COPYRIGHT
FOR ATLAS SKILLTECH
JOYEETA BANERJEE
MBA(IB),LLM,B.E.(Mechanical), LL.B., PGDADR, PGDCL, PGDML, PGDPL,
PGDHRL
Registered Patent Attorney, Advocate & Legal Consultant
M : 9810828314 Email: contact@joyeetabanerjee.com
www.rajdeepandjoyeeta.com
COPYRIGHT
Bundle of rights including-
Rights of reproduction
Communication to the public
Adaptation
Translation of the work
To create atmosphere conducive to creativity
COPYRIGHT SUBSISTS IN
Copyright to subsist in -
original literary, dramatic, musical and
artistic works
cinematograph films
sound recordings
Work –
literary, dramatic, musical or artistic work
cinematograph film
sound recording
Literary work -
includes computer programmes, tables and compilations including computer data
bases
Dramatic work –
any piece for recitation, choreographic work, entertainment in dumb show
the scenic arrangement or acting form of which is fixed in writing or otherwise
but does not include a cinematograph film
Musical work –
a work consisting of music and includes any graphical notation of such work
but does not include any words or any action intended to be sung, spoken or
performed with the music
Artistic work –
Painting , Sculpture
drawing (including a diagram, map, chart or plan), an engraving or a photograph,
whether or not any such work possesses artistic quality
work of architecture
any other work of artistic craftsmanship
Cinematograph film -
any work of visual recording on any medium produced through a process
from which a moving image may be produced by any means 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
Sound recording –
A recording of sounds from which such sounds may be produced
regardless
of the medium on which such recording is made or the method by which
the sounds are produced
MEANING OF COPYRIGHT
Copyright - Exclusive right to do or authorise the doing of any of the
following acts in respect of a work / any substantial part thereof,
namely:-
In the case of –
a literary, dramatic or musical work, not being a computer
programme, -
reproduce the work in any material form including the storing of
it in any medium by electronic means
to issue copies of the work to the public not being copies
already in circulation
to perform the work in public, or communicate it to the public
to make any cinematograph film or sound recording in respect
of the work
to make any translation of the work
to make any adaptation of the work
computer programme,-
to sell or give on commercial rental or offer for sale or for commercial
rental any copy of the computer programme
Artistic work-
to reproduce the work in any material form including-
the storing of it in any medium by electronic or other means
depiction in 3 dimensions of a two-dimensional work
depiction in two-dimensions of a three-dimensional work
to communicate the work to the public
to issue copies of the work to the public not being copies
already in circulation
to include the work in any cinematograph film
to make any adaptation of the work
cinematograph film, -
to make a copy of the film, including-
a photograph of any image forming pan thereof
storing of it in any medium by electronic or other means
to sell or give on commercial rental or offer for sale or for such rental, any
copy of the film
to communicate the film to the public;
sound recording –
to make any other sound recording embodying it including storing of it in any
medium by electronic or other means
to sell or give on commercial rental or offer for sale or for such rental, any
copy of the sound recording
to communicate the sound recording to the public.
14. Meaning of Copyright
‘copyright’ means the exclusive right subject to the
provisions of this Act, to do / authorise the doing of
any of the following acts in respect of a work or any
substantial part thereof, namely:--
(a) in the case of a literary, dramatic or musical work, not
being a computer programme,--
(i) to reproduce the work in any material form including the
storing of it in any medium by electronic means
So – violation of the right ie online storage – is
infringement
May include depiction by laser techniques
AUTHOR
Author –
Literary / dramatic work - Author
Musical work – Composer - means the person who
composes the music regardless of whether he records it
in any form of graphical notation
Artistic work other than a photograph – Artist
Photograph - person taking the photograph
Cinematograph / sound recording - Producer - means a
person who takes the initiative and responsibility for
making the work
Any computer-generated literary, dramatic, musical or
artistic work - the person who causes the work to be
created
FIRST OWNER OF
COPYRIGHT
Author of a work shall be the first owner of the copyright
therein
Proviso - in the absence of any agreement to the contrary
literary, dramatic or artistic work - if in the course of his employment - under a
contract of service or apprenticeship - for the purpose of publication – proprietor
photograph taken, or a painting or portrait drawn, or an engraving or a
cinematograph film made - for valuable consideration at the instance of any person
- such person
Author’s employment under a contract of service or apprenticeship – employer
address or speech delivered in public - the person who has delivered – if on behalf
of any other person, such other person
Government work – Government
work made or first published by or under the direction or control of any public
undertaking - such public undertaking
International organisation concerned
INFRINGEMENT
Deemed to be infringed-
when any person, without a licence –
does anything, the exclusive right to do which is with the owner
of the copyright, or
permits for profit any place to be used for the communication of
the work to the public where such communication constitutes
an infringement of the copyright in the work
unless he was not aware and had no reasonable ground for
believing that such communication to the public would be an
