UNIT-2 INTELLECTUAL PROPERTY LAW

UNIT-2

Table of Contents

The Copyright Act, 1970 of India provides certain rights to broadcasting authorities, which are specifically designed to protect the interests of entities engaged in the broadcasting of works (like radio and television broadcasters). These rights are primarily focused on the protection of the content they broadcast, as well as the prevention of unauthorized use of such content.

The rights of broadcasting authorities are primarily governed under Section 37 of the Copyright Act, 1970. Below is a detailed explanation with reference to relevant sections of the Act.

1. Definition of Broadcasting under the Act

Under the Copyright Act, 1970, “broadcast” is defined as the transmission of any work by means of wireless or wire communication, which includes television or radio transmission.

  • Section 2(m) of the Act defines “broadcast” as any communication to the public by any means of broadcasting, including radio and television.
  • The term “broadcasting” under the Act includes any transmission to the public of sound, images, or both, and may involve both live broadcasts and recorded content.

2. Rights of Broadcasting Authorities under Section 37

Section 37 of the Copyright Act, 1970 specifically addresses the rights of broadcasting authorities. The section provides the broadcasting authorities with certain exclusive rights over the broadcasts they make.

  • Exclusive Rights of Broadcasting Authorities:
    According to Section 37, broadcasting authorities have the exclusive right to:
  • Rebroadcast: A broadcasting authority has the right to rebroadcast a work, which means that no one else can broadcast the same content without permission. This includes both sound and visual works.
  • Record their Broadcasts: Broadcasting authorities have the right to make a recording of their broadcasted content, which is a form of protection for their original work.
  • Communication to the Public: They have the right to communicate their broadcasts to the public. This ensures that no one can transmit their broadcasts without permission, including over different platforms or media.
  • Duration of Rights:
    The rights granted to broadcasting authorities under Section 37 last for 25 years from the date of the first broadcast. This means that the content produced by a broadcasting authority is protected from unauthorized use for 25 years, after which the rights expire and the content enters the public domain.

3. Protection Against Unauthorized Use

Broadcasting authorities are provided with protection against unauthorized use of their broadcasts, including the following:

  • Reproduction of Broadcasts:
  • Section 37(2) protects broadcasting authorities from having their broadcasts reproduced without consent. Unauthorized copying or recording of a broadcast is prohibited.
  • It also provides broadcasting authorities the exclusive right to authorize or prohibit the rebroadcasting or public communication of their content.
  • Right to Prevent Infringement:
  • Under Section 37(3), broadcasting authorities have the right to take legal action against any individual or organization that infringes upon their exclusive rights. This includes unauthorized recording or rebroadcasting.

The Copyright Act, 1970 also distinguishes between the rights of broadcasting authorities and the copyright owners of the underlying works (such as music, films, or literary works) broadcasted by the broadcasting authorities.

  • Section 37(1) indicates that the broadcasting authority does not acquire any copyright over the works they broadcast unless they are the author of the work or have obtained permission from the copyright holder. Therefore, the broadcasting authority has exclusive rights over their broadcast of the work, but this does not extend to the underlying works unless specified.
  • For instance, if a broadcaster transmits a copyrighted film, they are not given any rights to the underlying film copyright. Instead, they are merely granted the right to broadcast and communicate that film to the public under the terms of the license obtained from the copyright owner.

5. Licenses and Rights Transfers

  • Section 37(4) gives broadcasting authorities the ability to license or assign their rights. For example, they can license the rights to record, rebroadcast, or adapt their broadcasts to other entities.
  • Section 37(5) allows broadcasters to authorize the making of reproductions of their broadcasts for specific uses, such as for educational or archival purposes, subject to certain restrictions.

6. Infringement and Remedies

In case of an infringement of their rights, broadcasting authorities are entitled to seek remedies under the Copyright Act, 1970, including:

  • Injunctions: To prevent further infringement.
  • Damages or Accounts of Profit: To seek compensation for the unauthorized use of their broadcasts.
  • Criminal Penalties: In serious cases of infringement, criminal action may be pursued, including penalties under Section 63 of the Act for piracy and unauthorized use of copyrighted works.

Conclusion

In summary, broadcasting authorities under the Copyright Act, 1970 are granted exclusive rights over their broadcasts, which include the rights to rebroadcast, record, and communicate their broadcasts to the public. These rights are distinct from the copyright on the underlying works, but they offer significant protection for broadcasters against unauthorized reproduction or transmission of their broadcasts. The duration of these rights is 25 years, and they can be enforced through legal remedies such as injunctions, damages, and criminal penalties.

