Who’s Intellect? Who’s Property?

Dr. Madabhushi Sridhar*

The print media comprises of newspapers, books both fiction and

non-fiction. The copyright law regulating rights over economic benefits
of ‘owners’ of electronic media are totally different in its impact
compared to that of authors in print media. Electronic media refers to
TV, radio, music album publishers, Internet, or online publishers,
compute programme writing industry, etc. In electronic media, the
investments are high, production process is complicated and involves
rights of writers, performers, technicians, directors, helpers and
producer besides distribution agents. When the property is changing
hands in the print media and first owner hardly remains a ultimate
owner of his own intellectual property as that concentrates in
publishers, are they are getting the due protection from copyright
regime? This article is an attempt to find an answer to this question.

The law of copyright is the extension of right of freedom of

speech and expression, which means that if an individual has freedom
of speech and expression that person will naturally get a right to
protect that intellectual work as a property. The importance of
copyright as an intellectual property has increased enormously in
recent times due to the rapid technological development in the field of
printing, music, communication, entertainment and computers. The
related rights or neighbouring rights (droits voisins) means those rights
which have developed parallel and related to copyright such as rights
granted to protect performers, producers of phonograms and
broadcasting organisations in the performance of their works.

Almost all democratic Constitutions provided a guarantee for

right to freedom of speech and expression. The laws of copyright
enhance the value of such speech and expression, because it gives an
effective protection to the creative speeches and expressions like
poetry, criticism etc, from being reproduced without a licence.
Copyright Law cannot be viewed as an obstruction or restriction on the
freedom of speech and expression, because the freedom is available to
express his own views and views of others also, but not to express
views of others as his own.

First Amendment to the US Constitution prohibits Congress from

making any law abridging the freedom of speech & expression or of
press. The same Article One (Section Eight) states that the Congress
shall have power…to permit progress of science and useful arts by
securing for limited time the authors and inventors exclusive rights to
their respective writings and discoveries". The Constitution of India,
provides for right to freedom of speech and expression1.

Copyright is the exclusive right of the author to derive economic

benefits from his own writing or artistic performance or creative work.
Copyright Regulation basically protects the interests of writer or
creator or performer from commercial exploitation by others. As
nobody can own or perpetuate perpetual vested interest in knowledge,
even the copyright regime throws every creative writing or invention
for the world open after certain prescribed period.

The copyright law provides an incentive to creative activity and

then permits the society to benefit at large. After the invention of
printing press the multiplying of any creative writing became much
easier and necessity to protect the right for the creator also increased.
Copyright is relatively a modern concept that came into existence with
British Rule.

Intellectual property protects application of ideas and

information that are of commercial value. The fund of exploitable ideas
become more sophisticated and hopes for a successful economic
future depends increasingly upon the superior corpus of new
knowledge and fashionable conceits. Various types of ideas are now
being protected all over the world, for instance, the new plant
varieties, the circuit of silicon chip etc.

It is in fact, not possible to confer on the creator of an idea a

perpetual property in it against imitators. The political and economic
implications of such a complete protection will be remarkable.
However, others accord a set of limited forms of protection against
some types of exploitation. The objective is to achieve a balance
appropriate to the economic needs of the country with a justifiable
reason.

Origin of Copyright Law and Protection of Publisher’s interest

The origin of copyright itself is to protect the interests and their

commercial of publishers. After printing was invented, a printer or
publishing entrepreneur entered the risk of investing on printing such
creative idea. These entrepreneurs were considered to be forefathers
of present publishers. They are first to propose to acquire the
exclusive copyrights over such ideas and printable creativity. The

* Author is MHRD Chair Professor of Intellectual Property Rights and Coordinator

1

NALSAR Proximate Education at National Academy of Legal Studies and Research,

NALSAR University of Law, Hyderabad and a columnist.
Article 19 (1) (a) of Constitution of India
stationers first found support from the Crown. In 1534 they secured
protection against the importation of foreign books and in 1556, the
Queen gave powers to the stationer through a charter, to destroy the
books printed in contravention of statute or proclamation. Thus a
licensing system was introduced. Stationer’s company’s licensing was
the origin of copyright law in England.