infringement of copyright
When any person-
- makes for sale / hire, or
- sells / lets for hire, or
- by way of trade displays / offers for sale or hire
distributes either for the purpose of trade or to such an extent as to
affect prejudicially the owner of the copyright
by way of trade exhibits in public
imports into India, any infringing copies of the work
Explanation - Reproduction of a literary, dramatic, musical or artistic
work in the form of a cinematograph film - deemed to be an ‘infringing
copy’
INFRINGING COPY
‘infringing copy’ means--
in relation to a literary, dramatic, musical or artistic work - a
reproduction thereof - otherwise than in the form of a
cinematographic film
in relation to a cinematographic film - a copy of the film - made on
any medium by any means
in relation to a sound recording - any other recording - embodying
the same sound recording, made by any means
in relation to a programe /performance in which such a broadcast
reproduction right / a performer's right subsists - the sound recording /
a cinematographic film of such programe /performance - if such
reproduction/ copy / sound recording is made / imported in
contravention of the provisions of this Act
Certain acts –not
infringement – s 52
Fair dealing -
private or personal use, including research;
criticism or review, whether of that work or of any other work;
reporting of current events and current affairs, including the reporting of a lecture
delivered in public
Back up copies
Reproduction of report of any committee/commission
Judgment of court/tribunal
Act of legislature with some original commentary
Publications in official gazette
ASSIGNMENT
Assignment either–
wholly / partially
generally / subject to limitations
for the whole term / any part thereof
Assignment – to be -
In writing - signed by the assignor / his duly authorised agent.
identify the specific works
specify the rights assigned
Duration – If not stated - deemed 5 years from the date of assignment
Territorial extent – If not stated - presumed to extend to whole of India
Amount of royalty payable
subject to revision, extension or termination on terms mutually agreed upon by
the parties.
Lapse automatically – if assignee does not exercise the rights assigned to him
within a period of one year from the date of assignment
JOINT AUTHORSHIP
Najma Heptulla v. M/s. Orient Longman Ltd. [AIR 1989 Delhi 63]
Book ‘India Wins Freedom’ – who is the real author?
Azad dictated and gave certain notes in Urdu– Prof. Kabir wrote the manuscript
in English
The material for the book was supplied by Maulana Azad with a clear
understanding that Prof. Kabir will describe those thoughts and conversation and
write the same in English language
Delhi HC – held that literary work consist of subject matter which is expressesd
in language and written down – both are important
Surely – intention of copyright Act cannot be to give status of an author only to a
person in whose language literary piece is written while completely ignoring the
person who contributed entire material which enabled to show his mastery over
the language
Active and close intellectual collaboration and co-operation between Maulana
Azad and Prof. Humayun Kabir – even preface shows Azad read every word of
manuscript and made alterations, additions, ommissions and corrections
Intellectual contribution by two or more persons pursuant to preconcerted joint
design to composition of literary work - Joint authors
2018 (76) PTC 4[SC]
Diyora and Bhanderi Corporation through its partner
& Ors. vs. Sarine Technologies Ltd.
Decided on 30.07.2018
Respondent had Copyright in Advisor software both in Israel as well as in USA;
that it had secured registration in USA in the 6th version of its Advisor software;
that as per International Copyright Order, 1999 this right also extended to India,
being a Member Country under the Berne Copyright Union in like manner as if it
was published in India and that the petitioners had infringed the copyright of
the Plaintiff over Advisor software. The software, using a three dimensional
representation helps in analyzing how best a raw precious stone can be cut and
polished so that best quality diamonds and precious stones could finally emerge
and thus helps in deriving maximum advantage.
Trial court was restricted comparison of the source code and object code in
respect of the registered version of the plaintiff - Order was never challenged by
the plaintiff - There was no occasion or reason for the plaintiff to seek expansion
of the scope - Trial court was in error in expanding the scope of the order by its
order - Comparison is restricted to source code to object code in respect of
registered version of the plaintiff - Expenditure of to and fro passage of the
expert would be reimbursed by the defendants to the plaintiff in case the
challenge were to fail
R G. Anand v. M/s. Delux Films
and ors.
[AIR 1978 SC 1613]
The defendants averred that there could be no copyright
so far as the subject of provincialism is concerned which
can be used or adopted by anybody in his own way. The
motion picture was quite different from the play 'Hum
Hindustani' both in content, spirit and climax. The mere
fact that there were some similarities between the film
and the play could be explained by the fact that the idea,
viz., provincialism was the common source of the play as
also of the fim
The fundamental idea of violation of copyright of
imitation is the violation of the Eighth Commandment:
"Thou shalt not steal" which forms the moral basis of the
protective provisions of the Copyright Act of 1911. It is
obvious that when a writer or a dramatist produces a
drama it is a result of his great labour, energy, time and
ability and if any other person is allowed to appropriate
the labours of the copyrighted work, his act amounts to
theft by depriving the original owner of the copyright of
the product of his labour.
