Law relating to Copyright: formula sheet

Key formulas

Meaning of copyright (section 14)

Copyright = exclusive right to do or authorise specified acts in respect of a work or any substantial part of it

The acts differ by class of work. Learn the list for each class.

Classes of works (section 13(1))

Original literary, dramatic, musical, artistic works + cinematograph films + sound recordings

Originality is stated for the first group of works.

Conditions for subsistence (section 13(2))

Published: first published in India, or Indian author if first published abroad. Unpublished: author Indian citizen or domiciled in India. Architecture: work located in India

For joint authorship, all authors must satisfy the condition. Sections 40 and 41 cases are excepted.

Bars to copyright (section 13(3))

No copyright in a film if a substantial part infringes another work; none in a sound recording if copyright in the underlying literary, dramatic or musical work was infringed in making it

Infringing material cannot earn copyright through these two routes.

Separate copyright (section 13(4))

Copyright in a film or sound recording does not affect copyright in the underlying work

A song has copyright in lyrics, music and the sound recording separately.

Architecture (section 13(5))

Copyright subsists only in artistic character and design, not in processes or methods of construction

The building method is not protected.

Term of published literary, dramatic, musical, artistic work (section 22)

Life of author + sixty years from the beginning of the calendar year next following the year of death

For joint authors, count from the death of the author who dies last.

General rule on first owner

First owner = author of the work

Section 17, subject to the Act's other provisions and the exceptions in its provisos.

Employment rule

Work made in the course of employment under a contract of service or apprenticeship → employer is first owner

Applies only where the newspaper and commissioned-work rules do not apply, and only if there is no agreement to the contrary.

Newspaper rule

Proprietor owns only the right of publication in the periodical (and reproduction for that purpose); the author owns the rest

Needs a contract of service or apprenticeship and a work made for publication in a newspaper, magazine or similar periodical.

Commissioned work rule

Photograph / painting / portrait / engraving / cinematograph film made for valuable consideration at the instance of a person → that person is first owner

Limited to these listed works. Absence of contrary agreement is required.

Assignment

Owner (or prospective owner) may assign wholly or partly, generally or with limits, for the whole term or part of it

Section 18(1). A future work's assignment takes effect only when the work comes into existence.

New media rule

Assignment does not cover a medium or mode not existing or not in commercial use at the time, unless specifically referred to

Second proviso to Section 18(1).

Revocation of assignment

No revocation order within five years from the date of assignment; the Commercial Court may revoke if the assignee fails to exercise the rights sufficiently, and the failure is not due to the assignor

Section 19A. Where the assignor is also the author, revocation needs the terms to be harsh to the assignor.

Section 30: voluntary licence

Owner (existing work) or prospective owner (future work) → licence in writing by him or his duly authorised agent

The licence can grant any interest in the right.

Future work licence

Licence takes effect only when the work comes into existence

If the licensee dies first, his legal representatives get the benefit unless the licence provides otherwise.

Section 31A: compulsory licence, unpublished or withheld works

Author dead, unknown or untraceable, or owner cannot be found → apply to Commercial Court → Registrar grants licence

The applicant must first publish the proposal in one issue of an English daily with wide circulation, and also in a daily in the translation language if a translation is sought.

Section 31B: compulsory licence for disabled

Person working for the benefit of persons with disability on a profit basis or for business → apply to Commercial Court → licence via Registrar

Applies where Section 52(1)(zb) does not apply. The Court disposes of the application within two months of receipt. The licence specifies means and format, period and number of copies, including rate or royalty.

Section 31D: statutory licence for broadcasting

Prior notice + royalty at the rate fixed by the Commercial Court

Separate royalty rates for radio and television. Authors and principal performers' names must be announced, except where the work is communicated by performance.

Sections 34 and 35: copyright society

Exclusive authorisation from author and other owners → issue licences under Section 30, collect fees, distribute after deducting expenses

Owners may withdraw authorisation, without prejudice to the society's contractual rights. Fees are distributed as far as may be in proportion to actual use of works.

Term for published works (Section 22)

Term ends = 60 years from the beginning of the calendar year after the author's death

Applies to literary, dramatic, musical or artistic works published in the author's lifetime. For joint authors, use the author who dies last.

Anonymous and pseudonymous works (Section 23)

Term ends = 60 years from the beginning of the calendar year after first publication

If the author's identity is disclosed before the period expires, the term becomes 60 years from the year after the author's death.

