THE RIGHTS OF THE AUTHORS IN THE COPYRIGHTS

ACT,1957
THE RIGHTS OF THE AUTHORS IN THE
COPYRIGHTS ACT,1957

Table of Contents
TABLE OF
CASES................................................................................................................................................... 7
CHAPTER
1............................................................................................................................................................ 8
INTRODUCTION.............................................................................................................................................
...... 8
1.1 Introduction to
IPR.................................................................................................................................. 8
1.2
Copyright......................................................................................................................................
.............. 9
1.3 Who can claim
ownership?................................................................................................................. 10
1.4 Author under US Copyright
Law........................................................................................................ 13
CHAPTER
2......................................................................................................................................................... 15
ECONOMIC RIGHTS: COMPARATIVE STUDY OF UK,USA &
INDIA........................................................... 15
2.1 Economic Right In
India....................................................................................................................... 15
2.1.1 Economic
Rights............................................................................................................................................
...................................16
2.1.2 Right Of
Reproduction................................................................................................................................
..................................16
2.1.3 Right Of
Distribution..................................................................................................................................
...................................18
2.2 Economic Right In
U.K.......................................................................................................................... 18
2.3 Economic Rights In
U.S.A...................................................................................................................... 20
CHAPTER
3......................................................................................................................................................... 21
MORAL RIGHTS WITH RESPECT TO UK, USA AND
INDIA......................................................................... 21
CHAPTER
4......................................................................................................................................................... 27
RELATED RIGHTS WITH RESPECT TO INTERNATIONAL
LAW................................................................. 27
4.1 Performers
Right:................................................................................................................................. 27
4.1.1
Rights............................................................................................................................................
.......................................................... 28
4.1.2 Non-Property
Rights............................................................................................................................................
.......................... 28
4.1.3 Property
Rights............................................................................................................................................
.....................................29
4.1.4 Right Of
Remuneration...............................................................................................................................
.................................29
4.1.5 Exclusive Recording
Contracts......................................................................................................................................
........... 30
4.1.6 Duration, Defences, And
Remedies.......................................................................................................................................
.. 30
4.1.7 Foreign
Performances................................................................................................................................
...................................31
4.2 Database
Right....................................................................................................................................... 31
4.2.1
Subsistence...................................................................................................................................
....................................................... 32
4.2.2 Makers And
Owners.........................................................................................................................................
.............................. 33
4.2.3 Infringement, Rights, And
Remedies.....................................................................................................................................
33
4.2.4 Exceptions And
Defences.......................................................................................................................................
....................... 34
4.2.5 Foreign
Databases...................................................................................................................................
.................................35
4.3 Public Lending
Right............................................................................................................................ 35
CHAPTER
5......................................................................................................................................................... 37
LIMITATIONS TO THE RIGHT AND
CONCLUSION....................................................................................... 37
5.1 Limitations To The
Right..................................................................................................................... 37
5.2 Free Use For
Reproduction................................................................................................................. 38
 5.3 Non-Voluntary
Licenses....................................................................................................................... 38
5.4 Enforcement Through The Lens Of
Remedy................................................................................... 39
5.5 Conservatory Or Provisional
Measures............................................................................................ 39
5.6 Civil
Remedies......................................................................................................................................
.. 40
5.7 Criminal
Sanctions................................................................................................................................. 40
5.8 Measures To Be Taken At The
Border.............................................................................................. 40
5.9
Sanctions......................................................................................................................................
............ 40
CHAPTER
6......................................................................................................................................................... 42
BIBLIOGRAPHY..............................................................................................................................................
.... 42
6.1
Books............................................................................................................................................
............ 42

TABLE OF CASES

1. Amar NathSehgal v. Union of India 2005(30) PTC 253 at p.268 (Delhi).

2. Communityfor Creative Non-Violence v. Reid, 490 U.S. 730, 737 (1989)
3. Eastern Motion Pictures v. Performing Rights Society, AIR 1978 Cal 477.
4. Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1071.
5. Frisby v. BBC [1967] Ch. 932
6. Indian Performing Rights Society v. Eastern India Motion Pictures, AIR 1977 SC 1443.
7. MannuBhandariv.Kala Vikas Pictures AIR 1987Del 13.
8. NehaBhasin v. Anand Raj Anand2006 (32) PTC 779.
9. Ricklessv. United Artists [1987] FSR 362.
10. Suresh Jindal v. RizsoliCorriere Della Sera Prodzioni T.V. S.P.A AIR 1991 SC 2092.
11. Vicco Laboratories v. Art Commercial Advertising Pvt. Ltd., AIR 2001 SC 2753
CHAPTER 1

INTRODUCTION

1.1 Introduction to IPR

Intellectual Property has attained central importance throughout the world in the recent past.
Intellectual property, which was mainly the subject matter of the World Intellectual Property
Organisation (WIPO) has also become a part of the World Trade Organisation (WTO) regime
in 1995. The TRIPs agreement of the WTO Treaty evolved minimum standards for the
protection of intellectual property for member states to incorporate in their municipal laws.[1]
Intellectual Propert is the creative work of the human intellect. The main motivation of its
protection is to encourage and reward creativity. Nations give statutory expression to the
economic rights of creators in their creations, and to rights of the public in accessing those
creations.
Intellectual property relates to pieces of information which can be incorporates at the same
time in an unlimited number of copies at different locations anywhere in the world. The
property is not in these copies but the information reflected in these copies. Intellectual
property is usually divided into two branches- (i) copyright and (ii) industrial property.[2]
The perception that an author of the work should have an exclusive copyright in his work of
intellectual creativity, took a solid shape in the eighteenth century. As before it, the publishers
or the entrepreneurs exploiting the work considered them as the major risk-takers; they, thus,
acquired the work from the author and organized its printing and sale. This resulted into the
evolutionary conflicts of interests on the question of the ownership and authorship of the
work. The conflicts, however, were later resolved by conferring statutory rights to the creator
of the works.[3] In India, the copyright in different works has been given to its creators by law
governing the copyright, which has been passed and amended from time to time.

1.2 Copyright
After independence of India, the Copyright Act of 1957 (hereinafter, Copyright Act or the
principal Act) confers copyright or an 'exclusive right' to the author of the work. The Act
contemplates that no copyright exists in any work, other than provided in the Copyright Act
(Section 16 of the Copyright Act, 1957). Copyright is a unique kind of intellectual property,
[4]
which is the outcome of human intellect and comes into existence as soon as it is created.
There is a need to protect this work of the human genius so as to encourage the authors of the
work to contribute more to the field, which in turn would promote the intellects to produce
more new woks in the field and also which is necessary to continue the inflow of new
technological thoughts. Economy of the nation depends to some extent upon the import and
export of such material, thus there is a great need to protect such works. In order to grow in
the state of interdependence, it is necessary that the originators of the work must be rewarded
with some monopoly rights and at the same time, it is also important to maintain a balance
between the authors rights and the public interest. For that purpose, the works, whether
published or unpublished, but falling within the gamut of the copyright laws, must be
protected against infringement. The copyright can be granted for the new and original works
and for those which are not just an imitation of protected works. However, the novelty and
originality of thought for granting protection under the copyright laws, necessarily is not to
be weighed on the same footing as that of the patents. [5] The copyright law, however, does not
require that the intellectual investment in a work must necessarily be original or new, rather,
the standard of originality required for copyright is low.[6] What is required under copyright
law is that the manner of expression of the thought must be original.
The degree of originality in case of works forming subject matter of copyright is not similar
as required in case of a patent, which demands non- obviousness, besides novelty and
usefulness of the invention for claiming protection and no anticipation of the work should be
there by those possessing skill in that pertinent art. Besides, the copyright protection to the
author of the work finds its justification in the fact that he who produces something with his
skill and labour, normally would be allowed to enjoy the fruits of his labour. The Madras
High Court, while explaining the basis of protection to the work of intellectual creation, in
the case of Sulamanglam R. Jayalakshmi v. Meta Musical (AIR 2000 Mad. 454) said:
"The primary function of copyright law is to protect the fruits of man's work, labour, skill or
test from annexation by the other people.[7]
The copyright exists in the expression and not mere idea. The manifestation of the idea in
some substantial form, i.e. book, work of art, music, drama, film, sound recording, etc.,
would qualify that work for protection as a copyright work'. The Supreme Court of India in a
leading case of R. G. Anand v. Delux Films, [8] very lucidly declared that there can be no
copyright in an idea, subject matter, themes, plot or historical facts. It appears from the term
copyright that it is a
single right enjoyed by the owner of the work, but in fact the copyright consists of a bundle
of legal rights in the same work. The owner of the work not only possess the right as such; for
certain limited period; to prevent others from copying his work, or doing any other act which
according to the copyright law can only be done by the author of the work, nevertheless, the
law also grants him some economic as well as moral rights. The conferment of these rights,
however, is not unlimited so as to give absolute monopoly to the owner of the work where he
gets absolute freedom to determine as to who can access his ideas or information, but, on the
contrary, the law seeks to establish an equilibrium between the rights of the owner and the
public interest in having access to ideas and information with equally important public
interest in encouraging and rewarding the formulation and publication of such ideas and
information.[9]