Copyright is a legal right granted to the creator of an original work, such as literary, artistic, musical, dramatic, or other intellectual creations, to exclusively control its use and distribution. It protects the creator’s work from unauthorized use by others, thereby granting the creator the right to reproduce, distribute, and publicly perform or display their work. Copyright is a form of intellectual property law aimed at fostering creativity by providing creators with exclusive rights to their works for a specified period.

In India, copyright is governed by the Copyright Act, 1970, which was amended several times to keep pace with the changing nature of technology and international obligations. The Act provides protection to various types of creative works like books, movies, music, paintings, software, and more.

The Copyright Act, 1970 grants the copyright owner certain economic rights over their work. These rights allow the creator to exploit their work for financial gain. Economic rights primarily involve the ability to control the reproduction, distribution, and public communication of the work.

The economic rights of a copyright owner are primarily outlined in Section 14 of the Copyright Act, 1970. These rights can be summarized as follows:

1. Right to Reproduce the Work (Section 14(a))

  • Definition: The copyright owner has the exclusive right to reproduce their work by any means. This includes making copies of the work, whether it is by printing, recording, or any other form of reproduction.
  • Example: If a writer creates a book, they have the exclusive right to print and sell copies of that book.
  • Economic Impact: Reproduction rights allow the copyright owner to control the number of copies that can be made, thus enabling them to monetize their work by selling or licensing it to others.

2. Right to Issue Copies of the Work to the Public (Section 14(b))

  • Definition: The copyright owner has the exclusive right to distribute copies of their work to the public. This includes selling, renting, or lending the work to the public.
  • Example: A musician holds the copyright to their music album and can sell or distribute the album in physical or digital formats.
  • Economic Impact: This right allows the copyright owner to generate revenue by making their work available to the public through various distribution channels.

3. Right to Perform the Work in Public (Section 14(c))

  • Definition: The copyright owner has the exclusive right to perform their work in public, including dramatic, musical, or literary works. This includes both live performances and performances by means of recording (e.g., playing a song on the radio or in a concert).
  • Example: A playwright has the exclusive right to stage a play, and a musician has the right to perform their music in concerts or events.
  • Economic Impact: This right allows the creator to earn revenue through performances, such as through ticket sales or performance royalties.

4. Right to Broadcast or Communicate the Work to the Public (Section 14(d))

  • Definition: The copyright owner has the exclusive right to broadcast their work, or communicate it to the public by any means, including radio, television, or internet streaming.
  • Example: A filmmaker has the right to broadcast a movie on TV or online streaming platforms like Netflix or Amazon Prime.
  • Economic Impact: This right provides the copyright holder with the ability to license their work to broadcasting entities or streaming platforms, generating revenue.

5. Right to Make Adaptations of the Work (Section 14(e))

  • Definition: The copyright owner has the exclusive right to make adaptations or translations of their work. This includes changing the form or medium of the original work (e.g., turning a book into a movie or translating a play into another language).
  • Example: An author has the right to adapt their novel into a screenplay for a film.
  • Economic Impact: This right enables the copyright owner to generate revenue by licensing their work for adaptations or translations, opening up new markets for their work.

6. Right to Fix the Work (Section 14(f))

  • Definition: The copyright owner has the right to fix their work in a tangible medium, such as recording their music on a CD or preserving a digital file of their artwork.
  • Example: A painter can fix their artwork by photographing or scanning it for reproduction purposes.
  • Economic Impact: The fixing right helps the creator to maintain control over the physical manifestation of their work and its distribution.

7. Right to Commercialize the Work (Section 14(g))

  • Definition: The copyright owner has the exclusive right to use their work commercially, including the right to license or sell it to others for monetary benefits.
  • Example: A photographer can license their image for use in advertising or sell it to a stock photo agency.
  • Economic Impact: This right is crucial for creators to monetize their work, whether through direct sales or licensing agreements, and to generate passive income through royalties.

Duration of Economic Rights

  • The duration of economic rights varies depending on the type of work. For most works, the copyright lasts for the lifetime of the creator plus 60 years after their death. In the case of anonymous or pseudonymous works, the copyright lasts for 60 years from the date of publication.
  • For cinematograph films, sound recordings, and works made for hire, the duration of copyright protection is 60 years from the date of publication.

Limitations and Exceptions to Economic Rights

While the economic rights of the copyright owner are extensive, they are not absolute. The Copyright Act, 1970 includes certain limitations and exceptions under Section 52, such as fair use for research, criticism, review, and educational purposes, which allow others to use copyrighted material without permission in specific contexts.

Conclusion

The economic rights under the Copyright Act, 1970 empower the copyright holder to control the use and distribution of their creative works, providing them with the opportunity to earn revenue from their creations. These rights play a crucial role in incentivizing creativity and innovation by ensuring that creators can profit from their works. At the same time, the Act balances these rights with exceptions to encourage broader societal access to knowledge and culture.

