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ECONOMIC RIGHTS

INTRODUCTION
• Rights accorded to author are generally classified
as “moral” or “economic”. Economic rights are in
general exclusive in nature, that is, the owner of
right may authorize or prohibit the doing of a
particular act. The particular rights that are
granted to copyright owners vary depending on
the type of work which is protected. In particular,
while the right of reproduction (or to make copy)
exist in relation to all types of work, the other
rights apply only to some of them.
Economic Rights of Authors under
Berne and TRIPS
• Berne Convention for the Protection of Literary and Artistic Work.
1. Article 8: Right of Translation
2. Article 9: Right of Reproduction
3. Article 11: Right of Public Performance and of Communication to the
Public of a Performance.
4. Article 11bis: broadcasting and Related Rights.
5. Article 11ter: Right of public recitation and of communication to the
public of a recitation (in literary works)
6. Article 12: Right of Adaptation, Arrangement and Other Alteration.
7. Article 14: Cinematograph and Related Rights (including the Right of
distribution)
• Agreement on Trade-Related Aspects of Intellectual Property Rights
Article 9 of the TRIPS Agreement provides that all the members of TRIPS
shall comply with Articles 1 through 21 of the Berne Convention, 1971
Reprod Issue perform commun Adaptat translati
uce/copy copies icate ion on
WORKS
• Literary, dramatic & YES YES YES YES YES YES
musical [S. 14(a)]

•Computer program YES YES YES YES YES YES


[S. 14(b)]

•Artistic work [S.14(c)] YES YES NO YES YES NO

YES YES NO YES


•Cinematograph film
[S.14(d)]