1.3 Who can claim ownership?

 In general, the author' of the work is the first owner' of the copyright with respect to his
work (Section 17 of Copyright Act, 1957). However, this impression is subject to other
provisions of the Copyright Act, which provide for such instances where the author of the
work may not be the owner of the work. Prior to dealing with these circumstances, it becomes
indispensable to determine as to who can be the author of the work? Author means (Section
2(d) of the Copyright Act, 1957):
the author of the work in relation to a literary or dramatic work;
the composer in relation to a musical work;
the artist in relation to an artistic work other than a photograph;
the person taking the photograph, in relation to a photograph;
the producer in relation to a cinematograph film or sound recording; and
the person who causes the work to be created in relation to any literary, dramatic,
musical and artistic work which is computer generated.
The composer' and the producer,' as the authors of the musical works and the
cinematograph films respectively, have been further defined in the Copyright law. The
composer' in relation to a musical work means the person who composes the music
regardless of whether he records it in any form of graphical notation (Section 2 (ffa) of the
Copyright Act, 1957). The producer' in relation to a cinematograph film means a person who
takes the initiative and responsibility for making the work (Section 2 (uu) of the Copyright
Act, 1957). With the objective to recognize the intellectual contributions of the principal
director in the cinematograph films, concept of joint authorship of producer and the principal
director was proposed in the Copyright (Amendment) Bill, 2010 [5]. Accordingly, it was
proposed that as per clause 2(d) (vi) both producer and the principal director would be the
authors of the cinematograph film. Also sub clause (vi) in relation to the sound recording, the
producer was proposed to be the author.
Further, clause 2 (z) defining the term work of joint authorship' was proposed to be
modified by insertion of an Explanation clarifying that the cinematograph film would be
treated as a work of joint authorship except in cases where the producer and principal
directors are same persons. However, these proposed provisions in the 2010 Amendment Bill
did not find any mention in the 2012 Amendment Act where the definition of the author,
especially, the producer of the cinematograph film, has been kept unchanged. [10] This might
possibly be due to the opposition by the representatives of Film and Television Producers
Guild of India made during the consultation process held with regards to the Copyright
(Amendment) Bill, 2010, where the proposed co-ownership to the principal director was
considered by them as unfair and unjustified on the fact that it would be the producer who
was to face the potential risk of loss as compared to the principal director who charges
upfront fee for his services, irrespective of any profit or loss. It was also emphasized that the
contract negotiated freely between the producer and the director could be made in a way so as
to incorporate the percentage of profit to be shared by them.[11]
The Copyright Act provides for such classes of persons, who though not the authors of the
work, yet become the first owners of the copyright of a work under certain circumstances.
Clauses (a) to (e) of Section 17 (1) of the Copyright Act enumerate such instances where not
the author but someone else for whom work is done in course of employment and to certain
 extent and for certain purposes can have the ownership. The provisions conferring ownership
to others, those who may be:
The proprietor of the newspaper, magazine or similar periodical [s.17 (a)];
The person who has paid value consideration for the work [ s.17 (b)];
The employer under a contract of service or apprenticeship [s. 17 (c)];
The person who delivers or on whose behalf the speech is delivered or an address is
made [s. 17 (cc)] (Inserted by the Copyright (Amendment) Act, 1983) ;
Government in case of Government work [s. 17 (d)];
Public undertakings [s. 17 (dd)] (Inserted by the Copyright (Amendment) Act, 1983 );
and
International Organizations [s. 17 (e)].
Clause 2(v) under the 2010 Amendment Bill sought to amend Section 17 of the principal Act
of 1957, where under producer and principal director were to be treated jointly as the first
owner of the copyright after the bill was to be passed as 2010 Amendment Act, however, the
same could not be passed. Later, the Copyright (Amendment) Act, 2012, added that in section
17 of the principal Act, in clause (e) the following proviso shall be inserted at the end,
namely:
"Provided that in case of any work incorporated in a cinematograph work, nothing contained
in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of
sub-section (1) of section 13."[12]
The Supreme Court, in the case of Vicco Laboratories v. Art Commercial Advertising Pvt.
Ltd.,[13] rejected the claim of ownership made by the petitioner in the famous T.V. Serial "Yeh
Jo HaiZindagi", on the ground that the petitioner failed to establish that the respondent
produced the serial acting as his agent or produced it during the course of his employment or
for any valuable consideration paid by him to the respondent or at the instance of the
respondent.
As it is evident from the provisions contained in Section 17 that there are certain exceptions
to the rule that the author is the first owner of his work, it would also be not inappropriate if a
question arises in our minds as to what if the first owner who is not the author of the work
assigns the work to some third person? Does the right of the author of the work to claim
royalty comes to an end after he creates the work for valuable consideration? In Indian
Performing Rights Society v. Eastern India Motion Pictures,[14] the Supreme Court laid down
that when a cinematograph film producer commissions a composer of a music or lyricist for a
reward or valuable consideration for the purpose, the producer of a cinematograph film could
defeat the rights of a music composer or the lyricist in the manner stipulated in the provisions
(b) and (c) of Section 17 of the Copyright Act, 1957(See [3] at 53). Also in case of Eastern
Motion Pictures v. Performing Rights Society,[15] the Calcutta High Court held that when a
cinematograph film producer commissions a composer of music or a lyricist for reward or
valuable consideration for the purpose of making his cinematograph film, then the first owner
of such music or lyrics would be the producer of the film (See [3] at 53). Though, no
definitional changes were brought in clause (2) (d) by the 2012 amendment of the copyright
law, nonetheless, certain provisions protecting the economic interests of the authors of the
copyright work have been incorporated.
1.4 Author under US Copyright Law
Generally speaking, contemporary cases that have defined "author" for purposes of copyright
have focused their inquiry on one basic question: Has the putative author produced something
that is copyrightable?[16]
There are two versions of what is really the same "rule" of copyright law that have led courts
to ask this question. One version of the "rule" comes from Justice Thurgood Marshall's
statement in Communityfor Creative Non-Violence v. Reid:"[17]
"As a general rule, the author is the party who actually creates the work, that is, the person
who translates an idea into a fixed, tangible expression entitled to copyright protection."
The other version of the "rule" comes from the discussion of joint authorship in Professor
Goldstein's treatise on copyright law: "A collaborative contribution will not produce a joint
work, and a contributor will not obtain a co-ownership interest, unless the contribution
represents original expression that could stand on its own as the subject matter of
copyright."[18] Thus, according to Professor Goldstein, in order to be an "author," one must
contribute something that is independently copyrightable. Taken together, courts have used
these two versions to forge the rule that a person must fix his idea in a tangible medium of
expression in order to be considered an "author" under the 1976 Act.[19]
The Marshall-Goldstein approach has a certain logical appeal. The 1976 Act could not be
clearer: "Copyright protection subsists... in original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be perceived,
reproduced, or otherwise communicated, either directly or with the aid of a machine or
device."[20] In order to be copyrightable- that is, subject to copyright protection-a work must
be fixed in a tangible medium. Because a work cannot be copyrightable unless it is fixed, it
stands to reason that a person cannot be considered an author for purposes of copyright unless
he has fixed his work in a tangible medium. The cases so holding are legion. [21] Judge after
judge who has considered this issue has cited with approval Justice Marshall and/or Professor
Goldstein, and has held that being an author depends upon whether one has fixed something
in a tangible medium. Childress v. Taylor,[22] typical of these cases, may be the best known.
Thus, it serves as a valuable first illustration of the contemporary majority definition of
"author."

CHAPTER 2

ECONOMIC RIGHTS: COMPARATIVE STUDY OF UK,USA& INDIA

2.1 Economic Right In India

Countries usually have laws to guard property for two main reasons. One is to grant
statutory expression to the ethical and economic rights of creators in their creations and to the
rights of the general public in accessing those creations. The second is to market creative
thinking, and therefore the dissemination and application of its results, and to encourage
truthful trade, which might contribute to economic and social development.
There are two sorts of rights underneath copyright. Economic rights permit the rights
owner to derive monetary reward from the employment of his works by others. Ethical rights
permit the author to require sure actions to preserve the private link between him and
therefore the work.
Moral rights stem from the leading international copyright pact, the Berne
Convention.
Article 6bis of Berne states:
Independently of the author's economic rights, and even after the transfer of the said
rights, the author shall have the right to claim authorship of the work and to object to any
distortion, mutilation or other modification of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honor or reputation.[23]
Like all provisions in Berne, Berne member states, including the U.S., must meet the
minimum standards set out in Berne. Thus, each member state must provide for moral rights
of paternity and integrity. Countries are free to go beyond these minimums and provide
further rights such as the right of association or to withdraw permission to use a work.
Moral rights are separate from economic rights and even authors who have assigned
their economic rights may have moral rights. In some countries, moral rights may be waived
(Canada) whereas in other countries (France) authors may not waive their moral rights and
may always exercise them. Also, the duration of moral rights vary from country to country
expiring on the death of the author, to 50 years after his death (Canada) to perpetual existence
(France.)[24]

2.1.1 Economic Rights

Economic rights are those rights that facilitate the author reap economic advantages.
These rights are recognized in one kind or the opposite since fifteenth century. As per Section
fourteen of the Copyright Act, 1957, totally different rights square measure recognized for the
works considering its nature. The section provides that it's the privilege of the author to try to
to or authorize the doing of the acts provided there below. The necessary rights typically
recognized by all kinds of works below the Indian statute that attracted a lot of judicial
interpretation includes copy rights, right of distribution and right to speak work to the general
public economic right in India

2.1.2 Right Of Reproduction

In all kinds of work, i.e., literary, dramatic, musical, artistic, cinematograph film and
audio recording, the prerogative to breed the work is with the author. The prerogative to
forestall repetition and copy of the work is that the most basic, and traditionally the oldest,
right of a copyright owner. Although the Copyright Act has recognized this right all told kinds
of work, the word used is totally different then is that the reach of the correct. The Act has
neither outlined the term reproduction nor the term copying nor has it arranged down the
distinction between these two.
 The terms reproduction and copying are used at the same time although copy
encompasses a wider vary of acts. it had been control by the House of Lords in Ladbroke Ltd
v William Hill Ltd that copy means that repetition, Associate in Nursing doesn't embody
cases wherever an author or compiler produces a well similar result by freelance work while
not repetition. It should even be noted that to represent copy, repetition needn't be in Toto;
even substantial copy can amount to copy. Copy also means that creating a duplicate in an
exceedingly totally different type, notwithstanding such copy isn't simply perceptible.
Under the Act, the correct to replica of literary composition additionally includes
storing it in electronic type. This primarily implies that storing into a laptop or compact disk
can quantity to replica, even supposing the copy is in a very totally different type compared
with the first. it's vital to notice that the law is silent on the character and length of storage to
represent replica. In MAI Systems house v Peak Computers INC the question before the
United States of America Court of Appeals was whether or not repeating of a proprietary
laptop software package into the temporary memory of a laptop can quantity to copy
beneath the u. s. Copyright Act. It absolutely was control that the loading of proprietary
laptop software package from a storage medium into the memory of the central process unit
(CPU) causes a replica to be made. It absolutely was more control that repeating into RAM
is sufficiently permanent and stable to allow it to be perceived, reproduced or otherwise
communicated for a amount over a fugacious length. From this case it's clear that even
creating a short lived copy would be violation of the correct of the copyright owner as per the
United States of America law.
It is necessary to notice that the North American country statute defines copies as
material objects, apart from phonorecords, during which a piece is fastened by any
methodology currently familiar or later developed, and from that the work will be perceived,
reproduced or otherwise communicated, either directly or with the help of a machine or
device.[25] The reason more says that apiece is fixed in a very tangible medium of
expression once it's embodied in a very copy or phonorecords, by or beneath the authority of
the author, is sufficiently permanent or stable to allow it to be perceived, reproduced or
otherwise communicated for a amount over the temporary length. It seems that the terms
sufficiently permanent or stable utilized in the definition resulted within the judicial
interpretation to incorporate even temporary storing within the laptop at intervals the scope of
replica right. What amount of your time can represent temporary length is a motivating
question and can depend upon every jurisdiction.
The duration that a copy ought to be maintained so as to represent a violation of the
rights of the lawful owner has however not been determined at the international level. The
Liedes Draft for the WIPO Copyright accord in 1996 via draft Article 7(1) given that authors
of literary and creative work shall get pleasure from all rights bonded below Article9 (1) of
the Berne Convention, regardless of whether or not such work is temporary or permanent and
in any type or manner. Article 7(2) contained proposals allowing getting Parties to limit the
correct of copy in cases of bound temporary, transient or incidental copy, subject to bound
conditions. Later this text was fully born once the WCT was finalized and therefore the
reason for exploit this provision open looks to be the actual fact that no agreement was
reached among the parties on what amount ought to represent a temporary length. In short, it
merely means the States are liberated to decide the time length of holding of proprietary work
 that may qualify as copy thus on represent a violation. On the closing of the Conference,
U.S.A. planned inclusion of a press release that advised that the copyright bonded below
Article nine of the Berne Convention along side its exceptions shall apply within the digital
context too. The Statement simply says that the member parties have Associate in nursing
obligation to acknowledge copy within the electronic medium as coming back inside different
category of copy below the Berne Convention. It should be noted that India isn't a celebration
to WIPO Copyright accord. At a similar time, the Copyright Act, 1957 includes storing of any
info within the electronic medium while not shaping the term copy. In short, what length of
your time can represent copying below the Indian Act isn't clear from the statute. It's
expected that the judiciary can detain mind the professionals and cons of recognizing
repetition for a brief span of your time.[26]

2.1.3 Right Of Distribution

Apart from the proper to breed the work, the author is additionally unconditional with
the proper to distribute the work. it's the proper to place copies of the proprietary between the
in operation platform of the Copyright Act work into the industrial trade relates to the and
also the style Act as way as inventive work capable of commercial application worries.
Similar rights are bestowed with authors of cinematograph films. Theyre
unconditional with the perquisite to create copy of the film as per Section 14(d) (i) Copyright
Act, 1957. What all acts can quantity to creating a replica of the cinematograph film has been
dealt by the metropolis tribunal within the case Star Bharat non-public restricted v Leo writer
(India) non-public restricted. Here the litigator was the owner of the cinematograph film titled
Kyun Ki SaasBhiKabhiBahuThi. The defendants created an advertisement management
over dissemination of actual physical copies of the work. The scope and extend of this right
isn't uniform i.e. it differs with the work. Once copies ar in circulation the proper not exists
i.e. the proper get exhausted.