DONOGHUE V. ALLIED
NEWSPAPERS, LIMITED
[(1937)3AllER503]
Farrwell J. - There is no copyright in an idea / in ideas.
A person may have a brilliant idea for a story, or for a picture, or
for a play, and one which appears to him to be original; but if he
communicates that idea to an author or an artist or a
playwright, the production which is the result of the
communication of the idea to the author or the artist or the
playwright is the copyright of the person who has clothed the
idea in form, whether by means of a picture, a play, or a book,
and the owner of the idea has no rights in that product.
Sivaji Productions v. Symphony Home Videos
Madras High Court
Pirated VCDs and DVDs of a film "Aasal" were being sold
commercially. On the cover of the DVDs, the name of the plaintiff
appeared along with that of the defendant. The defendant spelt
the name of the move in English as "Asal" instead of "Aasal" that
was produced by the plaintiff.
On the reverse of the cover, the words "Copyright Owned,
Manufactured and Marketed by SYMPHONY Home Video“ were
printed. It was also falsely stated that under Section 52(a) of the
Copyright Act, the defendant has obtained necessary "copyright
works" for making the DVD film.
The suit was decreed for a permanent injunction restraining the
defendant from in any manner infringing the copyright of the
plaintiff viz., Indian VCD and/ or DVD rights, over the Tamil feature
film "Aasal", in any manner whatsoever , and
Mandatory Injunction directing the defendant to deliver and
handover to the plaintiff all the infringing VCDs and DVDs.
Foundry Visionmongers Ltd. v.
Ankur Sudhir Sachdev and Ors.
2016(65)PTC388(Bom)
The Plaintiff carried on business of sale and distribution of its software
programmes known as "NUKE" and "NUKEX“ which was a flagship
software programme for rendering visual effects.
The grievance of the Plaintiff is that the Defendants, who hold two
licences for software programmes "NUKE" and "NUKEX" from the
Plaintiff, have been unauthorisedly using the software on about 35
machines.
The Plaintiff appointed private investigators for investigating the piracy
of the Plaintiff's software programmes and determining the scope of
the impugned unauthorised activities of the Defendants.
Plaintiff claimed that if the Court were to give notice to the Defendants
before passing an ad-interim order, the Defendants are likely to
uninstall or remove the infringing versions of the software from their
machines, thereby suppressing and tampering the evidence of actual
usage of the Plaintiffs software and frustrating a substantial purpose of
the present notice of motion. The Plaintiff submits that this is a fit case
for an ex-parte order against the Defendants, particularly with a view
to carry out search and seizure operations at their premises.
The Court held that since the Plaintiff has made out a prima facie case
and it is imperative that an exparte order of inventory be passed.
Bharat Matrimony. Com. P., Ltd.,
Chennai v. People Interactive (I)
Pvt. Ltd., Chennai , AIR 2009
MADRAS 78
Computer system created by applicant by using IVR
(Interactive Voice Responses) to cater needs of
matrimonial alliance seekers - Same services
provided by respondent matrimonial with identical
feature
IVR being a very common system broadly used by
Corporative Sectors and Banking Industries -
cannot be monopolized - creating a new computer
system by using IVR is only an idea - cannot be said
to be a unique innovation and idea or concept of
such computer programmes cannot be copyrighted
Respondent matrimonial com being a website
bound to use such a common system like other
corporate sectors - No originality was established.
No copyright
Microsoft Corporation & Anr.
v. Pradeep Khanna & Ors.,
Delhi High Court, 2009
Suits have been filed by Microsoft Corporation against four
different defendants alleging violation of the copyright on the
ground of suspicion that the defendants were using
pirated/illegally-copied software of the plaintiffs at their
offices/work place. The suspicion is based on the investigation
done by an alleged independent "investigator" engaged by
the plaintiffs, who through telephonic conversation with the
employees of the defendants estimated the number of
computers that may be installed at the office/work place of
the defendants and thereafter matching the number of
licenses of the software of the plaintiffs lawfully procured by
the defendants. The plaintiffs also visited websites of the
defendants to know the nature of work being done by them
and the kind of software being used by the defendants and
the claims being made by the defendants. On the basis of
website information and the database maintained by the
plaintiffs regarding sale of its licensed software and the
assessment made by the investigator of the number of
computers installed, the plaintiffs suspected that there was
every probability of the defendants using pirated software of
the plaintiffs committing infringement of copyright of the
plaintiffs.
The High Court observed that in all those cases
where there is a suspicion of use of pirated
software or data, there is no necessity of sealing
or seizing the defendants CPUs, computers, etc.
The orders of sealing and seizing and then keeping
them sealed till the disposal of the case is being
misused by the plaintiffs for black mailing the
defendants.
Today the technology has advanced to an extent
and a mirror image of the hard disc can be
obtained and preserved. The mirror images so
obtained would contain all the data being used on
computer systems.
