿s copyright, whether high or small, whether involving a high degree of originality as in a new poem or picture, or only originality at the vanishing point as in a law report.

Copyright in abridgement - Strictly speaking, an abridgement of an author¿s work means a statement designed to be complete and accurate of the thoughts, opinions, and ideas by him expressed therein, but set forth much more concisely in the compressed language of the abridger.

Selections - Where the plaintiff¿s selection of poems was borrowed by the defendants, it was held that defendant’s book had infringed the copyright of the plaintiff. The true principle in all these cases is, that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work, that is, in fact, merely to take away the result of another man¿s labour, or, in other words, his property.

Reports of judgments - It is generally true that in the reports of judgements the reporter has no copyright, but is cannot be said that in the selection of cases and in the arrangement of the reporting the reporter has not the protection of law. The defendant is entitled to report such judgements as he obtains by expenditure of his time, labour and money but where he fails to exert his own energies, he cannot be allowed to avail himself of other people¿s industry.

"Whilst all are entitled to resort to common sources of information none are entitled to save themselves trouble and expense by availing themselves for their own profit of other men¿s works, subject to copyright and entitled to protection."

Question papers - In a Patna case it has been held that question papers set at examination are original literary works though the paper-setter may have copied questions from textbooks. Persons who set the question papers are authors of the work and they are the first owners of the copyright therein.

14. Meaning of copyright- 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,

(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

(i) 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 sell or give on hire, or offer for sale or hire, any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions

(d) In the case of an artistic work,-

(e) To reproduce 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,

(i) To issue copies of the work to the public not being copies already in circulation

(ii) To issue copies of the work to the public not being copies already in circulation

(ii) To include the work in any cinematograph film,

(iii) To make any adaptation of the work

(iv) To do in relation to an adaptation of the work any of the acts specified in relation to the work in sub clauses (i) to (iv)

(f) In the case of a cinematograph film-

(g) To make a copy of the film, including a photograph of any image forming part thereof.

(i) To sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions.

(ii) To communicate the film to the public

(h) In the case of a sound recording-

(i) To make any other sound recording embodying it,

(ii) To sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions,

(iii) To communicate the sound recording to the public

Explanation - For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.]

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 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 in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purposes 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.

(c) In the case of a work made in the course f 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.

(d) [(Note: Ins. by Act 23 of 1983, S.8 (w.e.f. 9-8-1984) 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 f 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;]

(e) 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.

(f) [(Note: Ins. by Act 23 of 1983, S.8 (w.e.f. 9-8-1984) 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 28-A, "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;]

(g) In the case of a work to which the provisions of Section 41 apply, the international organisation concerned shall be the first owner of the copyright therein.

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.

(2) Whereas the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights to assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly.

(3) In this section, the expression, "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

19. Mode of assignment - [(Note: S.19 renumbered as sub-section (1) thereof by Act 23 of 1983, S.9 (w.e.f. 9-8-1984) (1)] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or his duly authorised agent.

(2) [(Note: Subs. by Act 38 of 1994, S.8 (w.e.f. a date to be notified) The assignment of copyright in nay work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the rights assigned to him under any of the other sub sections of this section 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 the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub section (2) or sub section (3) or sub section (4) or sub section (5) or sub section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.]

19-A. Dispute with respect to assignment of copyright - (1) If an assignee fails to make sufficient of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment.

(2) If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers necessary, pass such order as it may deem fit including an order of the recovery of any royalty payable.

Provided that the Copyright Board shall not pass any order under this sub section to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author.

Provided further that no order of revocation of assignment under this sub section shall be made within a period of five years from the date of such assignment.

NOTES

Assignment of copyright - Copyright is beneficial interest in movable property but the owner of the right has actual or constructive possession of the same and therefore copyright hardly comes within the purview of "actionable claim", as defined by the transfer of Property Act.