2.2 Economic Right In U.K.

Economic rights give the copyright owner the opportunity to make commercial gain from
the exploitation of his/her work. Copyright owners generally have the right to authorize or
prohibit any of the following things in relation to their works:
1. Copying the work in any way. For example, photocopying, reproducing a printed page by
handwriting, typing or scanning into a computer, and taping live or recorded music are all
forms of copying
2. Issuing copies of the work to the public
3. Renting or lending copies of the work to the public. However, some lending of copyright
works falls within the Public Lending Right Scheme External Link, and this lending does not
infringe copyright
4. Performing, showing or playing the work in public. Obvious examples are performing plays
and music, playing sound recordings and showing films or videos in public. Letting a
broadcast be seen or heard in public also involves performance of music and other copyright
material contained in the broadcast
5. Broadcasting the work or other communication to the public by electronic transmission. This
includes putting copyright material on the internet or using it in an on demand service where
members of the public choose the time that the work is sent to them
6. Making an adaptation of the work, such as by translating a literary or dramatic work,
transcribing a musical work and converting a computer program into a different computer
language or code.
Copyright is infringed when any of the above acts are done without permission, whether
directly or indirectly and whether the whole or a substantial part of a work is used, unless
what is done falls within the scope of exceptions to copyright permitting certain minor uses.
As a copyright owner you benefit from numerous economic rights. One of the purposes of
copyright is to allow creators of work to gain economic rewards for their efforts. It is
important to note that the owner of the copyright may not always be the person who created
the work.[27]
An example of some of the actions copyright owners can allow or prohibit:
Copying of their work - including photocopying, reproducing by handwriting, typing or
scanning into a computer, and taping live or recorded music
Issuing copies of the work to the public
Renting or lending copies to the public - unless the work is lent under the Public Lending
Right Scheme, which does not infringe copyright
Performing, showing or playing the work in public - eg performing plays and music, playing
sound recordings and showing films or videos in public, letting a broadcast be seen or heard
in public
Electronic broadcasting of the work to the public - eg putting copyright material on the
internet or using it in an on-demand service
Adapting the work - eg translating a literary or dramatic work, transcribing a musical work
or converting a computer program into a different computer language or code.

2.3 Economic Rights In U.S.A.

When we discuss with copyright law within the U.S., we have a tendency to area unit
typically concerning the economic rights in copyright like copy and public performance. each
international and U.S. copyright laws, however, conjointly offer for moral rights. The aim
of economic rights is to produce some cash payment for rights in copyright to the
author/copyright owner. The aim of ethical rights is to safeguard the temperament or name of
Associate in Nursing author (and not essentially the owner) of a copyright-protected work.
IPRs area unit national in scope, allowing wide variations across nations in their
protection regimes. International variations in IPRs are the topic of trade conflict for a
protracted time. as an example, the North american country |North American nation
Copyright Act adopted by the primary American Congress actively sought-after to encourage
the event of the business trade by subsidization rights to print, reprint, publish, and sell
literary works solely to domestic voters and residents (Post 1998). Foreigners weren't allowed
to get copyrights and also the law expressly allowable parallel importation of works
proprietary abroad. In consequence, yankee publishers were ready to publish and sell foreign
literary creations cheaply; this attracted sharp criticism, particularly from British authors.[28]
 Only with the passage of the International Copyright Act of 1891 did the U.S.A.
goverment acknowledge equal treatment for foreigners, so just for countries giving reciprocal
treatment to yankee authors. The modification was created as a result of each pressures from
foreign governments and, a lot of significantly, growing interests on the a part of U.S.A.
authors and publishers to receive protection abroad. The history people copyright law
demonstrates convincingly that countries that area unit substantial internet importers of
product and technologies that doubtless area unit subject to IPRs protection think about weak
protection to be a type of infant-industry support. To the extent that the losing interests from
weak protection area unit foreign, they command very little weight within the policy
framework.

CHAPTER 3

MORAL RIGHTS WITH RESPECT TO UK, USA AND INDIA

Everyone has the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the author.[29]
Moral rights were formally developed by French case law during the nineteenth
century when personalist doctrines influenced the emerging Authors Rights system.[30] The
essential idea underlying these rights is to protect the author beyond his and the societys
mere economic interests in the intellectual property; and help secure his artistic and similar
non-economic interests.
Present day systems have expanded beyond protection of mere economic interests and
begun absorbing traits previously exclusive to author centric systems. Economic factors have
ceased to exclusively constitute its core and copyrights have come to be viewed as an
accommodating bundle of various rights, with enough space to accommodate varying
versions of moral rights as well.[31]
Before the onset of a host of regressive literature, authors moral rights had been
eloquently laid out in the Berne Convention for the Protection of Literary and Artistic Works,
1886. Since then, the provisions within have undergone subtle changes and witnessed
exponentially savage interpretations to suit developed countries that prefer a loose noose.
Nevertheless, article
6bis(1) of the Berne Convention (1971) provides
Independently of the authors economic rights, and even after the transfer of said
rights, the author shall have the right to claim authorship of the work, and to object to any
distortion, mutilation or other modification of, or other derogatory action in relation to, the
said work, which would be prejudicial to his honour or reputation.
They were considered essential to impregnate authors with substantive personal rights
over their creations and expressions. In fact, by deciding that they were immutable in the
 hands of the author it seems that the drafters ventured to lay equal emphasis on moral rights
and economic rights and hoped to treat them independently of each other.[32]
It was perhaps felt that in order to mould it into at an effective and universally
agreeable regime, it required localized support structures in the form of national statutes,
guidelines, doctrines and precedents to determine the issue of infringement of moral rights
and this was not forthcoming.
Faced with an annoyed publishing industry that spanned the globe and national laws
that were tailored to national priorities, confusion began soon after as disagreement reined
between two blocs of developed territories that were helpless in the face of rivaling cultures
and demands- Europe and America.
The result was Article 9(1) of the TRIPS Agreement provides:
Members shall comply with Articles 1-21 and the Appendix of the Berne Convention
(1971). However, members shall not have rights or obligations under this Agreement in
respect of the rights conferred under Article 6bis of that Convention or of the rights derived
there from.
Thus, while on the one hand the Berne Convention and even the Universal
Declaration of Human Rights[33]envisaged moral rights, both within and outside the purview
of copyright law, the TRIPS agreement, for reasons that can be speculated upon[34],
effectively denuded the importance of the two in one irrational sweep.
Thus, while in the United States where there is a general reluctance on the part of the
entrepreneurial lobby to prioritize dictates of good faith, propriety and fairness over
bargaining powers innate to the marketplace- the resultant protection of moral rights has
largely been meek; nations like Germany and France have consistently and unquestionably
strived for enforce them.[35] To exemplify, while Frances regime declares moral rights
perpetual, inalienable and imprescribtible (even after the expiry of the term of copyright), in
England most moral rights (Except the right against false attribution) expire along with the
copyright.[36]USAs copyright laws failed even to recognize any statutory moral rights
protection up until 1990. Only with the passing of the Visual Artists Rights Act of 1990
were they partly recognized with limitations such as unenforceability in case the author is no
longer alive.[37]The rights conferred by this can be given as:
1. Right to Attribution: The acknowledgement of the author as the creator of his
workirrespective of copyright transfer and method of use of work.
2. Right of Integrity: The author has the right to protest misrepresentation, damage orabuse
of his work.
3. Right to Divulgation: The author has the right to choose the circumstances in which
hiswork is first presented to the public.
While determining infringement of moral rights there are primarily two tests that may be
applied31:
Subjective test requires the author of the work to establish such infringement.
An objective test requires expert or public opinion to establish such infringement.[38]
Under Indian Copyright Act, moral rights find expression in Section 57, which read as
follows
1) Independently of the author's copyright and even after the assignment either wholly or
partially of the said copyright, the author of a work shall have the right-
(a) To claim authorship of the work; and
(b) To restrain or claim damages in respect of any distortion, mutilation, modification or
other act in relation to the said work which is done before the expiration of the term of
copyright if such distortion, mutilation, modification or other act would be prejudicial to his
honour or reputation:
Provided that the author shall not have any right to restrain or claim damages in respect of
any adaptation of a computer programme to which clause (aa) of sub-section (1) of section
52 applies.
2) The right conferred upon an author of a work by sub-section (1), other than the right to
claim authorship of the work, may be exercised by the legal representatives of the author.
Initially this section was only applicable to literary works, thus leaving authors of
other works in a vacuous hole. But in MannuBhandari v.Kala Vikas Pictures[39]this position
was corrected and the amplitude of Section 57 was widened to include works other than
literary ones. That is to say that Indian law has moved beyond or at the very least widened the
very scope of an authors reputation to include his sum corpus and gone on to seek protection
of intellectual property injected by the author into his work even when such a work is
incapable of influencing his reputation directly.[40]
In many legal systems however, even the Berne Conventions provision have
regularly been interpreted by commentators[41]and other legal instrumentsto disallow
recourse to authors in case of complete destruction as the aforementioned argument
pertaining to the extrinsic measure of an authors repute continues to hold good.[42]
In MannuBhandari v.Kala Vikas Pictures, The Delhi High court observed that section 57
lifts the authors status beyond the material gains of copyright and gives it a special status. An
authors right to restrain distortion etc. of his work is not limited to a case of literary
reproduction of his work. The restraint order in the nature of injunction under section 57 can
be passed even in cases where a film is produced based on the authors novel. The language
of section 57 is of the widest amplitude and cannot be restricted to literary expression
only.Visual and audio manifestations are directly covered.
In this case the plaintiff, the author of a novel titled AapkaBunty, assigned the filming rights for
this novel to the defendant, who in turn produced the film SamaykaDhara. Upon watching the film, the
plaintiff felt that the original novel was mutilated, and initiated a suit under Section 57 seeking permanent
injunction restraining the screening and exhibition of this film. The Single Judge of the Delhi High
Court refused injunction taking a simplistic view that the contract between the plaintiff and the defendant
permitted modifications to the novel for the purpose of filming it.
On appeal before the Division Bench, the High Court considered the effect of the protection
guaranteed under Section 57 and held that they stood independent of any contractual right to make
modifications. Any modification that was in the nature of a distortion or mutilation of the authors work
would be incongruous with the letter and spirit of this provision. The Court however clarified that it had
nothing to do with the morality of the changes and only their authenticity, keeping in mind the constraints
of the medium in which it was reproduced or adapted. Based on these observations as to the scope
of Section 57 and the principles governing the same, the High Court suggested a few changes to the film.
 In Amar NathSehgal v. Union of India[43], the Ministry of Works, Housing and
Supplies of the Union Government of India commissioned Amar NathSehgal, to design a
mural. The work was to adorn the walls around a central arch of the VigyanBhawan. The
design was approved by PanditJawaharLalNehru,and the mural was completed in 1962. It
measured a mammoth 40 feet high and 140 feet long.
The mural won widespread acclaim, and gave the world a glimpse of the real India its
Common people i.e the artisans and the farmers of India and the lives they led cast in sold
Bronze. It became a landmark. Then the VigyanBhawan buildings were renovated. In the
process, the mural was ripped off the walls and the remnants put into store. Distressed by the
destruction of his artistic work, and after petitioning the authorities for years without a
response, Mr. Sehgal brought a lawsuit against the government for violation of his moral
rights. Specifically, he claimed that
The separating the mural into parts from the whole that it was in its completed form
Constituted an act of mutilation;
The Ministrys action was prejudicial to his honor and reputation as an artist, because in
mutilating the work, it insulted the very nature and glory given to the work previously;
The destruction of the part of the mural bearing his name violated his right to claim
authorship.

