Copyright Act, 1957

Questions & Answers

Ans. Copy right is a creation of Statute. It is a form of 'Intellectual property' different from physical property. It is like an ownership of a house, one can sell it, hire it lease it etc. It is a private right and has to be protected by the owners like their any other property. State helps the individuals to protect their these rights. It is a negative right to prevent others to do others from copying or reproducing the original work and it is right which gives the monopoly to do that work except to be done by others.

In Sulmanglam vs Meta Musical, AIR 2000 Mad. 454, Madras HC held that

"the right which a person acquires in his literary or artistic work which is the result of his intellectual labour is called his copy right."

'Copy right is not restricted to literary or artistic work. It also applies to other works also like, dramatic, musical, cinematographic film, computer program, architecture work and sound recording or any other work which is the result of intellectual labour of that person. Therefore, "Copy right

Statutory Definition of Copy Right;

Section 14 of the Act defines the meaning of Copyright.-

"copyright" means the exclusive right, :

To do or authorize the doing of any acts in respect of a work in which copy right exists. The exclusive right for doing the respective acts extends not only to the whole work but also to its any substantial part or to any translation or adaptation of it.

Section 14 lays down the following acts for different works in different fields as under :

(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 the storing of it in any medium by electronic means;

(ii) to issue copies of the work to the public

(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;

(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 :

However, such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.

(c) in the case of an artistic work,--

(i)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;

(ii)to communicate the work to the public;

(iii)to issue copies of the work to the public;

(iv)to include the work in any cinematograph film;

(d) in the case of a cinematograph film,--

(i) to make a copy of the film including a photograph of any image forming part thereof;

(ii) to sell or give on lure or offer for sale or hire, any copy of the film

(iii) to communicate the film to the public;

(e)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.

A copy which has been sold once shall be deemed to be a copy already in circulation

Ans. The claim of the first ownership is based on authorship. Section 17 of the Act provides ownership to the author of the work.

According to S. 17, the author of a work shall be the owner of the copyright

However, there are certain exceptions to this rule as laid down in S. 17 and in various works Where the author of the work is an employee and he is employed to do the work for valuable consideration, then in such cases the owner of the copyright of the work done by the employee would be the employer in the absence to a contract to the contrary.

However, for different works, the ownership in the Copy Right in the work is determined as under :

(i) In case of a literary, dramatic or artistic work made by the author who is an employee of the proprietor of a newspaper, magazine or similar periodical - the said proprietor shall be the first owner of the copyright :

- for the purpose of publication - or to the reproduction of the work for publication.

but in all other respects the author shall be the first owner of the copyright in the work;

(ii) in the case of a photograph or a painting or portrait, or an engraving or a cinematograph film - the person who has taken the photograph or drawn the painting or portrait or made the film shall be the first owner.

However, if this person has done these works for valuable consideration at the instance of any person, such person shall be the first owner of the copyright.

(iii) In 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

(iv) In the case of a Government work, -- Government shall, be the first owner of the copyright therein;

(v) 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 be the first owner of the copyright.

(vi) In the case of an international work to which the provisions of section 41 apply, the international organization concerned shall be the first owner of the copyright.

(vii) Musical Work

The First owner of a copy right in a musical work is the composer. If the music is composed in the course of employment, the employer will be the first owner. The film producer who commission a music composer to compose the music for his film does not become the owner of copyright but only gets a licence to use that music in his film.

(viii) Artistic Work - The artist who created the work. The Employer if the artist created the work as an employee.

(ix) Shorthand Writer - the person who dictated the matter

(x) Employee Teacher - if an employee teacher writes a book --- he is the owner of copyright.

(xi) Collective Works - are encyclopedia, dictionary, year book, newspapers etc----the First owner of the copy right in the collective work as a whole is the person who has collected edited and organized the work.

(xii) Architects - Architect is the First owner of the copy right of the building plans

(xiii) Work done in the Course of Employment

Ans. (i) Literary, dramatic and musical work. Computer programs/software are covered within the definition of literary work;

(ii) Artistic work;

(iii) Cinematographic films which include sound track and video films;

(iv) Record-any disc, tape, perforated roll or other device.

Ans. Section 18, 19 and 19-A of the Act deal with the assignment of Copy right

According to S. 18

(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.

(2) An assignment may be general or subject to limitations. It may be for whole of the term of the Copy right or for a limited period.

(3) After the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee, shall be treated as the owner of copyright.

(4) An author may assign all his rights in all countries or may assign only some of his rights or may assign some rights in some countries and other rights in some other countries depending upon his own volition.

(5) In case of assignment of a future work, the assignment will become effective from the date when the work comes into existence.

(6) 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.

Though the ownership of copy right is transferable, yet it is not exactly the same as the ownership of a material object in which the copyright is embodies.

For example, a painting by a painter on a canvass. The buyer may purchase the painting and become its owner but he does not become the owner of the copyright in the painting.

Modes of Assignment

Transfer of Copy Rights may be done by the following modes:

i) By Assignment

ii) By will

iii) By operation of law

iv) Grant of license including compulsory license.

There are no specific modes of assignment of Copy rights. Still, Section 19 of the Act deals with various requirements for assignment of Copy rights.