20. Transmission of copyright in manuscript by testamentary disposition - Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless the contrary intention is indicated in the testator’s will or any codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

Explanation- In this section, the expression "manuscript" means the original document embodying the work, whether written by hand or not.

21. Right of author to relinquish copyright - (1) The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of Copyrights and thereupon such rights shall, subject to the provision of sub section (3), cease to exist from the date of the notice.

(2) On receipt of a notice under sub section (1), the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner, as he may deem fit.

(3) The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice referred to in sub section. (1).

22. Term of copyright in published literary, dramatic, musical and artistic works - Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until [(Note: Subs. by Act No.13 of 1992, S.2, w.e.f. 28-12-1991. In this regard S.3 of Act No.13 of 1992 reads: "3. Copyright not to subsist if term has expired - For the removal of doubts, it is hereby declared that copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before the commencement of this Act.") Sixty years] from the beginning of the calendar year next following year in which the author dies.

Explanation - In this section the reference to the author shall, in the case of a wok of joint authorship, be construed as a reference to the author who dies last.

25. Term of copyright in photographs - In the case of a photograph, copyright shall subsist until [(Note: Subs. by Act No.13 of 1992, S.2, w.e.f. 28-12-1991. In this regard S.3 of Act No.13 of 1992 reads: "3. Copyright not to subsist if term has expired - For the removal of doubts, it is hereby declared that copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before the commencement of this Act.") sixty years] from the beginning of the calendar year next following the year in which the photograph is published.

29. Term of copyright in works of international organisation- In the case of a work of an international organisation to which the provision of Section 41 apply, copyright shall subsist until [(Note: Subs. by Act No.13 of 1992, S.2, w.e.f. 28-12-1991. In this regard S.3 of Act No.13 of 1992 reads: "3. Copyright not to subsist if term has expired - For the removal of doubts, it is hereby declared that copyright shall not subsist by virtue of this Act in any work in which copyright did not subsist immediately before the commencement of this Act.") sixty years] from the beginning of the calendar year next following the year in which the work is first published.

63. Offence of infringement of copyright or other rights conferred by this Act - Any person who knowingly infringes or abets the infringement of-

(a) The copyright in a work, or

(b) Any other right concerned by this Act [(Note: Ins. by Act 38 of 1994, S.21 (w.e.f. a date to be notified)) except the right conferred by Section 53-A]

[(Note: Subs. by Act 65 of 1984, S.5 (w.e.f. 8-10-1984)) shall be punishable with imprisonment for a term which shall not be less than six months but which may extended to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees:

Provided that [(Note: Ins. by Act 38 of 1994, S.21 (w.e.f. a date to be notified)) where the infringement has not been made for gain in the course of trade or business] the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees.]

Explanation - Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section.

63-A. Enhanced penalty on second and subsequent convictions - Whoever having already been convicted of an offence under Section 63 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than one lakh rupees but which may extend to two lakhs rupees.

Provided that [(Note: Ins. by Act 38 of 1994, S.22 (w.e.f. a date to be notified)) where the infringement has not been made for again in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgement, impose a sentence of imprisonment for a term of less than one year or a fine of less than one lakh rupees.

Provided further that for the purpose of this section, no cognizance shall be taken of any conviction made before the commencement of the Copyright (Amendment) Act, 1984 (65 of 1984).]

76. Protection of action taken in good faith - No suit or other legal proceeding shall lie against any person in respect of anything which is in good faith done or intended to be done in pursuance of this Act.

Case Law

R G Anand v. M/s Delux Films and other AIR 1978 SC 1613

Judges : S Murtaza Fazal Ali, Jaswant Singh, R S Pathak

" 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 idea by the author of the copyright work." Para 46

"Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of copyright arises.

Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works clearly incidental no infringement of copyright comes to existence.

As a violation of copyright amounts to an act of privacy it must be proved by clear and cogent evidence after applying various tests." Para 46.

Further Information

The link to the following government website contains information on

- Copyright act

- Copyright piracy

- Existing and proposed amendments