Justice PradeepNandrajog of the Delhi High Court ruled that: "All rights of the mural
shall henceforth vest with Mr. Sehgal.The court ordered the return of the remains of the mural
to the sculptor, and also slapped damages of Rs.500, 000 (some US$ 12,000) on the
defendant.
The decree was not fulfilled, and Mr. Sehgal again took recourse to the court in execution
Proceedings, while the defendant appealed against the decree to a division bench of the court.
Ultimately, the matter was amicably resolved. After the hard fought and emotional battle, Mr.
Sehgal, in an act of graciousness, waived the claim of damages against the government
inExchange for the return of the mural.
In Suresh Jindal v. RizsoliCorriere Della Sera Prodzioni T.V. S.P.A [44], The appellants primary
grievance here was that he had made valuable contributions to the script of a television serial proposed by
the respondents including modifications suitable to the Indian context, thereby facilitating the grant of
permission by the Indian Government to the respondents to shoot parts of their proposed television serial
in India. He contended that this was done pursuant to an agreement between the parties wherein he was
also promised acknowledgment as co-producer of this serial. Once the permission was obtained, the
respondents conveniently kept the appellant out of the picture. The appellant claim to a three-second
display of his name as a co-producer in the credit-titles of the serial. Having pursued this claim before
both the Single Judge and Bench of the Delhi High Court with no success, the appellant moved
the Supreme Court.
Holding in favour of the appellant, the Supreme Court observed that the appellant had certainly made
valuable contributions to the endeavour of the respondents though he could not be branded a producer even
as per his own case that he had been kept out of the picture once the requisite approvals from the Indian
Government came through. Though there was uncertainty about the existence of a concluded contract
between the parties, the Court still felt that the appellant did play some part in making the film possible
and that the respondents were acting unreasonably in denying him the benefit of the limited
acknowledgment that he was entitled to. In view of the respondents disinclination to extend even this
courtesy to the appellant, the Court held that in case the film was proposed to be, or was exhibited either
on television or in any other medium in India, it should not be so exhibited by the respondent or their
agents unless it carried, in its title shots, an acknowledgment of the services rendered by the appellant to
the producers in some appropriate language.
In NehaBhasin v. Anand Raj Anand[45], reaffirmed the equitable right recognised by the Supreme
Court in Suresh Jindal Case. The plaintiff in this case was a singer who contended that the defendants had
not acknowledged or given due credit to her for singing a few songs in a Bollywood film. Since a singer is
not the author of any copyrightable work as per the Act, Section 57(1)(a) would not apply to such cases.
Despite this, the Delhi High Court has granted her equitable relief in terms of an injunction restraining the
defendants from using, selling, distributing, exhibiting, or advertising the music or the promos containing
the disputed songs of this Bollywood film without displaying her name as the lead female singer.
Applying Section 70 of the Indian Contract Act, the High Court found a quasi-contract between the
parties, which in turn would require the defendant to compensate the plaintiff for services rendered in
expectation of some commercial consideration. Apart from this finding, which would influence the
outcome after trial insofar as award of damages goes, the High Court has recognised that the plaintiffs
right in equity to receive proper credit for the songs she sand would stand violated if these songs were
attributed to some other singer despite her voice being used. The defendants had in this case attributed
another singer as the lead female singer and placed the plaintiff in the credits as a backup singer.
The Court viewed this as a situation of adding insult to injury, since the plaintiffs aspirations to rise as a
female vocalist would receive a big jolt if in the market she is perceived merely as a backup singer and not
as a lead singer.

CHAPTER 4

RELATED RIGHTS WITH RESPECT TO INTERNATIONAL LAW

4.1 Performers Right:

While the creative or cultural contributions made by people who play instruments,
read poetry, and act in plays have long been valued, nonetheless performers have been poorly
served by intellectual property law. Indeed, it was not until technological changed at the
beginning of the twentieth century threatened the livelihood of performers that the law
intervened to protect performers. This occurred in 1925 when criminal sanctions were
introduced to discourage people from abusing a performers right to control the fixation and
subsequent use of their performances.[46] The courts provided additional relief by allowing
performers to bring civil suits for injunctions and damages for threatened breaches of the
criminal law.[47] While it might have been expected that copyright law would have been
expanded to accommodate performers, this was not the case. In part this was because the
fleeting and transitory nature of performances meant that they could not satisfy the
requirement of material form that is a pre-requisite for the subsistence of copyright. Another
reason why performers were not protected by copyright was that they were considered to be
subservient to the interests of the proper rights-holders: namely, authors, composers, and
dramatists. While authors and composers create primary works, performers were seen to
merely translate or interpret these works. In short, it was believed (at least by some) that
performers were involved in acts that were less creative than authors, graphic artists, and
film directors. The second-rate status of performers was reflected in the decision that
performers did not belong within the Berne Convention (along with the producers of
phonograms and broadcasting organizations). Indeed it wasnt until the Rome Convention of
1961 that performers were recognized at the international leve1.3 The rights given to
performers have been expanded further in the WIPO Performers and Phonograms Treaty
1996.
Subsequent attempts to expand the protection available to performers often met with
the response that it was not necessary to provide additional protection because performers
were already compensated through industry pay awards. In part these awards reflect the fact
that performers have learned to negotiate collectively, through union action (such as Actors'
Equity). Eventually, the lobbying efforts of performers paid off when the 1988 Act provided
performers with the right to control the recording of live performances (and other related
rights). As the rights were not assignable, they are described as 'non-property' rights. The
1988 Act also provided producers with certain rights when they entered into exclusive
contracts to record performers.4The scope of the protection given to performers was further
expanded as a result of European harmonization. To bring UK law into line with the Rental
Rights Directive, the 1988 Act was amended from 1 December 1996 to provide performers
with fully assignable 'property rights' and certain 'rights to remuneration'.

4.1.1 Rights

There are three types of rights available to protect performers: non-property rights,
property rights, and remuneration rights. Performers rights are granted in relation to the
performance of dramatic or musical works, readings and recitations of literary works, and
also to 'a variety act or any similar presentation'.One or more individuals must give the
performance. The beneficiary of the rights given in a performance is prima facie the
performer. There are no exceptions where the performer is employed.6

4.1.2 Non-Property Rights

A performer has the right to authorize the recording of a live performance. They also
have the right to prevent the making of a recording of a live performance from a broadcast or
cable programme in which it has been included.' (These are the acts of 'bootlegging'.) These
rights are not infringed if the recording is made for private and domestic purposes.
Performers also have the right to prevent their live performances being broadcast or included
in a cable programme. Prior to the mass distribution of fixed recordings, this right would
have been very important. Where a recording has been made without the consent of a
performer, his or her rights are infringed when the wrongfully recorded performance is shown
or played in public, broadcast or included in a cable-programme service. This right is only
infringed where the defendant knew or had reason to believe the recording was made without
the performer's consent.' This would cover the playing of obviously bootlegged recordings at
discotheques or over the radio. Performers are also given the right to control the distribution
of illicit recordings. These are recordings made, otherwise than for private purposes, without
the consent of the performer or the person, if any, having recording rights.' Importation and
sale of illicit recordings is prohibited where the person knows or has reason to believe that the
recording is illicit!'
All of these non-property rights are non-transmissible, except on death." Infringement
is actionable as a breach of statutory duty. A person may also be subject to criminal liability if
they knowingly commit certain commercial acts in relation to illicit recordings!' At present,
performers do not benefit from moral rights. However, a consultation process is under way to
consider how UK law should be amended to give effect to Article 5 of the WIPO
Performances and Phonograms Treaty (which provides for moral rights of attribution and
integrity for performers)!' Consideration is also being given as to whether these amendments
should extend to audiovisual performances.

4.1.3 Property Rights

Performers are also given property rights in their performances. These rights were
introduced in order to implement the Rental Rights Directive!' The performer's property
rights include the right to make copies of a recording of a qualifying performance, the right to
issue copies of a recording to the public, and the right to rent or lend copies.' 6 The definitions
of these three rights correspond to those of a copyright owner." In contrast with the other
rights given to performers, these property rights are transmissible. Any assignments made
must be in writing and signed by the assignor.'s In relation to film-production agreements, a
performer is presumed, in the absence of an agreement to the contrary, to have transferred the
rental right to the producer.

4.1.4 Right Of Remuneration

Performers are also given two 'remuneration rights'. These were introduced in the
process of implementing the Rental Rights Directive. The most important of these, at least
financially, is the right to claim equitable remuneration from the owner of copyright in a
sound recording of a qualifying performance, where the sound recording is played in public,
broadcast or included in a cable-programme service.' This right formalized the pre-existing
practice whereby recording companies made ex gratia payments to bodies representing
musicians. Under the new regime, performers must claim their revenue that accrues in the
UK from the collecting society that administers the performing and broadcasting rights on
behalf of the owners of copyright sound recordings, namely Phonographic Performance
Limited. In practice, this is done via the collecting society PAMRA (the Performing Artists'
Media Right Association).' The second remuneration right is less important. This provides
that where a performer has transferred his or her rental right concerning a sound recording or
film to the producer, the performer retains the right to equitable remuneration for the rental of
sound recordings or films.'
Both of the remuneration rights may only be assigned to a collecting society.' In the
absence of a relevant agreement, the Copyright Tribunal may determine royalty rates. 24 As yet
there have been no cases where the Tribunal has been asked to assess what an equitable
remuneration should be. In so far as the remuneration rights are intended to strengthen the
bargaining position of performers, it is unlikely that the test of what a willing assignor and
assignee of the right would have reached in the circumstances will offer much guidance as to
the amount that ought to be paid. Rather, one might expect that equitable remuneration is
defined proportionally. Under this approach, the rate to be paid to a performer would take
account of the extent to which the contractual remuneration secured by the performer is a fair
proportion of the profits. This would also take account of the relative importance of the
claimant's contribution.' It is possible, however, that the notion of equitable remuneration
might be understood differently to mean that the performer ought to receive a rate similar to
that which is received by other comparable performers.

4.1.5 Exclusive Recording Contracts

Special provisions exist in the 1988 Act that relate to exclusive recording contracts.
Section 185 defines an exclusive recording contract as 'a contract between a performer and
another person under which that person is entitled to the exclusion of all other persons
(including the performer) to make recordings of one or more of his performances with a view
to their commercial exploitation.' If the person having such rights is a qualifying person, then
his or her consent is required by anyone else wishing to make a recording. A party who is the
beneficiary of an exclusive recording contract may commence an action for breach of
statutory duty against a person who makes such a recording, or who shows a wrongful
recording in public or broadcasts it," as well as against those dealing commercially in such
illicit recordings.' While performers' non-property rights are not transferable, the person with
an exclusive recording contract may assign rights under that contract.'

4.1.6 Duration, Defences, And Remedies

All performers' rights last for at least fifty years from the end of the year of the
performance. However, if a recording incorporating the performance is released within this
period, the rights last for fifty years from the year of release.' Rights vested in a performer at
the time of their death may only be exercised by a person specifically nominated in the
performer's will or by their personal representative.'
Performers' rights are subject to a host of defences that, rather inconveniently, are contained
in Schedule 2 to the 1988 Act. The defences parallel those for copyright and include fair
dealing for criticism or review, fair dealing for reporting current events, incidental inclusion,
as well as a range of educational and library defences. These are all discussed in Chapter 9,
and the comments made there apply equally to performers (mutatis mutandis). One defence
notable by its absence is the defence of fair dealing for research and private study. The reason
for this is that most of the acts covered by the defence fall outside the rights conferred on
performers (which do not extend to the making of recordings for private and domestic
purposes). It does seem, however, that a performer will be in a weaker position than
copyright owners where performances or works are reproduced for commercial research.
Like copyright, the property and non-property rights are enforceable in civil and criminal
actions. The usual remedies for breaches of statutory duty are available, namely injunctions,
damages or account of profits. The right-owner may also prosecute for a range of statutory
offences, seek orders which include delivery-up and disposal, and seize infringing articles
from traders without premises. These remedies are discussed in Chapter 48.33

4.1.7 Foreign Performances

Performances by foreign performers or performances that take place in foreign coun-

tries will be protected in the UK if the performance is 'qualifying'. A performance is a
'qualifying performance' if it is given by a 'qualifying individual' or takes place in a
'qualifying country'. A 'qualifying individual' is a citizen of, or an individual resident in, a
'qualifying country'. A 'qualifying country' is defined as the United Kingdom, another
member state of the EEA, or a country 'designated ... as enjoying reciprocal protection' under
section 208 of the 1988 Act." Section 208 empowers Her Majesty to designate certain
countries as qualifying countries by Order in Council: either countries party to a convention
relating to performers' rights (namely the Rome Convention or TRIPs), or countries deemed
to give 'adequate protection' to performances by British citizens, residents or taking place in
the United Kingdom.3' Where a country is designated, it seems that such designation operates
retroactively." Unfortunately, the relevant Order in Council does not contain any saving for
vested rights or for those who have prepared arrangements on the assumption that no relevant
performer's right operated."
Section 185, which confers equivalent rights on a person who is party to an exclusive
recording contract, does so only if he or one of his licensees, is a 'qualifying person'. A
'qualifying person', is defined as a 'qualifying individual' or a body corporate sufficiently
connected with a 'qualifying country'.