Ultimately it evolved into legislation providing and protecting

copyright in 1709. It is called Statute of Anne, which granted
recognition to limited statutory monopoly rights for the author of
works. It was an attempt to achieve balancing of both the individual
and public interest. Authors and assigns acquired sole right and liberty
of printing books. The law is interested in protecting commercial rights
and commercial exploitation. Such a right is available only up to 14
years from first publication and “no longer”. Enforcing depended upon
registering the book’s title before publication with the Stationer’s
company. It was enforceable by seizure and penalties. According to
Section 1 the booksellers and printers were named ad falling among
the author’s assigns. The right lasted for 14 years from first
publication and no longer” but if the author was still living at the end,
the right was returned to him for another 14 years. An author ought to
have a right of protection over his creative work before it was
published. But it was not covered by the Act. It is an exclusive right for
limited duration. The Statute of Anne was challenged in Donaldson v.
Beckett2, where the House of Lords emphasized the need for balance
between rights of individual and public interest. Lord Camben
observed: "Knowledge has no value or use for the solitary owner; to be
enjoyed it must be communicated. Glory is the reward of the science,
and those ho deserve it scorn all meaner views"3.

The relation between the author and exploiter offers many

opportunities for tension and disagreement. In continental Europe the
need to safeguard the artistic integrity of the author in the course of
such relations was eloquently argued, in the latter nineteenth century.
In many copy right laws the author was given moral rights which
entrenched by making inoperative any surrender of the rights in
advance of the time when the author might want to rely upon them.
These rights typically include:

a. the right to decide to make the work public;

b. the right to be naked as author; and
c. the right to object to revisions affecting honour or
reputation.

2
(1774) 4 Burr 2407; 98 ER 257
3
ibid.
Some systems have gone to the extent of adding some more rights
like:

a. right to have the work withdrawn upon payment of

compensation; and
b. the right to object to destruction.

In the high age of contractual freedom, relations were left to be

determined by agreement, supported by such terms as the court might
imply in the name of business efficacy and subject to the torts of
defamation, injurious falsehood and passing off.

Britain was a good exporter of copyright material and thus had a

strong interest in reciprocal copyright arrangements with other
countries. British first gave consideration to home publishers and then
admitted foreign authors to copyright upon condition that the work was
first published within the country. French granted protection to all
authors of works published in France and to works of Frenchmen
published anywhere.

According to Paul Goldstein, the traditions of copyright and

author’s right rest on sharply differing premises. Copyright’s
philosophical premise is utilitatian: the purpose of copyright is
stimulate production of the widest possible variety of creative goods at
the lowest possible price. By contrast, author’s right is rooted in the
philosophy of natrual rights; an author is entitled to protection of his
work as a matter of right and justice. The ideal author’s right legislator
will vote to extend protection without any showing of social necessity
and will reject it only if the extended protection would materially
hamper socially valuable uses of protected works. Berne Convention
bridges the two traditions, with the result that its extensive minimum
standards have dictated substantively similar rules for countries in
both camps. Similarities in economic, political, and social structures
across the two systems also explain the convergence, as do local
industry politics. Professor William Cornish is certainly correct to
observe that “over primary issues of making the rights granted legally
effective and so economically meaningful, the two approaches flow
together in a single stream. Where there are divergencies, they are
often more the product of low political lobbying rather than of high and
disinterested thought.4.

National laws on copyright and neighboring rights are far more

similar than they are different. Widespread adherence to the Berne
Convention for the Protection of Literary and Artistic Works explains
4
Paul Goldstein, International Copyright, Principles, Law and Practice, OUP, 2001, p 3
much of this harmony. Around 140 countries belong to Berne Union.
The TRIPS Agreement with 135 adherents, brings national laws into
more immediate compliance with Berne norms as well as with norms
introduced by the TRIPS agreement itself. A handful of universal
principles are common in national copyright laws. One is the axiom
that copyright law will protect only original expression- leaving ideas –
building blocks of creativity- free for all to use. Legislation or case law
in every country holds that a literary work’s themes, plots, and stock
characters are unprotectable, as are discrete colours and shapes in
visual art, and rhythm, notes and harmony in music5.

The Copyright Act, 1957 and the Copyright Rules, 1958 with
relevant amendments, is the law applicable in India. The underlying
principle of copyright protection is that specific creative expressions
are protected but not the ideas behind them. Copyright comes into
existence as soon as a work is created.