YES YES NO YES


•Sound Recording
[S.14(e)]
RIGHT OF REPRODUCTION
• The right of reproduction (copy the work) is the
oldest of all rights granted to the authors of the
copyright. In the context of the author’s economic
right, reproduction refers to the action of making
a copy, or to the copy produced by the art of
reproduction. While the right applies to all types
of works, the scope of the right varies depending
of the type of work in question. Article 9 of the
Berne Convention gives the author of literary and
artistic works the right of reproduction. TRIPS
Agreement provides Article 9 of Berne
Convention to be applied mutatis mutandis.
Messrs Macmillan & Company Ltd. V The
Little Flower Company [ AIR 1959 Mad 410]
• FACTS: the plaintiffs claim to be entitled to copyright
by assignment in respect of work “The Return of the
Native” by Thomas Hardy. The defendants published
“Guide to the study of Hardy’s Return of the Native”
• ISSUE: does the guide of the defendants published
constitute an infringement of Thomas Hardy’s novel as
containing a substantial reproduction of the novel.
• HELD: ‘substantial reproduction’ not being defined, the
Court considering both by reason of quantity and the
nature of the matter extracted, held that the defendant’s
guide contains a substantial reproduction of the
plaintiff’s work so as to constitute it an infringement.
Norowzian v Arks (No. 1) [1998] FSR
394
The court opined the following with respect to the right of
reproduction:
• There is no reproduction where a person records
content of a similar nature or style to those embodied in
the claimants reproduction.
• The reshooting of a film sequence (in which not a
single frame of the copyright film had been included)
was held not to be a copy for the purpose of 1998 act.
• Similarly, copyright in a sound recording is not
infringed where a person remakes (or ‘covers’) the
same song or records the same song performed in a
similar style
Star India(P) Ltd. V Leo Burnett (India) (P)
Ltd. [(2003) 27 PTC 81 (Bom)]
• FACTS: the plaintiffs carry on the business of acquiring copyrights in
cinematograph films, TV serials, programs etc. and also produce TV programs for
various TV channels. They are the producer of a TV serial called “KYUN KI SAAS
BHI KABHI BAHU THI”. The defendants are the producer, distributor of a
consumer product “TIDE DETERGENT”. The plaintiffs case is that the TV
commercial of the defendants product is a substantial copy of the aforesaid serial,
and hence infringement.
• ISSUE: whether the defendants commercial is a copy of the plaintiffs TV serial?
• The Court opined that to establish infringement, copying should be of the
‘substantial part’ of the plaintiff’s work. The test of substantiality must be from the
point of view of the infringing work. – substantiality is not the question of quantity
but of quality.
Secondly, the term “to make a copy” u/s.14(d)(i) means when an actual copy is made of
a film by a process of duplication i.e., by using mechanical contrivance. The making
of another film is not included u/s 14(d)(i) and such other film, even though it
resembles completely the copyrighted film, does not fall within the expression ‘to
make a copy of the film’.
Copying information already in the
public domain
(Where the copyright consists of instructions/information to do something. While
literary copyright in the instructions will be infringed if the instructions are
photocopied or are repeated in different words/language, the copyright will not be
infringed if someone follows the instructions.)
Elanco Products Ltd. & Anr. v Mandops (Agrochemical
Specialists) Ltd. &Anr.[1979 FSR 46]
FACTS: the plaintiffs claim copyright over a label and leaflet saying that it was a
compilation of information generated by themselves. They claimed they had
copyright in that compilation; that any reproduction of that compilation, whether
using the same or different language, was an infringement of that copyright. The
defendants contended that the information was in public domain, and the copyright
protected the form of expression of language and not the content of it.
HELD: As regards the first contention of the defendants the court held that there was
certainly copyright in such compilation as it involves skill and labor. Secondly, the
court referring to Scott v Stamford - “No man is entitled to avail himself of the
previous labors of another for the purpose of conveying to the public the same
information, although he may append additional information to that already
published”
Reproduction of a 2D work into a 3D or
vice-versa
In case of an artistic work, the right to reproduce includes the depiction
in 3D of a 2D work or vice-versa.
• Aubrey Max Sandman v Panasonic UK Ltd. & Anr. [1998]FSR
651
The plaintiff was the author of two circuit diagrams. He claimed that
his copyright in the diagrams was infringed by the circuits
incorporated in the defendant’s electronic audio equipment.
• Escorts Construction Equipment Ltd. Action Construction
Equipment Ltd. [(1999) 19 PTC 36 (Del) (exclusive right to
reproduce or depict in 3D)
The plaintiffs main contention was that the crane manufactured by the
defendants is a substantial reproduction in the 3D forms of the
drawings of the plaintiffs crane in which they have a copyright.
RIGHT OF DISTRIBUTION
• In case of a literary, dramatic, musical or
artistic work, or in case of a computer
program, the author of such work has
exclusive right to issue copies of the work in
public not being copies already in circulation.
The distribution right is generally accepted as
relating to the right of the author to control
dissemination of physical copies of the work.
Atlantic Recording Corporation v.
Howell [554 F.Supp.2d 976]
• The Court held that infringement of distribution right
does not occur unless the defendant has actually
distributed an unauthorized copy of the work to a
member of the public. So the defendant in this case was
not guilty of the act of distribution where the files in
question resided in his computer, but there was no proof
that copies of the files had actually transferred to the
public. The Court noted that where transfer of a copy
occurred, the defendant who makes the file available
can be guilty of contributory infringement of the
reproduction right, since it may be argued that it is the
one who access makes the copy.
Difference between “distribution” and
“publication”
London-Sire Records Inc. v Doe 1 [542 F.Supp.2d
153]: the Court stated that “distribution” and
“publication” are not synonymous. The case
included a claim for copyright infringement by
reproduction and distribution in the course of
peer-to-peer file sharing. In the context of making
available on demand, the court held that the