4.2 Database Right

Many different technologies organize and order information: encyclopedias, filing
cabinets, and textbooks all play their role in placing information in a usable format.
Databases are another obvious example. While databases have existed in one form or another
for a very long time, digital technology has transformed and revitalized databases. In
particular, the digital database has enabled the production of facilities that enable easy access
to vast collections of information. Examples familiar to lawyers include LEXIS and
WESTLAW, as well as CD-ROMs such as the 'Index to legal periodicals'. The value of these
facilities is the comprehensive nature of the information that they contain and the ease of
access, rather than the way that information is ordered. While databases can cost a
considerable amount of money to construct, they are readily copied. This makes them an
ideal candidate for intellectual property protection.
Faced with the fact that the level of protection varied, sometimes considerably,
between member states, the EC decided to harmonize the law that protected the effort that
went into creating databases. Eventually these efforts took shape in the form of the Database
Directive.' The Database Directive required member states to introduce a two-tier system of
protection for databases.' The first tier involves retaining copyright protection for databases
that are `original'." The Directive also requires member states to provide a second tier of
protection by way of a new sui generis right known as the 'database right'. Database rights
arise in relation to databases, including those that fail to reach the specified originality thresh-
old." The database right is separate from and in addition to any copyright protection that may
exist in relation to a database. The new right was introduced into the United Kingdom on 1
January 1998, in the Database Regulations.' This new database right has been described as
'one of the least balanced and most potentially anti-competitive intellectual property rights
ever created.'"
As yet, it is difficult to assess the impact of the new database right. In a number of
ways the protection provided by the database right is stronger than that conferred by
copyrighta rather bizarre situation given that the criteria of protection seems to be more
generous than for copyright. One of the problems with database protection is its potential to
be extended indefinitely. If this occurs, third parties will have to pay to access the data or
generate the data themselves. At the same time the exceptions to the database right are much
narrower than exist for copyright. It has been doubted whether it was necessary for the
protection of databases to be nearly as strong as it is.

4.2.1 Subsistence

The database right is a property right that subsists in a database whether made before
or after 1 January 1998." A 'database' is defined as 'a collection of independent works, data or
other materials that are arranged in a systematic or methodical way, and are individually
accessible by electronic or other means.'" The database right only arises if there has been a
substantial investment in obtaining, verifying or presenting the contents of the database.
'Investment' includes any investment, whether of financial, human or technical resources. It
has been said that it is unlikely that a person who verifies the information in someone else's
database would be given any rights in the database. This is because 'verification is for the
owner of the data; it is not a back door to copying: Investment may be 'substantial' in terms of
quality, quantity or a combination of both.
The basic term of protection is fifteen years.' More specifically, the database right
expires fifteen years from the end of the calendar year in which the database was completed."
However, where a database is made available to the public before the end of the period fifteen
years from when it was made, rights in the database expire fifteen years from the end of the
calendar year in which the database was first made available to the public. It is possible that a
database right might subsist for thirty years. (And may thereafter be extended, as discussed
below). Where copies of the database as published bear a label or a mark stating that the
database was first published in a specified year, the label or mark shall be presumed to be
correct until the contrary is proved."
It is important to note that a new period of protection may be acquired for a database.
For this to occur there must be a substantial change to the contents of the database. This will
include a substantial change resulting from the accumulation of successive additions,
deletions or alterations (so long as the changes constitute a substantial new investment in the
database). In these circumstances the 'new' database qualifies for its own term of protection."
This means that while a person who can access an old version of a database in which the sui
generis right has expired will be able to extract and reuse the information from that public
domain database," they would infringe if they took the same information from a database in
which in a new period of protection subsisted.
4.2.2 Makers And Owners

The 'maker' of a database is the first owner of the database right.' Subject to an
exception as regards employees, the maker of the database is the person who takes the
initiative in obtaining, verifying or presenting the contents of a database, and who assumes
the risk of investing in that obtaining, verification or presentation." The implication of this is
that the maker must take the initiative and the risk of the investment, if one person takes the
risk and another person takes the initiative, joint making may occur. Where a database is
made by an employee in the course of employment, unless otherwise stipulated, the employer
is regarded as the maker of the database."
A number of presumptions simplify the task of proving ownership." Where a name
purporting to be that of the maker appears on copies of the database as published or on the
database when it was made, the person whose name appeared is presumed to be the maker of
the database and to have made it in an employment relationship. Where copies of the
database as published bear a label or a mark naming a person as the maker of the database,
the label or mark is presumed to be correct. Both presumptions are rebuttable.
The database right is an assignable property right, and sections 90-3 of the 1988 Act
apply to the database right as they would to copyright works. It is also possible to license
database rights, and licensing schemes and licensing bodies are subject to supervision in
accordance with Schedule 2. The jurisdiction of the Copyright Tribunal has been extended
accordingly.

4.2.3 Infringement, Rights, And Remedies

The database right is infringed where a person, without the consent of the owner of
the right, 'extracts' or reutilizes' all of, or a substantial part of, the contents of the database.
'Extraction' means the permanent or temporary transfer of the contents of a database to
another medium by any means or in any form." Playing a song from a jukebox would not be
an extraction because the contents are not transferred to another medium. `Reutilization'
means making those contents available to the public by any means. The 'infringing' act must
take place in relation to a 'substantial' part of the contents of the database. The question of
whether the part taken is substantial depends on the quantity and/or the quality of the part
taken. Importantly, Regulation 16(2) provides that the repeated and systematic extraction or
reutilization of insubstantial parts of the contents of a database may amount to the extraction
or reutilization of a substantial part of those contents.
The database right allows the maker to control the first sale, but not the subsequent
distribution, of hard copies on which data is stored. Where a copy of a database has been sold
within the EEA by, or with the consent of, the owner of the database right in the database,
further sales within the EEA of that copy shall not constitute the extraction or reutilization of
the contents of the database. It is interesting that sale and not other forms of transfer only
exhaust the right.[48] Consequently, the sale by a customer of gratuitously distributed copies
of databases, such as British Telecom telephone directories, may infringe. Oddly, where there
has been first sale of hard copies on which data are stored, the Regulations appear to suggest
that the lawful buyer of a copy of a database cannot give it away, nor rent it.
 In relation to the remedies available for breach of the database right, the Database
Regulations provide that equivalent provisions of the 1988 Act apply in relation to the
database right and databases in which that right subsists, as they apply in relation to copyright
and copyright works.63

4.2.4 Exceptions And Defences

4.2.4.1 Lawful use

A lawful user of a database which has been made available to the public in any
manner is entitled to extract or reutilize insubstantial parts of the contents of the database for
any purpose.' This limitation may not be excluded by agreement.

4.2.4.2 Fair dealing

Where a database has been made available to the public in any manner, the database right
is not infringed by a fair dealing with a substantial part of its contents if three conditions are
satisfied:
i. If that part is extracted from the database by a person who is a lawful user of the database;
ii. If it is extracted for the purpose of illustration for teaching or research and not for any
commercial purpose; and
iii. If the source is indicated." In exempting pedagogical uses, this provision gives rise to the
possibility that a person may infringe copyright in an original database, but not the database
right in the component data."

4.2.4.3 Public lending

An exception is also made for public lending. For lending to be 'public it must take
place through an establishment which is accessible to the public. Such an establishment is
permitted to charge borrowers an amount that does not go beyond what is necessary to cover
the costs of the establishment.' However, permitting remote access is not deemed to constitute
a lending." Bizarrely, the exception for public lending does not apply to the making of a copy
of a database available for on the spot reference use. Even if the lending is gratuitous and in a
public establishment, the Regulations suggest that it may be an infringement."

4.2.4.4 Other defences

Defences also exist in relation to parliamentary and judicial proceedings, Royal

Commissions and statutory inquiries, material open to public inspection or on an Official
Register, material communicated to the Crown in the course of public business, public
records, and acts done under statutory authority:
The Regulations also provide a defence where the extraction or reutilization occurs at
a time when the identity of the maker could not be ascertained by reasonable inquiry, or in
pursuance of arrangements made at a time when such identification was not possible. It must
also be reasonable to assume that the database right has expired: There does not appear to be
any limitation as regards television listings.

4.2.5 Foreign Databases

The database right will only subsist where its maker was, at the material time' either: a
national of an EEA state; habitually resident within the EEA; a body incorporated under the
law of an EEA state; a body with its principal place of business or its registered office within
the EEA; or a partnership or other unincorporated body which was formed under the law of
an EEA state which, at that time, satisfied certain conditions:73

4.3 Public Lending Right

Although copyright in books enables authors to control (and seek
compensation) where their works are copied, they have no right to prevent a range of
people from reading the same book. Typically this occurs when books are repeatedly
borrowed from a library. As borrowing reduces sales of a work, when it is carried out on a
large scale (public libraries in England lend 600 million times a year), it can
substantially reduce an author's expected income. To remedy these problems, a public
lending right was established in the UK in 1979. The Public Lending Rights Act 1979
provides a framework for the scheme which is contained in the Public Lending Right
Scheme 1982. This Scheme has been amended a number of times and its modern form is
set out in a 1990 text.
The public lending right scheme entitles authors to remuneration where their works
are loaned by public libraries." This is based on the principle that authors should be
compensated for lost revenues since such loans are substitutes for sales. The public lending
right does not provide authors with large sums of money. Basically, an author' living in the
UK' may register their right to receive a share of up to 6,000 per annum from a government
fund of 5 million." The right persists for the same period as copyright. To qualify for the
scheme, authors must be EEC nationals or British or German residents. The right only applies
with respect to books.The mechanism by which the fund is administered is left by Parliament
to the Secretary of State. However, section 3(3) declares that the entitlement is to be
'dependent on, and its extent ascertainably by reference to, the number of occasions on which
books are lent out from particular libraries.' Libraries thus have to provide information about
the books they have loaned.

CHAPTER 5

LIMITATIONS TO THE RIGHT AND CONCLUSION

Authorial entities are socially constructed and historically contingent. They are
nurtured by cultural and social properties owned and maintained by the creative collectivity.
Authors work it as a container of intrinsic values and motivations as a source for
generating original creative expressions embodying unique personality traits. Treating authors
as distinctive, independent agents who own themselves and have relatively clear boundaries
to protect in order to ensure their integrity and permit them to function more effectively in the
world
A balanced translation of this right into a workable legal standard requires a
redefinition of the rigid set of time limitations to which moral rights are subject to reward the
author for his investment of human capital and cater to the public interest and its role as the
entity that eventually takes the work in new directions. Practically, a limited-in-time
actionable right can achieve accommodating these concerns for authors for infringement of
their moral rights, lasting as long as economic rights. Once the actionable right expires, the
publics unlimited right to be informed begins. The right of the public can be secured via a
system of perpetual mandatory disclaimers requiring a user of an original work for which
copyright has expired and moral rights are no longer actionable to provide sufficient
attribution to the author of the original work.
Incorporating moral rights in common law systems, has not, so far, generated good
results. The versions legislated are not even remotely as extreme as the solemn statutory
declarations and high flying rhetoric of the civil law tradition. Moral rights might not need
to be as strong, but if they have been invited into the copyright discourse because of their
fundamental importance for coherent copyright regimes, then quasi-moral rights cannot give
authors and the public what moral rights were designed to give. Despite their rejection by
many, moral rights ambitions are good and necessary.