The authorship of different types of works is as follows:

work author
Literary or dramatic work Author of the work
Musical Work Composer
Artistic work except photography Artist
Photograph The person taking photograph
Cinematograph film Owner of the film at the time of its
completion
Record Owner of the original plate from
which the record is made, at the
time of making of the plate.
Video programms like Tele-serials, Owner of the programme at the
Albums etc time of its completion

First Owner of the Copyright

As a general rule, the author of a work is the first owner of
copyright in it, as specified in Section 2(d). However, in the absence of
any agreement to the contrary, in the case of
(i) 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, that
proprietor shall be the first owner of copyright so far as it relates to
the publication in any newspaper, magazine or periodical or to the
reproduction for that purpose, but in all other respects the author
shall be the first owner of copyright.

5
ibid, page vii of Preface.
(ii) a photograph, painting, portrait, engraving or a Cinematograph film
made for valuable consideration at the instance of any person, such
person shall be the owner of copyright.

(iii) a work made in the course of the author's employment under a

contract of service or apprenticeship, the employer shall be the first
owner of copyright.
(iv) any address or speech delivered in public by any person on behalf
of any other person, such other person shall be the first owner of
copyright.
(v) a Government work, the Government and a work made or first
published under the direction and control of any Public Undertaking or
International Organization, that Public Undertaking or International
Organization shall be the first owner of copyright.

The author of the worker is the first owner of copyright except in

case of works created during employment, commissioned work and
government works. In these cases the employer will become the first
owner. But the authorship remains with the creator only. In V.T.
Thomas v. Malayala Manorama6 confirmed that the author remains
an author even after the economic rights were transferred. As per the
law ownership is vested in the author automatically as soon as the
work is created without following any formality, according to Section
48.

Copyright in Books
E.M. Forster vs. A.N. Parasuram, AIR 1964 Mad 331: The
University of Madras prescribed Forster's novel 'A passage to India' as
a text book for B.A. Degree Students. Parasuram published
"Everyman's Guide' for this book. The guide contained an introduction
to the author's life, works, analysis of theme, character sketches and
social issues discussed in the story. Author E.M. Forster and his
publisher Edward Arnold initiated action against Parasuram. The single
judge found no violation of copy right as there was no substantial
copying of original book, and found the guide as his independent
literary effort. The Division Bench confirmed the single judge's ruling
and held that textual essay was skillfully arranged. The court
concluded that, the respondent's work was neither an abridgment nor
a piece of literary criticism in itself. It was functional in character. The
court clarified that verbatim quotation from an original work was
permitted as essential for fair criticism. Reasonable reproduction of
passages for critical review is 'fair dealing' and substantial
reproduction would invite the penal provisions.

6
AIR 1989 Ker. 49
 Secondary Board of Education v. The Standard Book
Company7: In this case West Bengal Board of School Education
published an English text book for VI Class entitled "Parijat Readers
Book One". The Standard Book Company came out with Notes on
Parijat Readers Book One. Court agreed with the contention of the
petitioners that the Standard Book Company with substantial
reproduction of text book along with the notes was competing in sales
with the original book, which was unfair.

Rupendra Kashyap v. Jiwan Publishing House8: In this case

the Delhi High Court held that the Examination paper was a literary
work, which could be a subject matter of copyright. The court held that
CBSE had copyright over the examination papers it got set by the
experts of the subjects on consideration.

News Media & Copyright

In 9Indian Express Newspapers v. Dr Jagmohan Mundhara,
the Court held that there is no copyright in any event which actually
taken place. The Bombay High Court said that the ideas, information,
natural phenomena; and events on which an author expends his skill,
labour, capital, judgment and literary talents are common property and
are not the subject of copyright. Hence there is no copyright in news or
information itself. However, copyright may be obtained for the form in
which they are expressed, because of the skill and labour which goes
into the writing of stories or features and in the selection and
arrangement of the material.

A free-lance journalist, who is not employed by any newspaper or

magazine, retains all forms of copyright in articles sent to different
papers. He has right for all forms of reproduction, unless there is a
special arrangement to the contrary. A publisher cannot reproduce the
article of a writer in another of his publications, without the prior
permission of the author.

A letter to the editor is intended to be published only once. The

author of the letter retains copyright in the contents of his letter. The
newspaper cannot reproduce the letter on a second occasion.
However, it can quote from parts of his letter in follow up story.
Because that reproduction could be a fair dealing for the purpose of
criticism, review, reporting current events etc10.

