Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

The Copyright Act provides a closed list of protected works under section 13. These works are original literary, dramatic, musical, artistic works, sound recordings and cinematographic works. Copyright law in India also protects neighbouring rights (ie, broadcast reproduction rights and performers’ rights).

The Indian courts, (notably the Supreme Court in Eastern Book Company v DB Modak (2008) 1 SCC 1 and the Division Bench of the Delhi High Court in Dart Industries Inc v Techno Plast [Order dated July 21, 2016 in FAO (OS) 326 of 2007] have laid down that not every effort or industry, or exercise of skill, results in a copyrightable work, and only those works whose creation involves some intellectual effort as well as a certain degree of creativity can be protected by way of a copyright.

 

Rights covered

What types of rights are covered by copyright?

The Copyright Act, 1957 sets out the following rights of copyright held by copyright owners:

  • In the case of literary, dramatic or musical works – the exclusive right to reproduce (including storage in any medium by electronic means, issuing copies, public performance, making any film or sound recording in respect of that work); to translate and adapt the work; and to communicate the work to the public (which is defined widely enough to cover dissemination over the internet).
  • In the case of computer programs – all rights as mentioned for literary works in addition to selling or giving on hire, or offering for sale or hire for commercial rental any copy of the computer program.
  • In the case of artistic works – to reproduce the work in any material form. This may include storing it in any medium by electronic or other means or depicting a two-dimensional work in three dimensions or vice versa. Copyright in an artistic work also includes the exclusive right to communicate the work in public, issue copies of it, include it in a cinematograph film, and translate or adapt the work in any way.
  • In the case of cinematograph films – to make copies of the film (on any medium, electronic or otherwise) including copies in the form of photographs that form a part of the film, sell or give on hire, or offer for sale or hire any copy of the film, to sell, give or offer for sale on commercial rental copies of the film and communicate the film to the public.
  • In the case of sound recordings – to make any other sound recording embodying it on any medium including storing of it on any medium, to sell or give on commercial rental or offer for sale such rental and to communicate the sound recording to the public.

 

Further, the incorporation of a literary, dramatic or musical work in a sound recording or a cinematographic film does not extinguish the separate copyright in such works, which continues to subsist in favour of the authors of such works, unless and until the copyright in these works have been specifically assigned by authors of the works to the producers of the sound recordings or cinematographic films. In cases where such assignments have been entered into by the authors of such works, the authors of the works, after the 2012 amendment to the Copyright Act, continue to retain an inalienable right to royalty in respect of commercial exploitation of such works.

The author enjoys moral rights independent of copyright, being the rights to paternity and integrity, which exist despite assignment of copyright. However, this does not extend to the adaptation of a computer program for fair dealing purposes. The act also specifically states that violation of moral rights (specific to the right to integrity) is to be judged objectively.

Moral rights can be enforced by the legal representatives of the author. The 2012 amendments to the Act provide that a legal representative of an author can exercise both paternity as well as integrity rights in a work. The 2012 amendments also consciously omit the previous co-extensive term of moral rights with copyright by specifically removing the copyright term restriction on a claim for right to integrity by the legal representative. Moral rights are not assignable (although on general principles as it is a civil right and not a fundamental right under the Indian constitution, moral rights can be waived).

 

Excluded works

What may not be protected by copyright?

The ‘idea/expression’ dichotomy is applied generally, as in other common law jurisdictions, as required under article 9.2 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Further, any work that is made substantially from the infringement of any other work does not enjoy any copyright protection.

As per section 15 of the Copyright Act, a design (which may be the reproduction of an original artistic work) does not get copyright protection if it is registered under the Designs Act, 2000. Additionally as per section 15(2) of the Copyright Act, 1957, copyright in any design ceases to have copyright protection if it is capable of being registered under the Designs Act, 2000 but has not been and more than 50 copies of the work have been made by any industrial process. However, in a recent judgment in 2015 by the Delhi High Court, it has been held that in order to be a subject matter registrable as a design for the operation of section 15(2), the work should be ‘novel’ and this is the sole condition for the operation of section 15(2) in order to deny copyright protection to artistic works not registered as designs.