5.1 Limitations To The Right

The first limitation is the exclusion from copyright protection of certain categories of
works. In some countries, works are excluded from protectionif they are not fixed in tangible
form. For example, a work of choreographywould only be protected once the movements
were written down in dancenotation or recorded on videotape. In certain countries, the texts
of laws,court and administrative decisions are excluded from copyright protection.
The second category of limitations concerns particular acts of exploitation, normally
requiring the authorization of the rights owner, which may, under circumstances specified in
the law, be carried out without authorization. There are two basic types of limitations in this
category: (a) free use, which carries no obligation to compensate the rights owner for the use
of the work without authorization; and (b) non-voluntary licenses, which do require that
compensation be paid to the rights owner for non-authorized exploitation.
Examples of free use include:
Quoting from a protected work, provided that the source of the quotation and the
name of the author is mentioned, and that the extent of the quotation is compatible with fair
practice; use of works by way of illustration for teaching purposes; and use of works for the
purpose of news reporting.

5.2 Free Use For Reproduction

 In respect of free use for reproduction, the Berne Convention contains a general rule,
rather than an explicit limitation. Article 9(2) states that Member States may provide for free
reproduction in special cases where the acts do not conflict with normal exploitation of the
work and do not unreasonably prejudice the legitimate interests of the author. As noted above,
many laws allow for individuals to reproduce a work exclusively for their personal, private
and non-commercial use. However, the ease and quality of individual copying made possible
by recent technology has led some countries to narrow the scope of such provisions,
including through systems which allow certain copying, but incorporate a mechanism for
payment to rights owners for the prejudice to their economic interests resulting from the
copying.
In addition to the specific categories of free use set out in national laws, the laws of
some countries recognize the concept known as fair use or fair dealing. This allows use of
works without the authorization of the rights owner, taking into account factors such as the
nature and purpose of the use, including whether it is for commercial purposes; the nature of
the work used; the amount of the work used in relation to the work as a whole; and the likely
effect of the use on the potential commercial value of the work.

5.3 Non-Voluntary Licenses

Non-voluntary licensesallow use of works in certain circumstances without the
authorization of the owner of rights, but require that compensation be paid in respect of the
use. Such licenses are called non-voluntary because they are allowed in the law, and do not
result from the exercise of the exclusive right of the copyright owner to authorize particular
acts. Non-voluntary licenses were usually created in circumstances where a new technology
for the dissemination of works to the public had emerged, and where the national legislator
feared that rights owners would prevent the development of the new technology by refusing
to authorize use of works. This was true of two non-voluntary licenses recognized in
the Berne Convention, which allow the mechanical reproduction of musical works and
broadcasting. The justification for non-voluntary licenses is, however, increasingly called into
question, since effective alternatives now exist for making works available to the public
based on authorizations given by the rights owners, including in the form of collective
administration of rights.
Another limitation is of the duration of entitlement to right, Copyright does not
continue indefinitely. The law provides for a period of time during which the rights of the
copyright owner exist. The period or duration of copyright begins from the moment when the
work has been created, or, under some national laws, when it has been expressed in a tangible
form. It continues, in general, until sometime after the death of the author. The purpose of this
provision in the law is to enable the authors successors to benefit economically from
exploitation of the work after the authors death.

5.4 Enforcement Through The Lens Of Remedy

The Berne Convention contains very few provisions concerning enforcement of
rights, but the evolution of new national and international enforcement standards has been
dramatic in recent years due to two principal factors. The first concerns advances in the
technological means for creation and use (both authorized and unauthorized) of protected
material. Digital technology in particular makes it easy to transmit and make perfect copies of
any information existing in digital form, including copyright-protected works. The second
factor is the increasing economic importance in the realm of international trade of the
movement of goods and services protected by intellectual property rights. Simply put, trade
in products embodying intellectual property rights is now a booming, worldwide business.
This is acknowledged in the WIPO Copyright Treaty (WCT), which requires
Contracting Parties to ensure that enforcement procedures are available under their law so as
to permit effective action against any infringement of rights covered by the Treaty, including
remedies to prevent or deter further infringements.
The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which
contains more detailed provisions on the enforcement of rights, is ample evidence of this new
link between intellectual property and trade. The following paragraphs identify and
summarize some of the enforcement provisions found in recent national legislation. They
may be divided into the following categories: conservatory or provisional measures; civil
remedies; criminal sanctions; measures to be taken at the border; and measures, remedies and
sanctions against abuses in respect of technical devices.

5.5 Conservatory Or Provisional Measures

Conservatory or provisional measures have two purposes: first, to prevent
infringements from occurring, in particular to prevent the entry of infringing goods into the
channels of commerce, including entry of imported goods after clearance by customs; and
second, to preserve relevant evidence in regard to an alleged infringement. Thus, judicial
authorities may have the authority to order that provisional measures be enacted without
advance notice to the alleged infringer. In this way, the alleged infringer is prevented from
relocating the goods to avoid detection. The most common provisional measure is a search of
the premises of the alleged infringer and seizure of suspected infringing goods, the equipment
used to manufacture them, and all relevant documents and other records of the alleged
infringing business activities.

5.6 Civil Remedies

Civil remedies compensate the rights owner for economic injury suffered because of
the infringement, usually in the form of pecuniary damages, and create an effective deterrent
to further infringement. This is often in the form of a judicial order to destroy the infringing
goods and the materials which have been predominantly used for producing them. If there is a
danger that infringing acts may be continued, the court may also issue injunctions against
such acts, failure to comply with which would subject the infringer to payment of a fine.

5.7 Criminal Sanctions

Criminal sanctions are intended to punish those who willfully commit acts of piracy
on a commercial scale and, as in the case of civil remedies, to deter further infringement. The
purpose of punishment is served by substantial fines, and by prison sentences consistent with
the level of penalties applied for crimes of corresponding seriousness, particularly for repeat
offenses. The purpose of deterrence is served by orders for the seizure and destruction of
infringing goods, and of the materials and equipment used predominantly to commit the
offense.

5.8 Measures To Be Taken At The Border

Measures to be taken at the border are different from the enforcement measures
described so far, in that they involve action by the customs authorities rather than by the
judicial authorities. Border measures allow the rights owner to request that customs
authorities suspend the release into circulation of goods that are suspected of infringing
copyright. This is intended to give the rights owner a reasonable time to commence judicial
proceedings against the suspected infringer, without the risk that the alleged infringing goods
will disappear into circulation after customs clearance. The rights owner must (a) satisfy the
customs authorities that there is prima facie evidence of infringement, (b) provide a detailed
description of the goods so that they can be recognized and (c) provide a security to
indemnify the importer, the owner of the goods, and the customs authorities in case the goods
turn out to be non-infringing.

5.9 Sanctions
The final category of enforcement provisions, which has achieved greater importance
since the advent of digital technology, includes measures, remediesand sanctions against
abuses in respect of technical means. In certain cases, the only practical means of preventing
copying is through so-called copy protection or copy-management systems. These use
technical devices, which either entirely prevent copying, or make the quality of the copies so
poor as to be unusable.
Technical means are also used to prevent the reception of encrypted commercial
television programs except with use of decoders. However, it is technically possible to
manufacture devices to circumvent such copy protection and encryption systems.
The enforcement provisions are intended to prevent the manufacture, importation and
distribution of such devices. So too are provisions to prevent the unauthorized removal or
alteration of electronic rights management information, and the dissemination of copies of
works from which such information has been removed. Such information may identify the
author or rights owner, or contain information about the terms and conditions of use of the
work. Removing it may result in the distortion of computerized rights management or fee-
distribution systems.

What is the Scope of Protection in the Copyright Act, 1957?

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph
films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the
expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation
or mathematical concepts as such (Please see Article 9.2. of TRIPS).
Language
IP Experts Focus On 3-Step Test In Copyright, Discuss Way Forward
21/12/2011 BY RACHEL MARUSAK HERMANN FOR INTELLECTUAL PROPERTY WATCH 4
COMMENTS
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content, please subscribe now. You may also offer additional support with your subscription, or donate.
Although intellectual property issues did not play a big role in the Eighth World Trade Organization
Ministerial Conference, some international stakeholders took advantage of the global gathering to meet,
discuss and debate the 3-step test in copyright, a key topic in IP today. The discussion included a call for a
WTO declaration on the 3-step test.
A small group of high-level industry, trade, IP experts and policymakers left the ministerial meeting held at
a nearby conference centre to attend a side event on The TRIPS Agreement and Copyright at the WTO.
The 16 December event was organised by Knowledge Ecology International (KEI) and provided the
opportunity to take a closer look at how the 3-step test in copyright is being used today and if there is a
need to redefine it.
Definition and Use
Originating in the Berne Convention for the Protection of Literary and Artistic Works [pdf], the 3-step test
is a clause that establishes three cumulative conditions to the limitations and exceptions of a copyright
holders rights, basically establishing the legal parameters for reproducing a work. Under Berne Article
9.2, the 3-step test is defined as the following: It shall be a matter for legislation in the countries of the
Union to permit the reproduction of such works in certain special cases, provided that such reproduction
does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate
interests of the author.
The 3-step test has been included in several subsequent international IP conventions, most notably in
Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The
language of the 3-step test has evolved since its Berne beginnings. While Berne Article 9.2 only applies to
reproduction rights, Article 13 in TRIPS does not specify a particular category of rights to which it may
apply, leaving it open to cover copyright more broadly.
WTO Intellectual Property Counselor Hannu Wager spoke at the event and told Intellectual Property
Watch, The central DNA of the 3-step test has not changed so much since the Berne Convention. He
turned the focus of the conversation more toward the jurisprudence of how the 3-step test has been applied
in copyright, patents and trademarks. From the European Communities case against Canada for a lack of
pharmaceutical patent protection to its case against the US for homestyle and business exemptions
allowing small business owners to play music without paying royalties, Wager explained the application of
the test demonstrates that it can take into account many different kinds of competing interests. The
general aspect that emerges from these cases emphasises the balance which is built into these tests.
Call for a WTO Declaration
As librarians seek to preserve books electronically and the visually impaired fight for increased access to
works in formats for their use, the interpretation and application of the 3-step test has garnered increasing
attention. These issues have topped the agenda of the World Intellectual Property Organization as of late.
In the last session of the Standing Committee on Copyright and Related Rights (SCCR), which concluded
on 2 December, substantial work was conducted on defining copyright limitations and exceptions for
various user groups (IPW, WIPO, 5 December 2011). From an audiovisual treaty to exceptions for
libraries, a number of targeted treaties are in the works.
Some argue that all of these emerging cases for special exceptions to copyright demonstrate a need for
greater clarification at the international level. KEI Director James Love said during his presentation at the
side event that there is some confusion surrounding how the 3-step test is read and how it is interpreted.
For example, he said that the definition of each qualifying word in the test, like normal and
reasonable, are largely disputed.
Love suggested that a WTO declaration, similar to the Doha Declaration on the TRIPS Agreement and
Public Health, on a balanced interpretation of the 3-step test in copyright law is needed to protect access to
knowledge. The WTO should consider adopting a declaration on the balanced interpretation of the 3-step
test to ensure that WTO rules do not undermine national policies to promote access to knowledge and
development, protect human rights, remedy abuses by right holders, and otherwise promote the public
interest.
3-Step Exemptions
Beyond the debate over how the 3-step test is read and interpreted today, there is also debate over how
effective test exemptions are at providing needed knowledge access in some areas. For example, the
reproduction and translation of works in developing countries are exempt from the test under the Berne
Appendix on Special Provisions for Developing Countries through a system of compulsory licences.
Viviana Munoz Tellez, manager of the Innovation and Access to Knowledge Programme at the South
Centre, spoke at the WTO event on whether the appendix is enough to address access needs in developing
countries today.
During her intervention, Tellez characterised the appendix as detailed, long and complex with numerous
requirements for granting a compulsory licence that can create high transaction fees. She also said the
appendix was designed for publishers in the print age and leaves many unanswered questions regarding
digital use of works.
During an interview with Intellectual Property Watch, she suggested that as the internet has opened up
access to knowledge, lawmakers have put greater focus on protecting the rights of copyright holders and
have not been as clear on defining the limitations and exceptions available to the public.
We are still experimenting with copyright rules in the digital era and we need to make sure that we give as
much attention to limitations and exceptions as we give to upgrading copyright protection, she said.
Tellez also expressed concerns over an increasing number of bilateral agreements that undermine
developing countries scope of rights. As her research has shown limited use of the Berne Appendix, she
suggested that it might be useful to revisit it and to conduct further study on if it is the right tool to address
access to knowledge needs in the digital era.
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Development In Indian IP Law: The

Copyright (Amendment) Act 2012
22/01/2013 BY INTELLECTUAL PROPERTY WATCH 7 COMMENTS

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The views expressed in this column are solely those of the authors and are not associated with
Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or
liability for the content, style or form of any posts made to this forum, which remain solely the
responsibility of their authors.