7
Calcutta Weekly Notes, CWN (1966) 1130
8
1996 PTC 16
9
AIR 1985 Bom 229
10
Bakshi, P.M., Press Law, An Introduction, 1986, p 171
 Whether an editor can alter or delete or add to the letter written
by a reader? In a case in Britain, it was held that in the absence of
express or implied prohibition, the editor has the right to make
reasonable alterations. If some material is sent to the Newspaper, free
of cost, the newspaper cannot become the owner of copyright. For
example, if an association sends its annual report, the newspaper
cannot acquire copyright over it. There is no copyright for works which
are not original, and which are libelous, immoral, obscene, or positively
of an irreligious bearing.

There can be no copyright in works, even though they are

original, if they are against morality or public policy. Works, which are
of grossly immoral tendency, works that are calculated to deceive the
public, works that are contrary to public policy, or works which are
seditious. The Copyright is a statutory right. Hence, a writing or work
banned by another law cannot secure a protected copyright under
1957 Copyright Act.

Doctrine of Fair Use:

Another area where the conflict between the right of society to
know and the copyright of author or the transferee from him is the
doctrine of fair use and varieties of exemptions made available for the
use of copyrighted knowledge though it amounts to infringement
otherwise. In the absence of fair use doctrine, the copyright law would
be harsh, unreasonable and against public policy favouring
dissemination of information and knowledge and plainly would have
been unenforceable. The old 1909 Copyright statute of USA was
stringent as it gave each copyright holder an exclusive right to ‘print,
reprint, publish, copy and vend the copyrighted. As stated in that Act it
was an absolute right: the wording was put in terms so absolute that
even pencil-and-paper copying was a violation of the US Copyright Act.
Because the 1909 statute’s terms were so stringent, if enforced to the
letter, it could have prevented anyone except the copyright holder
from making any copy of any copyrighted work. American courts
assumed – in creating a judge-made exception to the absolute
language of the 1909 copyright statute- that “the law implies the
consent of the copyright owner to a fair use of his publication for the
advancement of science or art11. The fair use doctrine, although a
rather elastic yardstick, was a needed improvement.

If the violation is for fair purposes and non-commercial, non-

exploitative purposes, it cannot be penalized. The author can copyright
the work only when it is original. To prove or establish originality is the
11
This is the statement of Wittenberg who offered a good non-technical description of fair use before it was
expanded in 1967 as quoted by Dwight L. Teeter and Bill Loving in Law of Mass Communications,
Freedom and Control of Print and Broadcast Media, NewYork Foundation Press, 2001, p 854
pre-requisite for the action for violation and secondly the defence
available to the defendant is 'fair dealing'.

Section 52 gave a detailed explanation as to what is not an

infringement, and explained the doctrine of fair dealing or fair use.
These provisions balance the interests of community with those of
individual authors, and permits spread and dissemination of
knowledge.
1. A fair dealing with a literary, dramatic, musical or artistic work for
private use, including research, criticism or review, whether of that
work of any other work
2. the making of copies or adaptation of computer programme to use,
for back up copies, for using it for interoperability, to observe, study
or test of the computer programme, or making copies for non-
commercial personal use.
3. A fair dealing for reporting current events in a newspaper, magazine
or similar periodical, or by broadcast or in a cinematograph film or
by means of photograph.
4. reproduction for purpose of judicial proceedings or for report of a
judicial proceedings
5. reproduction of work prepared by Secretariat for the use of
members of that legislature
6. recitation of reasonable extract from a published literary or
dramatic work in public
7. the publication in collection for the use of educational institutions.
8. reproduction by teacher in course of institutions or in question
papers;
9. performance in the course of educational activities in institutions;
10. playing in public in an enclosed room or in clubs in certain
circumstances.
11. performance in an amateur club given a non-paying audience or
for religious institutions including a marriage procession
12. reproduction in newspaper and magazine of an article on current
economic, political, social or religious topics in certain
circumstances;
13. publication of report in newspaper, of a lecture delivered in
public
14. making a maximum of 3 copies for the use of a public library;
15. reproduction of unpublished work kept in a museum or library for
the purpose. where the author is known and publication is made 60
years after his death, it is not infringement.
16. reproduction of any matter published in Official Gazette or
reports of Government Commission or other bodies and any
judgement or order of court, tribunal or judicial authority not
prohibited from publication.
17. production or publication of a translation of Acts of Legislature or
rules:
18. publishing a painting or photograph of a work of architecture
19. publishing of a painting, drawing, photographs or engraving of
sculpture which is permanently situate in public place;
20. including such things in the films.
21. the use by the author of an artistic work, where the author is not
the owner of the copyright therein, provided he does not thereby
repeat or imitate the main design of the work;
22. reconstruction of a building referring to original architecture,
drawing or plans
23. exhibition of film after the expiration of the term of Copyright
therein, etc