It lays down as under :

1. An assignment is valid only if it is in writing and signed by the assignor or his authorized agent.

2. The Deed of Assignment must contain the following :

v) identity of the work

vi) the rights assigned, duration and territorial extent of assignment.

vii) The amount of royalty payable to the author or his legal heirs

3. In case, the rights assigned are not exercised by the assignee for one year from the date of assignment, the assignment lapses on expiry of one year.

4. In case no period of assignment is written in the assignment, it is deemed to be for a period of 5 years from the date of assignment.

5. If the territorial extent is not mentioned in the assignment deed, it shall be deemed to have been assigned only in India.

6. These provisions are not applicable to assignments made before the coming into force of Copyright (Amendment) Act, 1994.

Registration of the assignment is not necessary, however, if the registered assignment deed has a better evidentiary value.

In Srimangal & Co. vs Books(India) Pvt. Ltd, AIR 1973 Mad 49, it has been categorically held that no particular form of assignment is required and it is sufficient if the assignment can be culled out from some document in writing in this regard.

According to S. 19-A, Disputes arising in respect of assignment are settled by Copy Right Board which has the powers to even revoke the assignment in certain cases.

Ans. Chapter X of the Copyright Act containing Sections 44 to 50A deal with various aspects of registration of copyright. The mechanism for registration of copyright has been contemplated under Section 44 of the Act. It is evident from the provisions of the aforesaid section that registration of the work under the Copyright Act is not compulsory and is not a condition precedent for maintaining a suit for damages, if somebody infringes the copyright. Registration is not a prerequisite for acquisition of a copyright (Nav Sahitya Prakash & Others v. Anan Kumar & Others AIR 1981 All 200).

Sections 44 and 45 of the Act is only an enabling provision and the provisions contained therein do not affect common law right to sue for infringement of the copyright, therefore, registration of the work under the Act is not compulsory and that registration is not a condition precedent for maintaining a suit for damages for infringement of copyright (R. Madhavan v. S K Nayar AIR 1988 Ker 39). The only effect of registration is what is stated in section 48, to wit, that it shall be prima facie evidence of the particulars entered in the register. There is no indication in any of the provisions of the Act, read individually or a whole, to suggest that registration is condition precedent to subsistence of copyright or acquisition of ownership thereof.

There is no section in the Copyright Act, 1957, to the effect that the author can have no right or remedy unless the work is registered. Satsang and Another v. Kiron Chandra Mukhopadhyay & Others AIR 1972 Cal 533.In Jayanthilal M. Munoth and Ors. v. M. Durairajan, [2006] 132 Comp Cas 797(Mad) where a petition was filed for infringement of copyright and the same was challenged by the respondents on the ground that that there was no registration of copyright. The Court held that registration of copyright was not a pre-condition for filing a suit or for launching prosecution for violation of copyright.

The Register of Copyrights is to be maintained by the Copyright Office to enter the names or titles of works and the names and addresses of authors, publishers and owners of copyright. The Register of Copyrights is to be kept in six parts, namely, Part I Literary works other than computer programmes, tables and compilations including computer data bases and dramatic works; Part II Musical works; Part III Artistic works; Part IV Cinematograph films; Part V Sound Recording; and Part VI Computer programmes, tables and compilations including computer data bases.

Chapter VI of the Copyright Rules, 2013, as amended, sets out the procedure for the registration of a work.

a. Application for registration is to be made on Form XIV (Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules;

b. Separate applications should be made for registration of each work;

c. Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules ; and

d. The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.

e. Every such application can be filed in the Copyright Office by Person or by post or by online filing facility as provided on the website of the Copyright Office.

f. If no objection to such registration is received by the Registrar of copyrights within thirty days of the receipt of the application, the Registrar, if satisfied about the correctness of the particulars given in the application, enter such particulars in the Register of Copyrights.

Ans. S. 51 of the Act explains the infringement in general sense.

According to S. 51, the Copy right in a work shall be deemed to be infringed :

(a) where, a person, without a licence from owner of the copyright or the Registrar of Copy rights or in contravention of the conditions of a licence granted or of any condition imposed by a competent authority :

(i) does anything for which the exclusive right to do is conferred upon the owner of the copyright, or

(ii) permits any place to be used for the communication of the work to the public for profit where such communication constitutes an infringement of the copyright in the work.

(b) when any person either for the purpose of trade or to affect prejudicially the owner of the copyright

(i)makes for sale or hire, or sells or lets for hire, or displays or offers for sale or hire by way of trade or

(ii) distributes, or

(iii) exhibits in public, or

(iv) imports into India,

any infringing copies of the work.

However, the import of one copy of any work, for the private and domestic use of the importer.

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".

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

According to S. 2(m), Infringing Copy means :

(i) in relation to a literary, dramatic, musical or artistic work, - its reproduction otherwise than in the form of a cinematographic film;

(ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

(iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

(iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists the sound recording or a cinematographic film of such programme or performance,

if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

Thus, the essential ingredients of the infringement depending upon the work are as under :

1. Reproduction of the work in material form.

2. publication of the work

3. communication of the work to the public

4. performance of the work in public

5. making of adaptations and translations of the work and doing any of the acts in substantial part of the work.