By Abhai Pandey

[Editors Note: this article has been updated by the author and published on IP-
Watch here.]

Indias Copyright Act, 1957 has been significantly amended. In May 2012, both
houses of the Indian Parliament unanimously placed their seal on the Copyright
Amendment Bill, 2012, bringing Indian copyright law into compliance with the World
Intellectual Property Organization Internet Treaties.

Leaders of the opposition in both houses and representatives from various parties
gave spirited support to the bill tabled by the government.

The Copyright Act, 1957 had been amended five times prior to 2012, once each in
the years 1983, 1984, 1992, 1994 and 1999, to meet with the national and
international requirements.

The 2012 amendments make Indian Copyright Law compliant with the Internet
Treaties the WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT).

Also, while introducing technological protection measures, the amended law ensures
that fair use survives in the digital era by providing special fair use provisions. The
amendments have made many author-friendly amendments, special provisions for
disabled, amendments facilitating access to works and other amendments to
streamline copyright administration.

This article gives a narration of the changes made by the Copyright (Amendment)
Act.

The amendments introduced through Copyright (Amendment) Act 2012 can be

categorized into:

1. Amendments to rights in artistic works, cinematograph films and sound recordings.

2. WCT and WPPT related amendment to rights
3. Author-friendly amendments on mode of Assignment and Licenses
4. Amendments facilitating Access to Works
5. Strengthening enforcement and protecting against Internet piracy
6. Reform of Copyright Board and other minor amendments

I. Rights in Artistic Works, Cinematographic Films and Sound Recordings

Section 14 relating to the exclusive rights in respect of a work has been amended.
The amendments clarify the rights in artistic works, cinematograph films and sound
recordings, by providing that the right to reproduce an artistic work, to make a copy
of a cinematograph film or embodying a sound recording now includes storing of it
in any medium by electronic or other means.

In the case of literary, dramatic and musical works, the right to reproduce already
includes storing of the work in any medium by electronic means. The present
amendment in effect only extends this inclusive language to artistic works,
cinematograph films and sound recordings.

The right to store the work is of particular importance in a digital environment due to
the special nature of transmission of digitized works over the internet where transient
copies get created at multiple locations, including over the transmitting network and
in the users computer. In a manner of speaking, it can be stated that copyright has
been extended to the right of storing of works.

It also creates liability for the internet service providers. While adding this right, the
Act also treats as fair use the transient or incidental storage and safe harbour
provisions to service providers.

The definition of the Cinematograph Film (Section 2(f)) has also been amended. The
amended definition reads: Cinematograph Film means any work of visual recording
and includes a sound recording accompanying such visual recording and
cinematograph shall be construed as including any work produced by any process
analogous to cinematography including video films.

The Amendment Act also introduces a definition of visual recording (Clause xxa) to
mean recording in any medium, by any method including the storing of it by any
electronic means, of moving images or of the representations thereof, from which
they can be perceived, reproduced or communicated by any method.

The amendments address technical issues like storing, and therefore address some
of the digital era challenges.

II. WPPT and WCT related Amendment to Rights

Commercial Rental

The obligation under Article 11 of the TRIPS Agreement, Article 7 of WCT and Article
9 of WPPT is to provide for commercial rental rights for computer programmes and
cinematograph films. This right was introduced in section 14 by using the word hire.
The term hire in sections 14(d)&(e) with regard to cinematograph film and sound
recording, respectively, is replaced with the term commercial rental. The primary
reason behind the replacement is to curtail the possibility of interpreting the term
hire to include non-commercial hire and also to keep in sync with the replacement
(1999 amendment) of the term hire to commercial rental with respect to computer
programme in section 14(b).

This amendment substitutes the word hire with commercial rental in sections 14
(b)&(c) but has deleted the words regardless of whether such copy has been sold or
given on hire on earlier occasions.

This deletion in the case of both cinematograph films and sound recordings brings in
the doctrine of first sale exhaustion to these works. It may be recalled that the
doctrine of first sale exhaustion was applicable only to the literary, dramatic and
artistic works before the amendment.

The Amendment Act 2012 has also introduced a definition of the term commercial
rental in section 2(fa) with the objective of expressly clarifying that the right is not
applicable to non-commercial activities of giving on hire including the activities of
libraries and educational institutions.

Performers Rights

The Amendment Act 2012 has introduced affirmative performers rights. Subsections
3&4 of the present section 38 have been omitted and a new section 38A has been
inserted in compliance with Articles from 6 to 10 of WPPT.

Section 38A provides for performers right as an exclusive right to do or authorize the
doing of any of the acts in respect of the performance without prejudice to the rights
conferred on authors. The proviso to the section enables performers to be entitled for
royalties in case their performances are subjected to commercial use.

This is a welcome development as earlier the performers were not entitled to

royalties because they only had a negative right to prohibit fixation of their live
performances. The negative right has now been converted to the positive rights.

Along with the above, the Amendment Act 2012 has also sought to amend the
definition of Communication to Public (Section 2 (ff)) extending the right to
performances. The rights under this head hitherto limited to authors have been
extended to performers by the present amendment.

This is consequential to the grant of new rights to performers. The right of

communication to public is essential to protect the work on the internet and such
protection hitherto available for works now extends to performances.
A new section 38B grants moral rights to performers in line with Article 5 of WPPT.
Moral rights have been extended to performers, considering the possibility of digital
alteration of performances in a digital environment. The explanation to the section
clarifies that editors are free to perform their tasks without the fear of legal
consequences.

Another significant amendment in line with Article 9 of WCT is regarding the duration
of protection of photographic works. The term of copyright in a photograph has been
made at par with other artistic works, namely, until sixty years after the death of the
author.

III. Author friendly Amendments on mode of Assignment and Licenses

Assignment of Rights

Under Section 18(1) a second proviso has been inserted. It provides that no such
assignments shall apply to any mode of exploitation that did not exist or was not
known in commercial use when the assignment was made.

This amendment strengthens the position of the author if new modes of exploitation
of the work come to exist.

Section 18(1) provides that the owner of a copyright in any work or prospective
owner of a future work may assign the copyright, and the proviso to this sub-section
clarifies that in the case of future work, assignment will come into force only when
the work comes into existence.

Another proviso under S. 18(1), inserted through Amendment Act 2012, provides that
the author of a literary or musical work incorporated in a cinematograph film or sound
recording shall not assign the right to receive royalties in any form other than as a
part of the film or sound recording.

Section 19 relates to the mode of assignment. Sub-section(3)has been amended to

provide that the assignment shall specify the other considerations besides royalty, if
any, payable to the Assignor. Therefore, it is not necessary that only monetary
compensation by way of royalty could lead to assignment.

A new sub-section(8)has been inserted making the assignment of copyright void if

contrary to the terms and conditions of the earlier assignment to a copyright society
in which the author of the work is a member. This amendment is an attempt to
streamline the business practices. Another amendment, insertion of sub-section(9),
by providing claim to royalties from the utilization of the work used to make a
cinematograph or sound recording irrespective of any assignment of the copyright in
the same, is an attempt to rationalize the business practices prevalent in the film
industry.

Section 19A relates to disputes with respect to assignment of copyright. This section
provides that on receipt of a complaint from an aggrieved party, the Copyright Board
may hold inquiry and pass orders as it may deem fit, including an order for the
recovery of any royalty payable. The second proviso is amended to provide that
pending disposal of an application for revocation of assignment, the Copyright Board
may pass any order as it deems fit regarding implementation of the terms and
conditions of assignment.

IV. Amendments to Facilitate Access to Works

Grant of Compulsory Licenses

Grant of Statutory Licenses
Administration of Copyright Societies
Fair Use Provisions
Access to copyrighted works by the Disabled
Relinquishment of copyright
Compulsory Licenses

Section 31 deals with compulsory licenses of works withheld from public. The
amendment amplifies the applicability of this section from Indian work to any work.
The word complainant is also replaced with the words such person or persons who,
in the opinion of the Copyright Board is or are qualified to do so. In continuum, sub-
section (2) is omitted so as to enable the Copyright Board to grant compulsory
license to more than one person.

By virtue of the above amendment, compulsory licenses can be obtained for any
work withheld from the public and not just Indian works and the license can be
granted to such persons as the Board may decide.

Section 31A relates to compulsory licenses in unpublished Indian works. This has
been amended to allow compulsory licenses to any unpublished work or any work
published or communicated to the public where the work is withheld from the public
in India and in cases where the author is dead or unknown or the owner cannot be
traced.

Special provisions have been provided for compulsory licensing of the works for the
disabled by inserting Section 31B.

Statutory Licenses
A new Section 31C provides for statutory license to any person desiring to make a
cover version of a sound recording in respect of any literary, dramatic or musical
work. The amendment provides that the person making the sound recording shall
give to the owner prior notice of his intention in the prescribed manner, provide the
copies of all covers or labels with which the version is supposed to be sold, and pay
in advance the royalty at the rate fixed by the Copyright Board. Such sound
recordings can be made only after the expiration of 5 years after publication of the
original sound recording. There is a requirement of payment of a minimum royalty for
50,000 copies of the work during each calendar year.

This is not totally a new provision for statutory license for cover version as it is, but a
replacement of Section 52(1)(j) as it stood before the amendment.

A new section 31D providing for statutory license for broadcasters has been brought
to facilitate access to the works for the broadcasting industry. At present the access
to copyrighted works was dependent upon voluntary licensing. The amendment
provides that any broadcasting organization desiring to broadcast a work including
sound recording may do so by giving prior notice to the right holders and pay royalty
as fixed by the Copyright Board in advance. The names of the authors and principal
performers shall be announced during the broadcast. The broadcasting organization
shall maintain records of the broadcast, books of account and render to the owner
such records and books of account.

Administration of Copyright Societies

Sections 33, 34 and 35 relate to the registration and functioning of a copyright

society. These have been amended to streamline the functioning of the copyright
societies.

All copyright societies will have to register afresh with the registration granted for a
period of five years. Renewal is subject to the continued collective control of the
copyright society being shared with the authors of works in their capacity as owners
of copyright or of the right to receive royalty.