Copyright is a legal protection granted to the creators of original works of authorship, such as literary, artistic, musical, dramatic, and other creative works. It grants the creator the exclusive rights to reproduce, distribute, perform, and display the work, and to control its use by others for a limited period. The main objective of copyright is to incentivize creativity by allowing creators to benefit financially from their creations while promoting the public dissemination of culture, knowledge, and ideas.

In India, copyright is governed by the Copyright Act, 1970, which has undergone amendments to align with international standards, including India’s obligations under various international treaties like the Berne Convention and TRIPS Agreement.

The subject matter of copyright refers to the types of works that can be protected under copyright law. Section 13 of the Copyright Act, 1970, provides an exhaustive list of works that are eligible for copyright protection. These works must meet certain criteria of originality and must be fixed in a tangible form.

1. Literary Works (Section 13(1)(a))

Definition: Literary works include written works in any form, such as books, articles, poems, computer programs, and software.

Key Points:

  • Literary works include not only books but also works like newspapers, magazines, journals, reports, scripts, etc.
  • The work must be an original creation and fixed in a tangible medium (e.g., written or typed on paper or stored digitally).

Case Law:

  • R.G. Anand vs. M/s Delux Films (AIR 1978 SC 1613): The Supreme Court held that the plot, story, and characters in a literary work are protected by copyright if they are original and not a mere copy of another work.

2. Dramatic Works (Section 13(1)(b))

Definition: Dramatic works include any work consisting of a scenario, script, or any written form intended to be performed. This also includes plays, dance works, and choreographic compositions.

Key Points:

  • The copyright in a dramatic work protects the written script, but not the performance or the idea itself.
  • The choreography of a dance performance can be copyrighted if it is original and fixed in a tangible medium.

Case Law:

  • Indian Performing Rights Society vs. Eastern India Motion Picture Association (AIR 1977 SC 1443): The case clarified that the copyright in a dramatic work includes the right to control the public performance of the work, including adaptations.

3. Musical Works (Section 13(1)(c))

Definition: Musical works refer to original compositions of music, with or without lyrics. The work can be in any form, such as notation, sound recording, or performance.

Key Points:

  • The musical work itself is protected by copyright, including the melody, harmony, and arrangement.
  • Musical works can also include the accompanying lyrics, which may be considered a literary work under the law.

Case Law:

  • Gramophone Company of India Ltd. vs. Super Cassette Industries Ltd. (AIR 1984 SC 667): This case emphasized that musical works are protected as a distinct category, and the unauthorized recording or use of a musical work without permission constitutes an infringement.

4. Artistic Works (Section 13(1)(d))

Definition: Artistic works include works of visual art, such as paintings, drawings, sculptures, photographs, and architectural works.

Key Points:

  • An artistic work must be original and must be fixed in a tangible form, such as on a canvas, a sculpture, or a photograph.
  • The design of any artistic creation, whether functional or decorative, is protected by copyright.

Case Law:

  • D. C. Sharma vs. The M. P. High Court (AIR 1999 MP 179): The court held that photographs, including digital photography, are protected as artistic works under copyright law.

5. Cinematograph Films (Section 13(1)(e))

Definition: Cinematograph films include works that are recorded on film or any similar medium for showing on a screen. This includes movies, TV shows, documentaries, and other audiovisual content.

Key Points:

  • Copyright in a cinematograph film covers the rights to the film as a whole, including the story, music, sound recordings, and screenplay, among other things.
  • The producer of a film is generally considered the copyright owner, although the creators of the individual elements (like the director or screenwriter) may hold partial rights.

Case Law:

  • K. A. Abbas vs. Union of India (AIR 1971 SC 481): The Supreme Court held that cinematograph films, being audiovisual works, are protected by copyright law. The court also discussed the notion of “freedom of speech” and how it is limited when it comes to creative works like films.

6. Sound Recordings (Section 13(1)(c))

Definition: Sound recordings refer to recordings of sounds, whether musical or non-musical, in any format, such as records, cassettes, CDs, and digital files.

Key Points:

  • The copyright in sound recordings is separate from the copyright in the musical composition itself. This means that the recording of a musical performance is copyrightable independently of the musical composition.

Case Law:

  • Gramophone Company of India Ltd. vs. Super Cassette Industries Ltd. (AIR 1984 SC 667): This case affirmed that sound recordings, as independent works, are subject to copyright protection separate from the underlying musical compositions.

7. Architectural Works (Section 13(1)(d))

Definition: Architectural works are designs and plans for buildings or other structures.