Exemptions:
However, in order to protect the interests of users, some
exemptions have been prescribed in respect of specific uses of works
enjoying copyright. Some of the exemptions are the uses of the work:
1. for the purpose of research or private study;
2. for critcism or review;
3. for reporting current events;
4. in connection with judicial proceeding; and
5. performance by an amateur club or society if the performance is
given to a non-paying audience.

The Karnataka High Court justified the provisions of balance

between the rights of authors and interests of society12. The provisions
under Section 52 are intended to ensure that the monopoly rights
should not be detrimental to the larger interests of general public. It is
a perfect balance of the statute till the technological advances broke
down this balance. The multimedia improved the quality of
reproduction and speed of transmission besides converging the entire
existing media into one. The Internet and digital media made the
rights of individual author very vulnerable.

Changes in Doctrine of Fair Use

The doctrine of fair use has undergone several changes in India.
Importing copyrighted work into India is an infringement according to
Section 51 (b) (iv). Earlier importing for the private and domestic use
of the importer was not an infringement. The words "(except for the
private and domestic use of the importer)" omitted by Act 65 of 1984,
sec 3 with effect from 8-10-1984. It was in fact originally a fair use and
from 1984 onwards it became unfair. But another provision is added to

Gramaphone Co. of India v. Mars Recording Pvt Ltd 2000 PTC 117
12

(Kar)
this section saying that the import of one copy of any work, for the
private or domestic use of the importer is not an infringement.

1995 amendment substituted clause (ii) of Sec 51 (a), with

regard to communication of the work to the public, which can include
even Internet, the copyrighted work. Copyright is deemed to be
infringed if any person 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. However an
exception is also provided in the same clause, "unless he was not
aware and had no reasonable ground for believing that such
communication to the public would be an infringement of copyright;".
Thus lack of knowledge about existence of copyright in the place,
which he is communicating to public for profit will absolve from liability
for infringement.

Section 52 deals with exceptions and fair use doctrine. Section

52 (1) (aa) specifically refers to exceptions to computer programmes'
copyright infringement. The making of copies or adaptation of a
computer programme by the lawful possessor of a copy of such
computer programme from such copy in order to utilize for the purpose
for which it was supplied, or to make back up copies for temporary
protection is permitted. This is an obvious thing, which was restated.
But here there is no element of exception which doctrine of fair use
accorded to other kinds of infringements of other types of copyrights.
In Hyde Park Residence Ltd, v Yelland13, a newspaper
published still photographs taken on a security camera when Princes of
Wales Diana, and her friend Dodi Fayed visited Villa Windsor in Paris,
on the day prior to their deaths in a car accident. The photographs
were stolen by a security guard and sold to the newspaper, which
published them more than a year later. Hyde Park had sought
summary judgment at the first instance relying on breach of copyright.
The defendant relied on the defence of fair dealing for the purpose of
reporting current events. The judge upheld it as fair use. However, it
was reversed on appeal. Motives of alleged infringer, the extent and
purpose of the use, whether that extent was necessary for the purpose
the purpose of current events in question will decide the fairness or
otherwise of the usage. In Diana case the work (photographs by
security camera) had not been published or circulated to the general
public. This was considered to be one of the important indicators that
the use was not fair and not for the purpose of reporting current
events. The Court examined the doctrine of fair use on the touchstone
of a reasonable man and said: ‘A fair minded and honest person would
not pay for the dishonestly taken driveway stills and publish them in a
newspaper knowing that they had not been published or circulated’.
13
[2001] Ch. 143
Another factor was that the extent of the use was also held to be
excessive.

Here is an incident, which instead of operating as an incentive to

original author generating an idea and expressing in a tangible
manner, helped those who copied it to make huge profits ignoring the
author. In Indian Express Newspaper (Bombay) Pvt Ltd.,
Jagmohan,14 the reporter of Indian Express, Mr. Ashwini Sarin
investigated into the flesh trade in Madhya Pradesh and purchased in
Shivpuri village, a woman "Kamala" for Rs 2,300 to establish the
trafficking in women. He then wrote series of articles exposing the
prostitution trade and involvement of bigwigs from politics and police
department on 27th, 29th, and 30th April 1981 and 2nd May 1981.