Author's special rights (Section 57(1))

(a) right to claim authorship; (b) right to restrain or claim damages for distortion, mutilation, modification or other act prejudicial to honour or reputation

Available independently of copyright and even after assignment. The Explanation says failure to display a work, or to display it to the author's satisfaction, is not infringement.

Who exercises the rights (Section 57(2))

Rights under Section 57(1) may be exercised by the author's legal representatives

Since the 2012 amendment, this includes the right to claim authorship.

Performer's moral rights (Section 38B)

(a) right to be identified as performer; (b) right to restrain or claim damages for distortion, mutilation or modification prejudicial to reputation

Mere editing, shortening to fit a duration, or technical modification is not prejudicial to reputation.

Statutory licence for broadcasting (Section 31D)

Prior notice + royalty fixed by the Commercial Court + announce authors/principal performers + keep records

Applies to published literary or musical works and sound recordings. Radio and television rates are fixed separately.

Civil remedies (section 55(1))

Injunction + damages + accounts + other remedies conferred by law for infringement of a right

Available to the owner of the copyright, except as otherwise provided by the Act.

Innocent infringer proviso (section 55(1))

Defendant proves: not aware AND no reasonable ground for believing copyright subsisted → only injunction + decree for whole or part of profits from sale of infringing copies

The defendant must prove both limbs. The court decides how much of the profits is reasonable. No damages in this case.

Presumption of authorship or publisher (section 55(2))

Name appearing on published copies (or on an artistic work when made) → presumed author or publisher unless contrary proved

Covers literary, dramatic, musical and artistic works, and, subject to section 13(3), cinematograph films and sound recordings.

Costs (section 55(3))

Costs of all parties = discretion of the court

Applies to all proceedings in respect of infringement of copyright.

Section 39 exceptions

(a) private use or bona fide teaching/research recording; (b) fair dealing excerpts for current events reporting or bona fide review, teaching, research; (c) acts not infringing copyright under section 52

These protect against infringement of broadcast reproduction right and performer's right.

Register of Copyrights (section 44)

Kept at the Copyright Office, in the prescribed form

May contain names or titles of works, names and addresses of authors, publishers and owners, and other prescribed particulars.

Application for entry (section 45(1))

Author / publisher / owner / other interested person → application in prescribed form + prescribed fee → Registrar of Copyrights

For artistic work usable in relation to goods or services: add a statement to that effect and a certificate from the Registrar of Trade Marks.

Registrar's action (section 45(2))

Registrar MAY, after such inquiry as he deems fit, enter the particulars

It is discretionary, not automatic.

Evidentiary value (section 48)

Register = prima facie evidence of particulars entered; certified, sealed copies admissible without further proof

This is why registration is useful. It is not a condition for copyright to exist.

Appeal against Registrar (section 72)

Final decision or order of Registrar → appeal to High Court within 3 months → single Judge → further appeal to Bench within 3 months

Time taken to obtain a certified copy is excluded. The single Judge may refer the appeal to a Bench at any stage.

Powers of civil court (section 74)

Registrar has civil court powers (CPC, 1908) for: summoning and examining on oath; discovery and production of documents; evidence on affidavits; commissions; requisitioning public records; other prescribed matters

Territorial limit for enforcing attendance of witnesses is the territory of India.

Money orders (section 75)

Order for payment of money + certificate issued by the authority → deemed decree of a civil court

Executable in the same manner as a civil court decree.

Rule-making (section 78)

Central Government makes rules by notification in the Official Gazette; rules laid before Parliament for 30 days

Rules cover forms, fees, procedure before the Registrar, the Register's form and regulation of the Copyright Office.

Section 33(1): licensing business

Licensing business in works with subsisting copyright → only under registration as a copyright society

Owner may still license his own works individually. Licensing of literary, dramatic, musical and artistic works in cinematograph films or sound recordings must be through a registered society.

Section 33(3) and (3A): registration and term

Registration by Central Government; valid 5 years; renewable

Ordinarily not more than one society for the same class of works. Renewal needs shared collective control with authors.

Section 33(4) and (5): cancellation and suspension

Cancel if managed detrimentally to authors and owners; suspend up to 1 year pending inquiry, with administrator

Cancellation follows such inquiry as may be prescribed.