Key Points:

  • The copyright protects the artistic design of a building, including the drawing, plans, and blueprints. However, functional aspects (e.g., structural design) are not protected unless they are original and artistic.
  • The protection does not extend to the functionality or utility of the building.

8. Computer Programs (Section 13(1)(a))

Definition: Computer programs are considered a form of literary work under the Copyright Act, 1970. They include software programs written in code, which can be both a work of authorship and a machine-readable medium.

Key Points:

  • Computer programs are protected as literary works under the Act, and their protection covers the original code, structure, and design, as well as the overall functionality of the program.

9. Derivative Works (Section 14)

Definition: Derivative works refer to works that are based on one or more pre-existing works. For example, adaptations, translations, or arrangements.

Key Points:

  • The creator of a derivative work must obtain permission from the original copyright holder if the derivative work is based on a copyrighted work.

10. Collective Works (Section 2(l))

Definition: A collective work is a work that is created by the collection and assembling of pre-existing works (e.g., an anthology of poems or a compilation of short stories).

Key Points:

  • The copyright in a collective work generally belongs to the compiler of the work, though the individual authors of the included works retain the copyright in their original contributions.

Conclusion

The Copyright Act, 1970 provides protection to a wide range of creative works, allowing authors and creators to control the use of their works and generate income from them. The subject matter of copyright includes literary, dramatic, musical, artistic works, cinematographic films, sound recordings, and more. Each category of work has its own specific protections, ensuring that the rights of creators are respected and their works are not exploited without permission.

The case laws highlighted above have further defined and interpreted the scope of copyright protection, helping clarify issues like the extent of protection, infringement, and the balance between creators’ rights and public access.

QUESTION- Explain various rights of broadcasting authorities.

Broadcasting authorities, under the Copyright Act, 1970, are given certain exclusive rights regarding the use and distribution of their broadcasts. These rights were introduced in the Act to provide legal protection to broadcasters who invest in the creation and dissemination of content through radio, television, or other media.

The Copyright Act, 1970 specifically recognizes broadcasting authorities and provides them with certain exclusive rights under Section 37. These rights are designed to protect the unique nature of broadcasts and the investments made by broadcasters in their content.

1. Right to Broadcast (Section 37)

The right to broadcast is one of the primary rights given to broadcasting authorities under the Copyright Act. This right protects the broadcasting of works, ensuring that no one can broadcast a work without the broadcaster’s permission.

  • Section 37 provides that a broadcaster has the exclusive right to make a broadcast of a work.
  • A broadcaster can also make a recording of a broadcast, and this recording is treated as a separate work that can be protected under copyright law.

Case Law:

  • Indian Performing Rights Society Ltd. v. Eastern India Motion Picture Association (AIR 1977 SC 1443)
  • This case emphasized the right of broadcasting authorities to control and license public performances of musical and dramatic works. The court held that broadcasting authorities, such as radio and television stations, have the exclusive right to perform works publicly and are entitled to protection against infringement.

2. Right to Fix Broadcasts (Section 37)

Broadcasters also have the right to fix their broadcasts in a physical medium, such as recordings (for example, in the form of CDs, DVDs, or digital files). This means that no one can record or copy a broadcast without the broadcaster’s consent.

  • This protection ensures that broadcasters can exploit the content of their broadcasts commercially.
  • It covers the right to make copies of a broadcast for purposes like distribution or public performance.

Case Law:

  • BBC v. A.V. Merican (1965): This case dealt with the issue of unauthorized recording of broadcasts. The court ruled that the exclusive right to fix a broadcast in a tangible form lies with the broadcaster. Any unauthorized recording is considered an infringement of their rights.

3. Right to Make a Recording (Section 37)

The right to make a recording of a broadcast is an extension of the right to broadcast. This right allows the broadcasting authority to create recordings of its broadcasts and exploit them commercially. It grants them control over how recordings of broadcasts are used.

  • Section 37 of the Copyright Act stipulates that the copyright in the broadcast extends to the fixed recording of the broadcast, and such recordings are protected as an independent work under the Act.

Case Law:

  • All India Radio v. Shankar (AIR 1991 SC 2032): The Supreme Court held that broadcasting authorities, such as All India Radio, have the exclusive right to make recordings of their broadcasts. The court also clarified that any unauthorized recording or reproduction of these broadcasts constitutes an infringement of the broadcasting authority’s rights.

4. Right to License and Assignment (Section 37)

Broadcasting authorities have the right to license their broadcasts or recordings to third parties for commercial exploitation. They can also assign their rights to other parties, subject to specific conditions.

  • The licensing rights granted under Section 37 enable broadcasters to grant permission to others to use or broadcast their works. This is essential for monetizing content, such as through licensing agreements with other media companies or platforms.