 

Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

The Copyright Act contains an exhaustive list of non-infringing uses. The doctrine of ‘fair dealing’ applies to the extent and nature of such uses as specifically delineated in section 52 of the Copyright Act. The Delhi High Court, in the landmark judgment of Chancellor, Masters & Scholars of University of Oxford v Rameshwari Photocopy Services 2016(68) PTC 386, observed that all defences provided under section 52 have to be analysed against the touchstone of fairness and that the ‘purpose of the use’ would determine whether it is fair use.

In that case, the court held that in the context of teaching and the use of copyrighted material under section 52(1)(i), the fairness in the use can be determined using the touchstone of ‘extent justified by the purpose’.

Further, the Division Bench of the Delhi High Court in another leading case, Syndicate of the Press of the University of Cambridge v BD Bhandari 2011 (47) PTC 244 (Del.) (DB), held that the ‘Four Factor’ test as enunciated by the courts in the United States (ie, the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion taken, and the effect of the use upon the potential market) would be applicable in determining fair dealing of copyrighted works under section 52(1)(a) of the Copyright Act.

Architectural works

Are architectural works protected by copyright? How?

Yes. Architectural works are protected as a form of artistic work. However, an injunction cannot be taken out against a structure that has already been erected.

Recently, in the case of Raj Rewal v Union of India & Ors, the Delhi High Court held that copyright, being a creation of statute, will not prevail over a defendant’s constitutional right to freely deal with their property and land. Accordingly, the court held that an architectural work created on another person’s land may be liable to demolition. Further, as regards to the moral rights of the architect, the court held that such demolition would not amount to a distortion, mutilation or modification of the work and that therefore would not amount to an infringement of the architect’s.

Performance rights

Are performance rights covered by copyright? How?

The right of performance (that is, the right to perform a work in public) is covered by the Indian Copyright Act. Section 14 lists the exclusive rights of all copyright holders and section 14(a)(iii) recognises the exclusive right of an author of a literary, dramatic and musical work to perform the work in public.

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

Yes. The Copyright Act provides for broadcasting reproduction rights and rights of performers over their performances under chapter 8 of the Act. Droit de suite is recognised under section 53A of the Act.

Broadcast Reproduction Rights under section 37 of the Copyright Act are special rights granted to broadcasting organisations in respect of their broadcasts. These rights comprise:

  • the right to re-broadcast a broadcast;
  • the right to cause a broadcast to be heard or seen by the public on payment of any charges;
  • the right to make sound recordings or visual recording of broadcasts, as well as the right of reproduction in respect of such sound or visual recordings; and
  • the right to sell or give on commercial rental or offer for sale or rental any sound or visual recording of the broadcast.

 

Broadcast reproduction rights subsist for 25 years from the beginning of the year following the year in which the broadcast is made.

Performers’ rights are recognised under sections 38 and 38A of the Copyright Act, 1957 as special rights, separate from copyright. These exclusive rights of a performer are independent of and without prejudice to the rights conferred on authors of works that are performed.

The exclusive rights of a performer consist of the following:

•      the right to make sound recordings or visual recordings of the performance including reproduction of it in material form including storing of it any medium by electronic or other means and issuance of copies to the public;

•      communication of it to the public and selling or giving it on commercial rental or offer for sale or for commercial rental; and

•      the right to broadcast or communicate the performance to the public, except where the performance is already broadcast.

 

Once a performer has, by way of a written agreement, given his or her consent for incorporation of his or her performance in a cinematograph film, he or she cannot object to the producer enjoying the exclusive performer’s rights, provided that there is no contract to the contrary. Performers’ rights last for 50 years from the beginning of the year following the year in which the performance is made.

Performers are further also entitled to an inalienable right to royalties from commercial exploitation of a performance (ie, the right to receive royalties (R3 right)). This right is unaffected by a performer’s written consent to allow his or her performance to be incorporated in a film. Hence, the right to royalties of performers would have to be dealt with separately from other performers’ rights when parties negotiate upon how the performance will be incorporated in a film and the mutual considerations between them.

