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Copyright law of India

The Copyright Act 1957 as amended governs the subject of copyright law in India.[1] The Act is applicable from 21 January 1958.[2] The history of copyright law in India can be traced back to its colonial era under the British Empire.[3] The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957.[4] The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012.[5]

India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS).[6] Initially, India was not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) but subsequently entered the treaty in 2013.

Prior to 21 January 1958, the Indian Copyright Act, 1914, was applicable in India and still applicable for works created prior to 21 January 1958, when the new Act came into force.[2] The Indian Copyright Act, 1914 was based on the Imperial Copyright Act of 1911 passed by the Parliament of the United Kingdom, but was slightly modified in terms of its application to Indian law.[7][2] According to this Act, the period of copyright for photographs was 50 years from the time it was created (Act language is: "the term for which copyright shall subsist in photographs shall be fifty years from the making of the original negative from which the photograph was directly or indirectly derived, and the person who was owner of such negative at the time when such negative was made shall be deemed to be the author of the work, and, where such owner is a body corporate, the body corporate shall be deemed for the purposes of this Act to reside within the parts of His Majesty's dominions to which this Act extends if it has established a place of business within such parts.")[8] For photographs published, before 21 January 1958 in India, the period of copyright is thus 50 years, as for them the old Act is applicable.[2][failed verification]

Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work. The scope and duration of protection provided under copyright law varies with the nature of the protected work.

In a 2016 copyright lawsuit, the Delhi High Court states that copyright is "not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public."[9]

Types of works protected

The Indian copyright law protects literary works, dramatic works, musical works, artistic works, cinematograph films and sound recordings.[10]

Freedom of panorama

This section is an excerpt from Freedom of panorama § India.[edit]
Left: The Palace of Assembly in Chandigarh, authored by Le Corbusier. It has been a UNESCO World Heritage Site since 2016. Right: Statue of Unity, the world's tallest statue, was completed in 2018 and authored by sculptor Ram V. Sutar.

Freedom of panorama is dealt with in sections 52, s–u(i) of the copyright law of India. Both (s) and (t) of section 52 applies to depictions of architecture, sculptures, and works of artistic craftsmanship through drawing, painting, engraving, and photography, while (u)(i) applies to inclusion of all types of artistic works in films. These provisions are applicable if the work is "permanently situate in a public place or any premises to which the public has access." (u)(ii) is for the incidental cinematographic inclusion of works not located in public spaces.[11]

The case The Daily Calendar Supplying v. The United Concern (1958) concerned the Daily Calendar Supplying Bureau's commercial distributions of slightly modified reproductions of an oil painting of Lord Subramania by the firm United Concern. The firm acquired artistic property rights over the painting from its artist T. M. Subramaniam, soon after the artistic work was created in 1947. The user was ordered to pay 1,000 rupees worth of copyright damage to the firm. The Madras High Court rejected the argument of the Daily Calendar Supplying in their 1964 appeal, that their act falls under Section 52(t), since the original painting was still under the artist's private custody even if free copies were already being distributed to several temples in the south. This distribution is "not tantamount to his installing his original work in a public place."[12]

The Delhi High Court is expected to hear a recent case from February 2023, concerning Acko General Insurance's exploitation of Humanity mural painted on a Mumbai building, in their advertising campaign, that prompted St+Art India Foundation and the mural author Paola Delfin Gaytan to send a legal notice urging the firm to take down both the billboard material and the social media posts of their campaign. Acko, in turn, denied copyright infringement and claimed their use is covered by freedom of panorama as the work is "permanently situated in a public place to which the public has access." The court, having said in a November 10 order that the billboard was "clearly an advertisement", will hear the case in February 2024, while ordering the firm to delete all online posts with the presence of the artwork.[13]
  • Literary
  • dramatic,
  • musical and
  • artistic works
 lifetime of the author + sixty years[14] from the beginning of the calendar year next following the year in which the author dies.
  • Anonymous and pseudonymous works
  • Cinematograph films
  • Sound records
  • Government work
  • Public undertakings
  • International Agencies
  • photographs
 until sixty years[14] from the beginning of the calendar years next following the year in which the work is first published[15]