defendant cannot be made liable for breaching the
plaintiff’s distribution right unless a distribution
actually occurred. The Court held that s.106(3)
confers on copyright owners, the right to control
purely electronic distribution of their works.
John Wiley and Sons Inc. and others v
Prabhat Chander Kumar Jain and others [
2010 Del. HC]
• The right of the owner of the copyright to issue the copies of the work to
the public will not be circumscribed by any territorial limitation. Thus, the
owner of the copyright will have the right to issue the copies of the work
not being the copies already in circulation worldwide. Thus, the plaintiffs in
this case have the right to issue copies to the public worldwide including
but not limiting to India or any other territories.
• On the other hand the right of the exclusive licensees which will be subject
to conditions and limitations imposed by the owner of the copyright will
flow from both the Statue as well as form the covenant entered between the
parties.
• The said position of license is equally applicable in cases of computer
software. Computer software are mostly licensed and are sold and
distributed with their own conditions and limitations. The purchasers of the
said computer software either from the owner is aware of the arrangement
or license agreement that the said computer software for instance is meant
for single user or multiple usage.
RIGHT TO PROHIBIT IMPORTATION
• Exhaustion of rights: In many countries it is accepted that, within a
particular country, the author has the right to authorize the making
of his work for the purpose of sale, but that the author should have
no further right to restrict the circulation in that in that country of
that particular copy. the authors right of distribution of a copy of a
work is said to be “exhausted” as regards that particular copy when
the author has permitted the sale of that copy. the question arises as
to how far the distribution right is exhausted in one country when
the author has permitted the sale of the copy in another country. This
gives rise to the problem of “parallel imports”.
• The problem of parallel imports (or grey imports) arises where
copies of a work or other protected material are legitimately sold in
country A, then imported into country B. the question at issue is
whether the right owner in country B can prevent the import, even
where he has consented to the sale of the copies in country A.
Penguin Books Ltd. v India Book Distributors
and Others [AIR 1985 Del 29]
FACTS: The plaintiffs, by agreements, have exclusive right and license
to print, publish and market certain books. In view of these
agreements they claim that nobody else is entitled to print, publish
or market any of those titles in India except those published by the
plaintiff. It is alleged that the defendants are involved in importing
and selling certain titles of the plaintiffs.
COURT: The exclusive rights of penguin to print, publish and sell these
titles in India would extend to the exclusive right to import copies
into India for the purpose of selling or by way of trade offering or
exposing for sale the books in question.
It is an infringement of copyright knowingly to import into India for
sale or hire infringing copies of work without the consent of the
owner of copyright, though they have been made by or with the
consent of the owner of the copyright in the place where they were
made.
RIGHT TO SELL or GIVE ON HIRE
• U/S 14(d)(ii) of the Act of 1957, this right subsists regardless of whether
any such copy has been sold or given on hire on earlier occasions.
Warner Bros. Entertainment Inc. & Others v Santosh V.G
[2009 Del HC]
FACT: The plaintiffs allege that giving (a film) on hire or offering a film for
hire without the copyright owners license is an act of
infringement.[S14(d)(ii) r/w S.51]
ISSUES: (i) whether the giving on hire or rent in India, by the defendant,
copies of cinematograph films, authorized for sale or rental only in a
particular territory outside India, in which plaintiff claims copyright,
constitutes infringement u/s.51(a)(i) of the 1957 Act.
(ii) [regarding parallel import] whether the importation into India by the
defendant for giving on hire or rent in India copies of cinematograph films
authorized for sale or rental in a particular territory outside India, in which
the plaintiff claims copyright, constitutes infringement of copyright u/s
51(b) (iv) i.e. importation into India infringing copies.
RIGHT TO COMMUNICATE TO PUBLIC
The exclusive right to communicate a work to public
arises with respect to literary, dramatic, musical and
artistic works, computer programs, cinematograph film
and sound recording.
Garware Plastic and Polyester Ltd. V. Telelink (AIR
1989 Bom 331)
The question in this case was whether showing of a film
over a cable television network amounted to
communicating the film to the public.
The Court held in affirmative, that showing the films over
a video TV network, are broadcasting the film or
communicating it to a section of the public.
Video Master v. Nishi Productions
[(1998) 18 PTC 117]
• The question in this case was whether by
receiving satellite signals on dish antenna
owned by cable TV operator or private party
and by relaying signals through media of cable
to viewers plaintiffs copyright are infringed.
• The Court held that broadcasting
cinematograph through satellite does not
amount to infringement of plaintiffs copyright.
Right to Perform in Public
• Broadly performance of the work before members of
the public who are actually present at the rendition is
classed as “public performance”; whereas the use of
protected material in wireless broadcasting and cabling
is the subject of separate rights, or as different sub-sets
of the communication right (Sterling).
• However, in US performance in presence of public, and
bringing the work to the perception of public through
wireless broadcasting or cabling is covered by the same
right namely “to perform the copyrighted work
publicly” [Unites States v. American society of
Composers, Authors & Publishers, 485 F.Supp. 2d
438 (SD NY 2007)]
Right of Adaptation
• The right of adaptation refers to the author’s
right to control transformation of his work into
another type of presentation, for instance, by
changing a novel into a film script. The right of
adaptation may at times seem to overlap the
right of reproduction or the right of
translation.
Bibliography
• J.A.L. STERLING
“World Copyright Law”
Sweet and Maxwell Publications
• L. BENTLY & B. SHERMAN
“Intellectual Property Law”
3rd Edition
Oxford university Press
• N.S. GOPALAKRISHNAN & T.G. AGITHA
“Principles of Intellectual Property”
First Edition
Eastern Book Company

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