Then Mr. Vijay Tendulkar scripted a play by name 'Kamla' totally

based on the Indian Express exposure, and staged the play for 150
times in 32 cities and in seven languages. Jagmohan Mundhara, a film
producer planned to produce a film on the same theme from the same
writer Vijay Tendulkar. Journalist Ashwini Sarin and the Indian Express
newspaper complained that Jagmohan and Vijay infringed their
copyright. The Indian Express contended that, when serious of
sensational reports resulted from sweat of brow of the journalists, and
forms an effective expression of what was happening around, why not
it be protected? How is that others could make capital out of it leaving
the original authors of the ‘exposure’ without any protection to their
writing?

The Bombay High Court held that there could not be any
copyright in an event which actually taken place. The Court observed:
"There is distinction between the materials upon which one claiming
copyright has worked and the product of the application of his skill,
judgment, labour and literary talent to these materials. The ideas,
information, national phenomena and events on which an author
expends his skill labour, capital, judgment and literary talent are
common property and are not the subject of the copyright".

This judgment ignored the skill, capital, talent and labour

invested by the journalist besides his skilful expression in the form of
investigative story and simply termed the incident as national
phenomena and finally refused the copyright to journalists. The Court
should have recognized the way the national phenomena or tragic
happening in society was creatively reported by the journalist alerting
the authorities.

14
AIR 1985 Bom 229
 The justice could be ordering Vijay Tendulkar and Jagmohan to
acknowledge the efforts and risk of Journalist and secure his
permission on reasonable payment of a share in their proceeds. If not
it would amount to permitting a theatre and cinema person to
commercially exploit an expression of idea which is not their own,
which is against the spirit of copyright regulation.

John F. Kennedy case

The assassination of President John F. Kennedy gave rise to a
copyright case which added luster to the defense of fair use in
infringement actions. On November 22, 1963, dress manufacturer
Abraham Zapruder of Dallas stationed himself along the route of the
President’s motorcade, planning to take home movie pictures with his
8 millimeter camera. As the procession came into sight, Zapruder
started his camera. Seconds later, the assassin’s shots fatally wounded
the President and Zapruder’s color film caught the reactions of those in
the President’s car. On the same day, Zapruder had his film developed
and three color copies were made from the original film. He turned
over two copies to the Secret Service, stipulating that these were
strictly governmental use and not to be shown to newspapers or
magazines because Zapruder expected to sell the film. He negotiated
with Life magazine, which purchased all the rights for $150,000. Life, in
its November 29, 1963 issue featured thirty of Zapruder’s frames.
Subsequently, the Life ran some more pictures from Zapruders’s film.
Life also permitted the investigating team to use the photographs in
investigation and print them in their report. In 1967, Life registered the
entire Zapruder film in the Copyright office as an unpublished motion
picture other than a photo play’. Bernard Geis Associates sought
permission from Life magazine to publish the pictures in Josiah
Thompson’s book, “Six Seconds in Dallas”, a serious, thoughtful study
of the assassination. It offered to pay Life a royalty equal to the profits
from publication of the book in return for permission to use specified
Zapruder frames in the book. Life refused the offer. Thompson
engaged an artiste for $1,550 to make charcoal sketch copies of 22
copyrighted frames and reproduced them in the book. Court ruled that
Life had a valid copyright in the Zapruder film, and added that ‘the so-
called sketches in the book are in fact copies of the copyrighted film.
The Court quoted copyright expert Melville B. Nimmer15:
It is of course, fundamental, that copyright in a work protects
against unauthorized copying not only in the original medium in
which the work was produced, but also in any other medium as
well. Thus copyright in a photograph will preclude unauthorized
copying by drawing or in any other form, as well as by
photographic reproduction.
15
Nimmer on Copyright, p 98 quoted in judgement in Time Inc v Bernard Geis Associates, 293 F. Supp.
130, 131-134 (S.D.N.Y. 1968)
 Ruling that it was infringement the court held that it was ‘fair
use’ by the publisher, which is ‘the most troublesome in the whole law
of copyright” The court found in favor of Bernard Geis Assopciates and
author Thompson, holding that utilization of the Zapruder pictures was
a fair use.
Public purpose, investigative needs, and academic exercise offer
as the best grounds for fair use of the copyrighted works.