Case Law:

  • Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. (AIR 2008 SC 2322): The Supreme Court ruled that broadcasting authorities have the exclusive right to license the broadcast and recording of their programs. Unauthorized use of these rights by third parties constitutes an infringement of copyright.

5. Right to Prevent Unauthorized Broadcasting (Section 37)

Broadcasting authorities have the right to prevent unauthorized broadcasting of their works, including live broadcasts or pre-recorded content.

  • The Act provides them with the legal tools to take action against any unauthorized entity or individual who seeks to broadcast, record, or otherwise exploit the broadcast without the proper authorization.

Case Law:

  • All India Radio v. N. V. B. R. (AIR 1992 SC 1035): The Supreme Court reinforced the exclusive rights of broadcasting authorities to control the broadcasting of their content. It held that the unlawful broadcasting of AIR’s programs without prior permission was an infringement of copyright.

6. Moral Rights (Section 37)

Although the Copyright Act does not expressly provide for moral rights for broadcasting authorities, these rights are often implied when the broadcasters’ works are used or misused. Moral rights refer to the right of authors (or in this case, the broadcasters) to control the integrity of their works.

  • Moral rights would ensure that broadcasters’ content is not altered, distorted, or used in a way that could harm their reputation or the integrity of the content.

Case Law:

  • P.T. Rajan v. T. T. Krishnamachari (AIR 1999 SC 94): In this case, the court discussed the role of moral rights in maintaining the integrity of works. Although this case does not directly relate to broadcasting, it highlights the importance of respecting the integrity of works and the author’s rights, which also applies to broadcasting content.

7. Rights of Broadcasting Organizations Under International Conventions

The International Protection of Broadcasting Rights is an area recognized in global treaties like the Rome Convention and the TRIPS Agreement. These treaties aim to protect broadcasting organizations internationally and grant them certain rights to prevent unauthorized use of their broadcasts and recordings across borders.

  • Broadcasting rights are protected internationally under various conventions, ensuring that broadcasting authorities can prevent unauthorized retransmission of their broadcasts and recordings outside of their home jurisdiction.

Case Law:

  • Broadcasting Corporation of New Zealand v. Universal Music Publishing Ltd. (2004): In this case, the court ruled that international broadcasting rights are governed by international treaties and conventions like the Rome Convention and the Berne Convention. Unauthorized broadcasting across borders without permission from the originating country’s broadcasters was deemed illegal.

Conclusion

Broadcasting authorities have several exclusive rights under the Copyright Act, 1970, which allow them to control the use of their broadcasts. These rights include the right to broadcast, the right to fix and record broadcasts, the right to license or assign their rights, and the right to prevent unauthorized broadcasting. These rights are crucial for the economic interests of broadcasters, enabling them to protect their content from piracy and unauthorized use.

Various case laws highlight the application of these rights and underscore the importance of respecting the legal protections granted to broadcasting authorities. These protections align with international standards, ensuring broadcasters’ content is safeguarded both domestically and globally.

Copyright is a form of legal protection provided to the creators of original works of authorship, granting them exclusive rights to their creations. It is designed to incentivize creativity and innovation by ensuring that creators have control over the use of their works. The Copyright Act, 1970 in India governs these rights. Below, we explore the various characteristics of copyright in detail:

1. Protection of Original Works

One of the most fundamental characteristics of copyright is that it protects original works of authorship. The work must be the author’s own creation and not copied from others.

  • Section 13 of the Copyright Act, 1970, defines works protected by copyright, including literary, dramatic, musical, artistic works, and cinematographic films.
  • The work must be original; that is, it must originate from the creator’s intellectual effort and not be copied from pre-existing works.

Key Point:

  • The concept of originality doesn’t mean that the work must be unique, but it must be the product of the author’s skill, judgment, and creativity.

Case Law:

  • University of London Press Ltd. v. University Tutorial Press Ltd. (1916): The court ruled that a work is original if it is the product of the author’s own intellectual effort and not copied from other sources.

Copyright grants the author or creator exclusive rights over the use of their work. These exclusive rights include:

  1. Reproduction Right: The right to make copies of the work.
  2. Distribution Right: The right to distribute copies of the work to the public.
  3. Performance Right: The right to perform the work publicly (e.g., plays, musical compositions).
  4. Adaptation Right: The right to create derivative works based on the original work (e.g., a movie based on a novel).

These rights allow the creator to control the ways in which their work is used and to earn royalties from it.

Case Law:

  • R.G. Anand v. M/s Delux Films (AIR 1978 SC 1613): In this case, the Supreme Court held that the exclusive right to adapt or transform an original work into a new form lies with the author, and any unauthorized use or adaptation infringes the copyright holder’s rights.