There are specific amendments to protect the interests of the authors. In Section 35,
the phrase owners of rights has been substituted with authors and other owners of
right. The section has been amended to provide that every copyright society shall
have a governing body with such number of persons elected from among the
members of the society consisting of equal number of authors and owners of work
for the purpose of the administration of the society. Section 35(4) provides that all
members of a copyright society shall enjoy equal membership rights and there shall
be no discrimination between authors and owners of rights in the distribution of
royalties.

Fair Use Provisions

Section 52 enumerates fair use clauses, acts that will not be infringement of
copyright. Certain amendments have been made to extend these provisions in the
general context.

The existing clause (1)(a) has been amended to provide fair dealing with any work,
not being a computer programme, for the purposes of private and personal use. With
this amendment, the fair use provision has been extended to cinematograph and
musical works.

Fair use in the above lines has been extended by amendment to bring in the word
any work to reproduction in the course of judicial proceedings; reproduction or
publication of any work prepared by secretariat of a legislature; in certified copies
supplied as per law.

A new clause 52(1)(w) provides that the making of a three dimensional object from a
two dimensional work, such as a technical drawing for industrial application of any
purely functional part of a useful device shall not constitute infringement. This
provision should help reverse engineering of mechanical devices.

A new clause 52(zc) has been introduced to provide that importation of literary or
artistic works such as labels, company logos or promotional or explanatory material
that is incidental to products or goods being imported shall not constitute
infringement. This clause supports the parallel import provision embedded in the
Trade Marks Act, 1999.

Clauses (zb) and (zc) provide for fair dealing in the use of disabled persons.

Fair use provisions have been extended to the digital environment. Any transient and
incidental storage of any work through the process of caching has been provided
exceptions as per the international practice. Any deliberate storing of such works and
unauthorized reproduction and distribution of such works is an infringement under
Section 51 attracting civil and criminal liability. Exceptions under this section have
been extended to education and research purposes, as works are available in digital
formats and in the internet. The scope of these provisions ensures that introduction
of new technology will also be covered under this new section.

An explanation has been inserted to clause (1)(a) of Section 52 to clarify that storing
of any work in any electronic medium for the specified purposes, including the
incidental storage of a computer programme which in itself is not an infringing copy,
shall not be an infringement.

A new clause (b) in Section 52 seeks to provide that transient and incidental storage
of a work or performance purely in the technical process of electronic transmission or
communication to the public shall not constitute an infringement of copyright.
Similarly, clause (c) provides that transient and incidental storage of a work or
performance for the purposes of providing electronic links, access or integration,
where the right holder has not expressly prohibited such links, access or integration,
shall not constitute infringement.

To facilitate digitization of libraries a new clause (n) has been introduced to enable
the storage of a digital copy of a work if the library possesses a non-digital version of
it.

The unauthorized use of copyright work over the internet leads to suspension of the
service providers activity.

The new clause (c) of Section 52, while providing for fair use exemption for transient
or incidental storage of works, also provides for the internet service providers liability
when read with the additions of rights of storage and definition of infringement.

A proviso has been added to this clause to provide a safe harbour as per
international norms to internet service providers, as they are merely carriers of
information provided by others. This is generally referred to as notice and take down
procedure. If the person responsible for the storage of the copy has received a
written complaint from the owner of copyright in the work, that the transient or
incidental storage is an infringement, such persons responsible for the storage shall
refrain from facilitating such access for a period of twenty-one days or till he receives
an order from the competent court refraining from facilitating access. In case no such
order is received before the expiry of such period of twenty-one days, he may
continue to provide the facility of such access.

Special Provision for Access to the Disabled

1. Compulsory License for the Disabled

Section 31B provides for compulsory license in works for the benefit of the disabled.
The Copyright Board, on an application for a CL by any person working for the
benefit of persons with disability on a profit basis or for business shall dispose such
application within a period of two months from the date of receipt of application.

The CL issued must specify the means and format of publication, the period during
which the compulsory license may be exercised and the number of copies that may
be issued including the rate or royalty.

2. Fair Use Rights for the Disabled

The new clause (zb) added to section 52(1) providing for fair use of the work for the
benefit of the disabled, facilitates adaptation, reproduction, issue of copies or
communication to the public of any work in any accessible format, for persons with
disability to access works including sharing with any person with disability for private
or personal use, educational purposes or research.
These rights are available to any person or organization working for the benefit of the
persons with disabilities.

Easier relinquishment of copyright

Section 21 deals with the right of author to relinquish copyright. The amendment
facilitates relinquishment of copyright by way of public notice. Sub-section 1 now
provides relinquishment of copyright either by giving notice to the Registrar of
Copyrights or by way of public notice.

V. Strengthening Enforcement and Protecting against Internet Piracy

Strengthening of Border Measures

Section 53, dealing with importation of infringing copies, has been substituted with a
new section providing detailed border measures to strengthen enforcement of rights
by making provision to control import of infringing copies by the Customs
Department, disposal of infringing copies and presumption of authorship under civil
remedies.

Protection of Technological Measures

The new section 65A, introduced for protection of technological protection measures
(TPM) used by a copyright owner to protect his rights on the work, makes
circumvention of it a criminal offence punishable with imprisonment.

As a result, any person who circumvents an effective technological measure applied

for the protection of any of the rights, with the intention of infringing such rights, shall
be punishable with imprisonment, which may extend to two years and shall also be
liable to fine. The rationale is to prevent the possibility of high rate infringement
(digital piracy) in the digital media.

This amendment also clarifies the problem of circumvention impacting the public
interest on access to work facilitated by the copyright laws. Sub-section (2) permits
circumvention for specified uses.

Digital Rights Management Information

Section 65B has been introduced to provide protection of rights management

information, which has been defined under clause (xa) of section 2.

This amendment is intended to prevent the removal of the rights management

information without authority and distributing any work, fixed performance or
phonogram, after removal of rights management information. As a result, any
unauthorized and intentional removal or alteration of any rights management
information is a criminal offence punishable with imprisonment, which may extend to
two years and fine. The rationale of the protection emanates from the practice in the
digital world of managing the rights through online contracts governing the terms and
conditions of use.

The protection of technological measures and rights management information were

introduced in WCT and WPPT as effective measures to prevent infringement of
copyright in digital environment. The introduction of Sections 65A and 65B is
expected to help the film, music and publishing industry in fighting piracy.

VI. Reform of Copyright Board

Copyright Board

The Copyright Board during the last decade has changed significantly. Considering
the diverse nature of issues being dealt with by the Copyright Board, section 11
relating to the constitution of the Copyright Board has been amended to make it a
body consisting of a Chairman and two members. A provision has also been
introduced for payment of salaries and allowances to the members of the Board.
This reformist approach is timely, looking at the multifarious responsibilities the
Copyright Board is now called upon to discharge.

Overall the amendments introduced are forward looking. This will enable the
Copyright Act 1957 to become as one of the best copyright legislations in the world.

Abhai Pandey is an attorney-at-law with over 16 years of Corporate and Intellectual

Property Law practice in India. He has experience in advising and conducting IP
litigations and other contentious matters before various forums including District
Courts, High Courts, IP Offices and the Intellectual Property Appellate Board. He
is the lead member of the IP Litigation and Enforcement team of LexOrbis and has
led many Anti-piracy and Anti-counterfeiting campaigns.

Copyright Law In India

Last Updated: 25 June 2015
Article by Vijay Pal Dalmia, Partner
Vaish Associates Advocates

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Article by Vijay Pal Dalmia, Advocate, Supreme Court of India and Delhi High Court,
Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates,
India

Indian copyright law is at parity with the international standards as contained in TRIPS. The
(Indian) Copyright Act, 1957, pursuant to the amendments in the year 1999, fully reflects the
Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal
Copyrights Convention, to which India is a party. India is also a party to the Geneva
Convention for the Protection of Rights of Producers of Phonograms and is an active
member of the World Intellectual Property Organization (WIPO) and United Nations
Educational, Scientific and Cultural Organization ("UNESCO").

It is pertinent to mention herein that along with the (Indian) Trade Marks Act, 1999, the
protection can also be obtained under the (Indian) Copyright Act, 1957 with respect to the
artwork, layout, pattern, style, get-up and colour-combinations of packaging and labels which
are capable of being registered under the (Indian) Trade Marks Act, 1999 as a trademark.

"Work" protected in India

Under the (Indian) Copyright Act, 1957,

artistic work including a painting, a sculpture, a drawing (including a diagram, map,

chart or plan), an engraving, a photograph, a work of architecture or artistic
craftsmanship, dramatic work,

literary work (including computer programmes, tables, compilations and computer

databases),

musical work (including music as well as graphical notation),

sound recording, and

cinematograph film

are protected.

In order to keep pace with the global requirement of harmonization, the Copyright Act, 1957
has brought the copyright law in India in line with the developments in the information
technology industry, whether it is in the field of satellite broadcasting or computer software or
digital technology. The amended law has also made provisions to protect performer's rights
as envisaged in the Rome Convention.

Registration of Copyright

In India, the registration of copyright is not mandatory as the registration is treated as mere
recordal of a fact. The registration does not create or confer any new right and is not a
prerequisite for initiating action against infringement. The view has been upheld by the
Indian courts in a catena of judgments. It is important to note here that there is no prescribed
time limit within which registration of a copyright can be obtained. However, presently the
registration of a copyright may take a period of 1 to 1 years.
Need for Registration of Copyright

The awareness of Intellectual Property (IP) Laws is considerably low among the
enforcement authorities in India, and most of the IP litigation is confined to metropolitan
cities. It is to be noted that awareness of Intellectual Property (IP) Laws is considerably low
even among the enforcement authorities in India, and most of the IP litigation is confined to
metropolitan cities. It is always advisable to register the copyright as the copyright
registration certificate is accepted as a proof of ownership in a Court of law and Police
authorities, and acted upon smoothly by them.

Enforcement of Copyright in India

The law of copyright in India not only provides for civil remedies in the form of permanent
injunction, damages or accounts of profits, delivery of the infringing material for destruction
and cost of the legal proceedings. etc. but also makes instances of infringement of copyright,
a cognizable offence punishable with for a term which shall not be less than six months but
which may extend to three years with a fine which shall not be less than INR 50,000 but may
extend to INR 2,00,000. For the second and subsequent offences, there are provisions for
enhanced fine and punishment under the Copyright Act. The (Indian) Copyright Act, 1957
gives power to the police authorities to register the Complaint (First Information Report, i.e.,
FIR) and act on its own to arrest the accused, search the premises of the accused and seize
the infringing material without any intervention of the court.

Protection to Foreign Works in India

Copyright of "works" of foreign nationals, whose countries are member of Convention

Countries to which India is a signatory, are protected against any infringement of their
"works" in India through the International Copyright Order, 1999. The Indian Courts have
also been pro-active for the protection of Copyright of foreign authors/owners, which
includes software, motion pictures including screen play of motion pictures and database.

The Government of India is also taking initiative to combat piracy in the software industry,
motion pictures and the music industry along with players in the industry through their
associations and organizations like NASSCOM (National Association of Software and
Service Companies), NIAPC (National Initiative Against Piracy and Counterfeiting) etc.

Licensing and Assignment of Copyright

Copyright in any work, present or future, can only be assigned or licensed in writing by the
copyright owner or his duly authorized agent.

Duration/Term of Copyright

In the case of original literary, dramatic, musical and artistic works, the duration of copyright
is the lifetime of the author or artist, and 60 years counted from the year following the death
of the author.

In the case of cinematograph films, sound recordings, photographs, posthumous

publications, anonymous and pseudonymous publications, works of government and works
of international organizations are protected for a period of 60 years which is counted from
the year following the date of publication.
 2013, Vaish Associates, Advocates,
All rights reserved with Vaish Associates, Advocates, 10, Hailey Road, Flat No. 5-7, New
Delhi-110001, India.

The content of this article is intended to provide a general guide to the subject matter.
Specialist professional advice should be sought about your specific circumstances. The
views expressed in this article are solely of the authors of this article.