Enforcement mechanism
In India, one of the most important factors that hinder the spread
of copyright awareness is the lack of enforcement mechanism. In US
Copyright Clearance Center (CCC) is created to secure the rights of the
copyright holder. It is a not-for-profit licenser of photocopy and
electronic reproduction rights. The CCC and Publications receive
complaints of unlawful photocopying and other infringements. The CCC
and publications encourage the whistleblower and offer cash payments
for reporting illegal activity. Even for photocopying the intending
person has to obtain permission from licensing representative such as
Copyright Clearance Center. If the photocopy activity exceeds the
limitations of fair use, one is required a photocopy license. In most
instances copyright infringement by photocopying are settled before a
lawsuit is filed or the case goes to court. In these cases, undisclosed
amounts (often quite substantial) are paid to the plaintiffs.

In American Geophysical Union et al. vs. Texaco Inc., a class

action suit filed against Texaco on behalf of all publishers registered
with CCC both the trial court and the appeals court rejected Texaco’s
argument that its photocopying activity was fair use. As a result,
instead of proceeding to trial, Texaco paid a seven-figure settlement
and agreed to take retroactive CCC licenses. The law does not
recognize ‘best efforts’ exception. The copyright owner may file a
federal lawsuit against anyone who reproduces his or her works
without permission, even in cases where the user claimed it was
difficult, time consuming or expensive to locate the owner. The
copyright owners and users of copyrighted materials developed an
efficient mechanism in US for the exchange of permissions and
royalties. Acting as an agent for over 9600 registered publishers and
hundreds of thousands of authors and creators worldwide, CCC can
authorize any company to photocopy from over 1.75 million titles
included in its repertory. The International Federation of Reproduction
Rights Organization IFRRO recognizes CCC as the principal photocopy
permissions agency in United States.

The Association for Copyright Enforcement ACE and Association

of American Publishers AAP, support the CCC program and have
agreed that they well not pursue nor support copyright infringement
litigation by their members against CCC licensees.

In India, the authors are not organized; their writings are not
properly valued. The publishers continue to exploit the economic
benefits from the writings of the author. The royalties and copyright
prices are very minimal compared to profits made by the publisher.
The accounts are also not sought from publishers. Writer’s society has
to be formed and with the state support these societies should enforce
the copyrights and regulate the licensing process.

The law of copyright in the name of intellectual property right

renders strong protection for the benefit of content owning industries
such as the publishing industry, the music and motion picture
industries and the computer software industry which include the
corporate publishers, multinational broadcasters and media giants, and
work out against the individual violators. The misunderstanding that
the primary purpose of copyright law is to protect authors against
those who would pilfer the author’s work threatens to upset the
delicate equilibrium in copyright law.

Though the doctrine of fair use offers a wide range of facility to

disseminate information, there are certain strong areas, which impose
harsh consequences on individual and academic users of information
disseminated over the media, either electronic or print. To serve the
purposes and objectives of the of the law as indicated by it’s title, the
individual intellect has to be given priority and preference to the
interests of multi-billion dollar entertainment industry or information
industry. The writers and performing artistes should form associations
and fight for securing their rights and interests as available under the
present copyright regulatory regime and plead for more and more
protections.

In almost all developing countries including India and more so in

the States, the writers do not command publishing market, they are
totally dominated by the unscrupulous publishers exploiting individual
authors. Even the prominence or eminence of the writer does not yield
him economic returns commensurate to his effort and popularity. While
beginners or up-coming authors are totally at the mercy of the
publishers, who prefer outright purchase of entire bundle of rights for a
pittance, which do not equal half of 10 percent of proceeds from first
print. Generally no published will honestly give the accounts and
calculate royalty for the writers. Reprints and revision editions also
may not yield enough gains for the author. Once the author parts with
copyright, it is no more an intellectual property. Author’s intellectual
produce becomes the property of unscrupulous publishers and whole
gamut of law with all its rigour goes to help such a publisher gain profit
without caring for original author. It is ridiculous that a book, which
yields Rs 5 or 6 lakh to publisher, leaves just Rs. 15000 or so for the
author, even as the publisher’s gains continue for a long duration. The
experience of authors of literary works is much worse. Even popular
story or novel writers have to satisfy with initial amounts only, as the
publisher is generally not inclined to offer royalty on their own with
honest disclosure of proceeds from that book. For poets, their intellect
is not property at all. It could be even stated as liability. As none would
publish them, the authors turn small publishers, invest their life time
savings on publication, fail in marketing the produce and then go on
distributing the copies or use their livable space for storing hundreds of
copies. Their intellectual appetite has to be felt consummated with just
script getting converted into a print version.