Copyright is typically territorial in nature, meaning that it is valid only in the jurisdiction where it is granted. For instance, copyright granted in India does not automatically extend to other countries. However, international treaties and conventions, such as the Berne Convention, aim to provide a uniform international framework for copyright protection.

  • Section 40 of the Copyright Act, 1970, states that a work will be protected in India if it is first published in India or if the author is an Indian citizen or domiciled in India.
  • International conventions like the Berne Convention for the Protection of Literary and Artistic Works ensure that copyright granted in one member country is respected in other countries.

Case Law:

  • India v. Michael J. V. (2002): This case dealt with the issue of whether a copyright holder’s rights extend to other jurisdictions and highlighted the importance of international treaties in providing cross-border protection.

4. Limited Duration of Protection

Unlike other forms of property, copyright is not a perpetual right. It has a limited duration, after which the work falls into the public domain and can be freely used by anyone. The duration of copyright protection depends on the nature of the work and the life of the author.

  • Under Section 22 of the Copyright Act, 1970, the general duration of copyright for literary, dramatic, musical, and artistic works is the lifetime of the author plus 60 years. For cinematographic films and sound recordings, the protection lasts for 60 years from the date of publication.
  • After the copyright term expires, the work enters the public domain, where it can be used by anyone without the need for permission or payment.

Case Law:

  • Shankar P. R. v. K. S. Suresh (2003): In this case, the court held that copyright expires after the specified duration, and once it does, the work enters the public domain for public use.

5. Right to License and Transfer

A copyright holder has the right to license or transfer their copyright to others. Licensing involves granting permission to another party to use the work, typically in exchange for compensation (royalties), while assignment involves transferring ownership of the copyright entirely.

  • Section 19 of the Copyright Act allows for the assignment of copyright, and Section 30 allows for the granting of licenses.
  • An exclusive license gives the licensee the sole right to use the work within the agreed terms, while a non-exclusive license allows the copyright holder to license the work to multiple parties.

Case Law:

  • Indian Performing Rights Society Ltd. v. Eastern India Motion Picture Association (AIR 1977 SC 1443): The court ruled that exclusive licensing agreements must be honored, as they grant the licensee the exclusive right to exploit the work within a specific scope and period.

6. Moral Rights

In addition to economic rights, the author or creator of a work enjoys certain moral rights, which protect their personal and reputational connection to the work. These rights are granted irrespective of the assignment or transfer of economic rights.

  • Section 57 of the Copyright Act, 1970, grants the author the right to:
  • Claim authorship of the work.
  • Prevent distortion or modification of the work that would harm the author’s honor or reputation.

These moral rights are non-transferable and exist independently of the copyright holder’s economic rights.

Case Law:

  • P.T. Rajan v. T. T. Krishnamachari (AIR 1999 SC 94): The Supreme Court recognized that the moral rights of an author to protect their work from distortion or modification are inviolable and cannot be waived or assigned.

7. Fair Use and Limitations

Copyright protection is subject to certain limitations that allow the public to use works under specific circumstances without the need for the creator’s permission. This is typically referred to as fair use (or fair dealing in Indian law).

  • Section 52 of the Copyright Act, 1970, outlines the exceptions to the exclusive rights of the copyright holder, including:
  • Fair use for research or private study.
  • Use for criticism or review (with proper attribution).
  • Use in judicial proceedings.

These exceptions balance the interests of copyright holders with the need for public access to knowledge and information.

Case Law:

  • Ramesh Chandra v. Union of India (AIR 1988 SC 245): The Supreme Court held that fair use provisions, including the right to critique or review works, must be respected, provided the work is used for public benefit without affecting the commercial value of the work.

While copyright protection is automatic upon the creation of an original work, registration provides a public record of the copyright holder’s claim to the work.

  • Section 45 of the Copyright Act provides for the registration of copyright with the Copyright Office. Registration is not mandatory but provides legal benefits, such as the ability to bring a lawsuit for infringement in court and a presumption of ownership in legal proceedings.

Conclusion

Copyright serves as a legal mechanism to protect the interests of creators, ensuring that they are incentivized to create new works. It grants authors exclusive rights to use and distribute their creations while providing limitations that balance the public’s interest in accessing information. The territorial nature of copyright, the limited duration of protection, and the rights to license, transfer, and prevent infringement make it a critical tool in the realm of intellectual property law.

These rights, while protecting the economic interests of the author, also ensure that creators’ moral rights are respected, making copyright a multifaceted and comprehensive protection system.

QUESTION-What is patent Right? How it is obtained and on whichgrounds it can be rejected?