Section 34: functions

Accept exclusive authorisation → issue licences → collect fees → distribute after deducting expenses

Owner can withdraw authorisation. Foreign tie-ups must not discriminate between Indian and other works.

Section 40: extension to foreign works

Order in Official Gazette → Act applies to foreign works as if Indian

Covers place of first publication, unpublished works of foreign citizens, domicile and author's citizenship. Provisos allow limits on classes, term, conditions and past works.

Section 40 proviso (i): reciprocity test

Non-treaty country → Government must be satisfied of adequate protection or undertaking

The test does not apply to a country with which India has a treaty or which is a party to a convention to which India is also a party.

Section 42: restriction

Foreign country gives inadequate protection → Government may withhold rights in works first published in India by its non-domiciled citizens

Done by Gazette order for works published after the date specified in it.

Quick revision

• Copyright protects expression of original works, not ideas.
• A licence must be in writing by the owner or his duly authorised agent.
• A licence for a future work takes effect only when the work comes into existence.
• If the licensee of a future work dies before the work exists, his legal representatives get the benefit unless the licence says otherwise.
• For works of international organisations to which the Act's section 41 applies, copyright lasts sixty years from the start of the calendar year after first publication.
• No person or association may carry on the business of granting licences except under a registration as a copyright society.
• An owner may still license his own works individually, consistent with his duties as a member of a registered society.
• Licensing business for literary, dramatic, musical and artistic works in films or sound recordings must go through a registered copyright society.
• The Central Government registers copyright societies and ordinarily registers not more than one for the same class of works.
• Registration of a copyright society is for five years and can be renewed.
• A copyright society may accept exclusive authorisation from owners, and owners may withdraw it without prejudice to the society's contractual rights.
• The Central Government may cancel registration if a society is managed against owners' interests, or suspend it for up to one year pending inquiry and appoint an administrator.

Common mistakes

• Saying copyright protects ideas, plots or methods. Fix: Write that copyright protects only the expression. Mention the idea-expression dichotomy and give a short example.
• Listing only literary, dramatic, musical and artistic works as the classes. Fix: Always list all six: four types of original works, cinematograph films and sound recordings.
• Saying the employer always owns work made by an employee. Fix: Check the newspaper rule first. For a periodical, the employer owns only publication rights. Also confirm there is a contract of service and no contrary agreement.
• Treating a freelancer as an employee. Fix: An independent contractor is not covered by the employment clause. Check whether the work falls under the commissioned-work clause. If not, the author is the first owner.
• Saying a Section 30 licence transfers ownership Fix: Write that the owner remains owner and the licensee gets only permission within the licence terms.
• Forgetting the writing requirement Fix: State that a Section 30 licence must be in writing by the owner or his duly authorised agent.
• Counting sixty years from the date of death instead of from the beginning of the next calendar year. Fix: Always say 'from the beginning of the calendar year next following the year of death'. Then protection lasts through 31 December of the year that is 60 years after the death year.
• Applying Section 22 to an anonymous work. Fix: Check for anonymity or a pseudonym first. If present, use Section 23 and count from first publication, unless identity is disclosed.
• Treating any use with credit to the author as fair dealing. Fix: Fair dealing depends on purpose and extent of use. Credit helps but does not by itself make a use fair.
• Giving full damages against an innocent infringer. Fix: If the defendant proves no awareness and no reasonable ground to believe copyright subsisted, the owner gets only an injunction and a decree for profits from sale of infringing copies, as the court deems reasonable.

Exam tips

• Begin every answer with section 14 or section 13(1), as the question needs. Examiners reward the provision first.
• Learn the section 14 acts by class of work. A table in your own notes helps, but write the answer in sentences.
• In fact-based questions, always run the idea versus expression test and the section 13(2) condition before concluding.
• Keep the copyright versus patent contrast to three points: what is protected, how it arises, and the idea-expression distinction.
• Write the term as sixty years from the beginning of the calendar year following the author's death, and mention the last-dying author for joint works.
• Learn the Section 17 provisos as a list of seven situations and attach the keyword to each: periodical, commissioned, employment, speech, Government, public undertaking, international organisation.
• Always write the phrase in the absence of any agreement to the contrary where the proviso uses it, and test the facts for such an agreement.
• Distinguish contract of service from contract for services in your analysis. It decides most employment questions.