Even where the books really sell in the market, the publisher
gains and the author does not know at least that his book is selling.
Most of the copyright assignments in the market today is outright sale
of bundle of rights to publisher for a lump sum. Law does not insist that
royalty for the original author must be provided to the author. Both,
the practice of outright assignment and absence of provision for
royalty is unreasonable and indicates that law has ignored the real
intellectual’s property rights. The lofty ideals, objectives and spirit of
IPR do not come to the rescue of the deprived author. The investigative
reporters, analytical writers, opinion makers in newspapers are denied
the copyright en bloc as their writings are rated ‘historical or
contemporary facts, events, news or mere ideas’ etc., though they are
specifically expressed and such expression requires great hard work
and creative analytical effort. The case of ‘Kamala’ discussed above is
the apt example. Some times some well-written news stories attract
the judicial attention and become writ petitions yielding positive
directions and actions and also become thrilling subjects of feature
films, but does not give any financial benefit to the author or even his
employer.

Writers contributing to newspapers are the worst class of

exploited. The employed writers lose the copy right by virtue of
contract of employment as per copyright law. Their salary is their
intellectual property. The employer’s permission is essential for even
compiling into a book certain good pieces of writing published during
the course of their employment, as the employer is the first owner of
copyright. Coming to columnists, except a few top newspaper
organizations, they are not even regularly paid that lowest amount of
remuneration. However, the columnist holds copyright in their writing
contributions, but gradually decreasing reading habit do not provide
conducive atmosphere for publication.
 Thus the IPR to print media, especially in domestic publication
market and in regional language is not a harbinger of intellectual gains
and do not help relieving them from publisher’s exploitation. If writing
does not click, he ends up as an author, if it clicks, the author survives
as an author but economic benefits are totally appropriated by the
publisher. To make the regulation a real intellectual property regime,
there must be judicious approach and fair consideration of interests of
the first owner of the copyright. It is ‘intellectual property’ only when it
resides in author and it ceases to be so in the hands of outright
purchaser. It is just a property for publisher. The law must specifically
provide for protecting the financial interest of first owner or the author,
especially from the publisher. There should be a mandatory
consideration of royalty of 10 per cent from the proceeds of the book
with a voluntary disclosure of true accounts every year, absence of
which should have penal consequences. The judiciary while dealing the
cases of conflicting interests between the author and publisher, this
background should be given a fair consideration. If not the IPR for
author means ‘I’ for intellectual transferred, ‘P’ for poverty that
remained, and ‘R’ for responsibility that prevails.

Thus IPR has to be understood in a different perspective in the

backdrop of ground realities prevalent in third world countries and
regional language print media (books and newspapers). The factor that
print-media is under a virulent attack from electronic media as the
latter is reducing the books market by killing the reading habits needs
to be considered.

The purpose of copyright is understandable when it comes down

heavily on mechanical copying and satellite level infringements
affecting the business. But the law must be liberal when it comes to
the use of the information for individual or academic purposes; the
scope of doctrine of fair use as an exemption from copyright liability
must be as enhanced as possible. The individual authors must be
protected from exploiting publishers.

The courts and the law should allow the expansion of the scope
of fair use and thus enlarge the need for dissemination of information
freely through out the world without any barriers at any stage. It is the
duty of the state and society to see that the dissemination is permitted
by the wider practice of doctrine of fair use. The fine balance between
the rigour of copyright and flexibility of fair use has to be maintained.
The great advantages must be in tune with avoiding the great
disadvantages of this global regulation.
 The strict enforcement of stricter law of copyright should not
result in loss of general storehouse of knowledge, because copyright
seeks to stock the knowledge and not to lock it. Too long and broad
monopoly for copyright will not help promotion of knowledge and
learning, which is the real purpose of copyright regulation. The
copyright law should not be viewed solely as an economic regulation,
and its priority should not be the protection of economic rights alone.
The public interest in public dissemination as the basic purpose of law
must always be kept in mind while dealing with questions and disputes
over this regulation, whether global or local.