Patent Right: Definition and Overview

A patent right is a legal protection granted to the inventor of a new, original, and useful invention. The patent gives the inventor exclusive rights to manufacture, use, and sell the patented invention for a certain period of time, typically 20 years from the date of filing the patent application. The patent system encourages innovation by providing inventors with an opportunity to benefit commercially from their inventions, thus fostering technological advancement.

In India, patent rights are governed by the Patents Act, 1970, as amended by the Patents (Amendment) Act, 2002.

How to Obtain a Patent

To obtain a patent, the inventor must follow a formal procedure, which generally includes the following steps:

  • Prior Art Search: Before applying for a patent, the inventor or their attorney conducts a patent search to ensure that the invention is novel and hasn’t been previously patented. This helps avoid rejection during the examination phase.
  • This search is typically conducted in the Indian Patent Advanced Search System (InPASS) or other patent databases.

2. Filing the Patent Application

  • The patent application is filed with the Indian Patent Office under the Patents Act, 1970. There are two main types of applications:
  • Provisional Application: This is filed when the invention is not yet complete but the inventor wants to establish a filing date. A complete application must be filed within 12 months of the provisional application.
  • Complete Application: This provides all the details of the invention, including the description, claims, and drawings if necessary. The patent application must include:
  • Title of the invention.
  • Abstract summarizing the invention.
  • Detailed Description with drawings, if applicable.
  • Claims that define the scope of the invention.

3. Examination of the Application

  • After the application is filed, it is published after 18 months unless the applicant requests earlier publication.
  • The Patent Office examines the application to ensure it meets the requirements set by the Patents Act, 1970. The examiner assesses the novelty, inventive step, and industrial applicability of the invention.
  • If the application is accepted after examination, the patent is granted, and the inventor is awarded exclusive rights to the invention.

4. Grant of Patent

  • If the examination is successful, the patent is granted, and the invention is protected for a period of 20 years from the filing date, subject to annual renewal fees.

Grounds for Patent Rejection

The Indian Patent Office can reject a patent application on the following grounds:

1. Lack of Novelty (Section 2(1)(j))

  • An invention is not patentable if it is not novel. An invention is considered novel if it has not been disclosed to the public in any form, anywhere in the world, prior to the filing date of the application. This includes:
  • Published books or articles.
  • Patents granted in other countries.
  • Public demonstrations or prior use. Case Law:
  • Bayer Corporation v. Union of India (2014): The Supreme Court ruled that novelty is a key requirement for patentability. The Court denied the patent for a drug because the claimed invention was already in the public domain, thus lacking novelty.

2. Lack of Inventive Step (Section 2(1)(ja))

  • An invention must involve an inventive step or non-obviousness, meaning that it cannot be obvious to a person skilled in the relevant field based on existing knowledge. If the invention is a mere modification or an aggregation of known elements, it lacks an inventive step.
  • For example, combining two existing known technologies in a manner that does not produce a surprising or unexpected result may not be considered inventive. Case Law:
  • Novartis AG v. Union of India (2013): The Supreme Court denied patent protection for a cancer drug, holding that it did not involve a significant inventive step and merely represented a minor modification of an existing compound.

3. Lack of Industrial Applicability (Section 2(1)(ac))

  • To be patentable, an invention must be capable of industrial application, i.e., it must be usable in some kind of industry, such as agriculture, manufacturing, or any other sector. If the invention cannot be commercialized or does not have a practical application, it cannot be patented. Case Law:
  • In Re: Application of Arvind V. Patel (2005): The court rejected a patent application for an invention that was purely theoretical and had no industrial applicability.

4. Exclusion of Certain Inventions (Section 3)

  • Section 3 of the Patents Act, 1970 lists inventions that cannot be patented, including:
  • Abstract Theories (such as scientific principles or mathematical methods).
  • Discovery of a new form of known substance that does not result in a significant enhancement of known properties.
  • Methods of agriculture or horticulture.
  • Inventions contrary to public order or morality, such as those involving human cloning. For instance, business methods, software algorithms, and purely mental processes are excluded from patentability.

5. Invention Not Fully Described (Section 10)

  • The invention must be described in sufficient detail in the patent application, so that someone skilled in the relevant field can reproduce the invention. If the application lacks adequate description, it may be rejected.

6. Prior Use or Disclosure (Section 29)

  • If the invention has been disclosed to the public in any form before the filing date of the patent application (either through public use, sales, or publications), it will be considered prior art, and the patent application may be rejected.

Patent Application Process in India:

  1. Patent Search: Check novelty and inventiveness.
  2. File Application: Submit a provisional or complete patent application.
  3. Examination: Patent Office examines the application for novelty, inventive step, and industrial applicability.
  4. Grant or Rejection: Based on the examination, a patent may be granted or rejected.