With the passing of the Copyright (Amendment) Act, 2012, the concept of performers’ rights has been cemented and exclusive rights have been granted to a performer akin to copyright in original works. This is in accordance with provisions of the WIPO Performances and Phonograms Treaty. The 2012 amendments to the Copyright Act have also granted moral rights to performers giving them extra protection. The rules accompanying the Copyright Act further provide the setting up of a separate ‘performers’ society’ for each class of ‘performer’.

The Indian Singers’ Rights Association (ISRA) has been registered with the government of India as a copyright society for singers as a class of performers. The purpose of the copyright society is to administer the rights of the singers who are its members and collect royalties on their behalf for their exclusive rights as per the Copyright Act. The Delhi High Court has, on many occasions, upheld ISRA members’ right to receive royalties and has restrained third parties from infringing this right by not paying the royalties due to performers.

Section 53A of the Copyright Act provides a special right to an author who is the first owner of a painting, sculpture, drawing, or manuscript of a literary or dramatic or musical work. Such an author has the right to receive a share in the resale price of the original painting, sculpture, drawing, or manuscript of a literary or dramatic or musical work. The share of the author in the resale price shall be such as fixed by the Appellate Board. Further, this special right is coterminous with the term of copyright in the concerned work.

Moral rights

Are moral rights recognised?

Yes. The Copyright Act provides for protection of moral rights of authors in their works and of performers in their performances. Performers’ moral rights were provided by the Copyright (Amendment) Act of 2012.

Moral rights of an author consist of the following:

  • the right to claim authorship of the work (paternity right); and
  • the right to claim damages in respect of any distortion, mutilation, modification or other acts in relation to the work if such distortion, etc, would be prejudicial to his or her honour or reputation (integrity right).

 

Prior to the 2012 amendments, such remedy was available only against mutilation, modification, etc, of a work during the term of the copyright in the work. However, this moral right is now a perpetual right of the author and his or her heirs.

A few instances of Indian Courts passing orders to enforce and protect moral rights of authors include:

  • Amar Nath Sehgal v Union of India 2002 (25) PTC 56 (Del): In this case the government of India had commissioned a sculptor to create a mural for the lobby of a central government ministry. Once the sculptor had completed the mural, it was displayed for a period of time after which it was pulled down and dumped by the government of India. The sculptor then sued the government for violating his moral rights, comprising of his right of paternity and right of integrity, both of which were independent of copyright in the mural. The court in this case granted the defendant damages of 50,000 rupees for violation of his moral rights.
  • Jatin Das v Union of India, Orders dated 2 August 2018 and 19 September 2019: In this case, on the first day of hearing, the Delhi High Court issued an interim injunction in favour of an artist who had sought to protect the integrity of his work, a 30ft tall steel art installation entitled ‘Flight of Steel’, which had been commissioned for the Bhilai Steel Plant in 1996. The plaintiff, a few years after the artwork was installed, discovered that the sculpture had been broken into pieces, removed to a nearby zoo and painted over. The court, in order to enforce the moral rights of the plaintiff as an author, issued an interim injunction against the Union of India and the concerned authorities ordering that no further loss, damage or mutilation was to be caused to the art installation until the suit is decided. Thereafter, the court fashioned a unique remedy wherein it constituted a committee of senior officials of the central government as well as the director of the National Gallery of Modern Art to look into the matter and suggest a fair solution. The committee, after holding multiple meetings with all stakeholders concerned, recommended relocation of the sculpture to a new location selected by the artist, to be undertaken under the supervision of the artist at the cost of the defendant. The court decreed the matter in terms of this recommendation and also directed the defendant to pay an honorarium of 15,000 rupees to the artist for this relocation of the sculpture.

 

Moral rights of a performer consist of the following:

  • the right to claim to be identified as the performer of his or her performance except where omission is dictated by the manner of the use of the performance; and
  • the right to restrain or claim damages in respect of any distortion, mutilation or other modification of his or her performance that would be prejudicial to his or her reputation. (Mere removal of a portion of a performance for the purpose of editing, or to fit a recording of a performance within a limited duration, or any other modification required for purely technical reasons, is not deemed to be prejudicial to the performer’s reputation.)

 

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These contents have been verified between March and May 2020.