Foreign works

Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works. The term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.[16]

The author of a work is generally considered as the first owner of the copyright under the Copyright Act 1957.[17] However, for works made in the course of an author's employment under a "contract of service" or apprenticeship, the employer is considered as the first owner of copyright, in the absence of any agreement to the contrary.[15]

The concept of joint authorship is recognised in Section. 2(z) of the Act which provides that "a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors" is a work of joint authorship. This concept has been elucidated in cases like Najma Heptulla v. Orient Longman Ltd. and Ors.

Section 19 of the Copyright Act 1957 lays down the modes of assignment of copyright in India. Assignment can only be in writing and must specify the work, the period of assignment and the territory for which assignment is made.[18] If the period of assignment is not specified in the agreement, it shall be deemed to be five years and if the territorial extent of assignment is not specified, it shall be presumed to be limited to the territories of India.[19] In a recent judgement (Pine Labs Private Limited vs Gemalto Terminals India Limited), a division bench of the Delhi High Court confirmed this position and held that in cases wherein the duration of assignment is not specified, the duration shall be deemed to be five years and the copyright shall revert to the author after five years.[20]

The Copyright Act 1957 exempts certain acts from the ambit of copyright infringement.[21] While many people tend to use the term fair use to denote copyright exceptions in India, it is a factually wrong usage. While the US and certain other countries follow the broad fair use exception, India follows a different approach towards copyright exceptions.[22] India follows a hybrid approach that allows :

  • fair dealing with any copyrighted work for certain specifically mentioned purposes[23] and
  • certain specific activities enumerated in the statute.[24]

While the fair use approach followed in the US can be applied for any kind of uses, the fair dealing approach followed in India is clearly limited towards the purposes of

  1. private or personal use, including research,[25] and education,[26]
  2. criticism or review,[27]
  3. reporting of current events and current affairs, including the reporting of a lecture delivered in public.[28]

While the term fair dealing has not been defined anywhere in the Copyright Act 1957, the concept of 'fair dealing' has been discussed in different judgments, including the decision of the Supreme Court of India in Academy of General Education v. B. Malini Mallya (2009) and the decision of the High Court of Kerala in Civic Chandran v. Ammini Amma.[29]

In September 2016, the Delhi High Court ruled in Delhi University's Rameshwari Photocopy Service shop case, which sold photocopies of chapters from academic textbooks was not infringing on their publisher's copyright, arguing that the use of copyright to "stimulate activity and progress in the arts for the intellectual enrichment of the public" outweighed its use by the publishers to maintain commercial control of their property.[9][26] However, in December 2016, the ruling was reversed and taken back to court, citing that there were "triable issues" in the case.[30]

The Copyright Act 1957 provides three kinds of remedies - administrative remedies, civil remedies and criminal remedies.[31] The administrative remedies provided under the statute include detention of the infringing goods by the customs authorities.[32] The civil remedies are provided under Chapter XII of the Copyright Act 1957 and the remedies provided include injunctions, damages and account of profits.[33] The criminal remedies are provided under Chapter XIII of the statute and the remedies provided against copyright infringement include imprisonment (up to 3 years) along with a fine (up to 200,000 Rupees).[34]

Jurisdiction [Place of Suing] Under Copyright Act, 1957 - in 2015 the jurisdiction law regarding copyright violation underwent significant change through the judgement of the Supreme Court in the 2015 case Indian Performing Rights Society Ltd. Vs. Sanjay Dalia Archived 2022-04-08 at the Wayback Machine – If cause of action has arisen wholly or in part in place where plaintiff resides or is doing business suit has to be filed at such place – Plaintiff cannot drag defendant to far off place under guise that he carries business there also. --- Interpretation of statutes – Mischief Rule – Construction that suppresses even counter mischief has to be adopted.

See also

References

  1. ^ "Introduction". Copyright Office, Government of India. Archived from the original on 2006-06-13.
  2. ^ a b c d "The Copyright Act 1957". IndianTelevision.com. Archived from the original on 22 August 2015.
  3. ^ Scaria, Arul George (2014-05-15). Piracy in the Indian Film Industry: Copyright and Cultural Consonance. Cambridge University Press. pp. 47–53. ISBN 978-1-107-06543-7.
  4. ^ Das, Law of Copyright (2021), pp. 88.
  5. ^ "India. The Copyright (Amendment) Act, 2012 (Act No. 27 of 2012)". WIPO Lex of the World Intellectual Property Organization. Archived from the original on 2019-07-25.
  6. ^ India, WIPO Lex, World Intellectual Property Organization
  7. ^ "The Indian Copyright Act, 1914" (PDF) – via World Intellectual Property Organization.
  8. ^ "Copyright Act 1911" – via The National Archives (United Kingdom).
  9. ^ a b Masnick, Mike (19 September 2016). "Indian Court Says 'Copyright Is Not An Inevitable, Divine, Or Natural Right' And Photocopying Textbooks Is Fair Use". Techdirt. Retrieved 19 September 2016.
  10. ^ Sec. 2(y) of Copyright Act 1957.
  11. ^ Intellectual Property India. "CHAPTER XI". Copyright Office. Retrieved September 18, 2024.
  12. ^ Ramakrishnan, J. "The Daily Calendar Supplying ... vs The United Concern on 16 January, 1964". Indian Kanoon. Retrieved December 27, 2021.
  13. ^ Singh, Soibam Rocky (November 26, 2023). "Delhi High Court to examine if street art is covered under copyright rules". The Hindu. Retrieved November 29, 2023.
  14. ^ a b Intellectual Property Rights. A Manual. Archived 2023-03-26 at the Wayback Machine Entrepreneurship Development and IPR unit. BITS-Pilani. 2007.
  15. ^ a b Sec. 22-29 of the Copyright Act 1957
  16. ^ "International Copyright Order, 1999" – via Copyright Office, Government of India.
  17. ^ Section 17 of the Copyright Act 1957
  18. ^ Sec.19(2) of the Copyright Act 1957
  19. ^ Sec 19(5) and 19(6) of Copyright Act 1957
  20. ^ "Pine Labs vs Gemalto Terminals" (PDF). Archived from the original (PDF) on 2012-02-01. Retrieved 2011-10-29.
  21. ^ Sec. 52 of the Copyright Act 1957
  22. ^ Rathod, Sandeep Kanak (28 May 2012). "Fair Use: Comparing US and Indian Copyright Law". Jurist. University of Pittsburgh. Archived from the original on 2022-01-29.
  23. ^ Sec. 52(1)(a) of the Copyright Act 1957
  24. ^ Secs.52(1)(aa)to(zc) of the Copyright Act 1957
  25. ^ Sec. 52(1)(a)(i) of the Copyright Act 1957
  26. ^ a b Singh, Rocky Soibam (16 September 2016). "Publishers lose copyright case against DU's photocopy shop". Hindustan Times. Retrieved 19 September 2016.
  27. ^ Sec. 52(1)(a)(ii) of the Copyright Act 1957
  28. ^ Sec. 52(1)(a)(iii) of the Copyright Act 1957
  29. ^ Gopalakrishnan, N. S.; Agitha, T. G. (2014). Principles of Intellectual Property. Eastern Book Company. pp. 369–393. ISBN 978-81-7012-157-2.
  30. ^ Jain, Akanksha (2016-12-09). "DU photocopy case: court restores copyright suit by publishers for trial". The Hindu. ISSN 0971-751X. Retrieved 2022-01-29.
  31. ^ Copyright Act 1957
  32. ^ Sec. 53 of the Copyright Act 1957
  33. ^ Sec. 55 of Copyright Act 1957
  34. ^ Secs. 63 and 63A of the Copyright Act 1957

Bibliography

  • Das, Jatindra Kumar (2021). Law of Copyright. PHI Learning Pvt. Ltd. ISBN 978-81-948002-1-7.
  • The Copyright Act, 1957

Further reading

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