Conclusion

A patent provides the inventor with an exclusive right to use, manufacture, and sell their invention for a period of 20 years. Obtaining a patent involves a detailed application process and fulfilling stringent criteria, including novelty, inventive step, and industrial applicability.

The patent may be rejected if it fails to meet these requirements or falls under specific exclusions outlined in the Patents Act, 1970. By understanding these criteria, inventors can better navigate the patent process and protect their innovations from infringement.

Copyright is a form of intellectual property that grants the creator of an original work exclusive rights to its use and distribution. The Copyright Act, 1970 defines the subject matters of copyright protection. These subject matters are primarily literary, dramatic, musical, and artistic works, among others. Let’s explore the various subject matters of copyright in detail, with relevant sections of the Act and case laws.

1. Literary Works (Section 13(1)(a))

Literary works include any written work, whether in prose or verse, that is original and creative. It does not need to be restricted to books or articles but can also include software code, databases, and other forms of written text.

Examples of literary works:

  • Books
  • Articles
  • Computer programs
  • Software codes
  • Lecture notes

Case Law:

  • R.G. Anand v. M/s Delux Films AIR 1978 SC 1613
  • In this case, the Supreme Court dealt with the issue of whether the screenplay of a movie could be copyrighted. The Court held that the script was an original literary work, and the defendant’s film, which was based on the plaintiff’s screenplay, constituted an infringement of copyright.

2. Dramatic Works (Section 13(1)(b))

Dramatic works refer to any work that is intended for stage performance, whether it is a play, a screenplay for a film, or a choreographed dance performance. It includes the dialogue, the storyline, and any other artistic elements that form the whole of the drama.

Examples of dramatic works:

  • Plays
  • Screenplays
  • Dance choreography
  • Stage performances

Case Law:

  • Basu Choudhury v. J.V. Ramaswamy AIR 1977 SC 820
  • This case involved the infringement of a dramatic work. The plaintiff had created a play, and the defendant had copied its content. The Court upheld that a play is entitled to copyright protection, and the defendant’s actions amounted to infringement.

3. Musical Works (Section 13(1)(c))

Musical works are compositions of music, with or without words, and are protected under copyright. The music composition can include melody, harmony, and arrangement. The protection granted extends to both the written score and the actual performance.

Examples of musical works:

  • Songs (without lyrics)
  • Music compositions (without lyrics)
  • Orchestrations and arrangements

Case Law:

  • Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association AIR 1977 SC 1443
  • In this case, the Supreme Court considered the rights of the owner of a musical composition. The Court ruled that the copyright holder of a musical composition had the exclusive right to authorize performances of the composition, and the unauthorized use by the defendant constituted infringement.

4. Artistic Works (Section 13(1)(d))

Artistic works include any graphic or visual creation, which is original and fixed in a tangible medium. These works can be in two forms:

  • Pictorial works (paintings, drawings, sculptures)
  • Works of applied art (designs on fabric, furniture, architecture)

Examples of artistic works:

  • Paintings
  • Sculptures
  • Photographs
  • Architectural designs
  • Works of industrial design (e.g., logos, packaging design)

Case Law:

  • K.K. Verma v. Union of India AIR 1954 SC 520
  • The case dealt with whether the government’s use of a painting without the artist’s consent constituted infringement of copyright. The Court held that artistic works, including paintings and sculptures, are protected under copyright law.

5. Cinematograph Films (Section 13(1)(f))

Cinematograph films include any work that is recorded on film, video, or other visual media. This protection applies to the original work, including the script, sound recording, and visual images, as well as the final film.

Examples of cinematograph films:

  • Movies
  • Documentaries
  • Short films

Case Law:

  • M/s Eastern Book Company v. D.B. Modak AIR 2008 SC 2524
  • The Court dealt with the infringement of the copyright in a cinematograph film, where the defendant had used a part of the plaintiff’s film without authorization. The Court held that the cinematograph film is a work of joint authorship, and the rights of authors are to be respected.

6. Sound Recordings (Section 13(1)(d))

Sound recordings include the recording of sounds or any other material by any method. These works are separate from musical works and have their distinct copyright protection.

Examples of sound recordings:

  • Music albums
  • Audiobooks
  • Voice recordings
  • Sound effects

Case Law:

  • Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association AIR 1977 SC 1443
  • This case clarified the protection of sound recordings, emphasizing that the copyright holder of a sound recording has exclusive rights to control its reproduction and distribution.

7. Architectural Works (Section 13(1)(e))

Architectural works refer to the designs of buildings, monuments, or any other physical structures. These are subject to copyright protection if they meet the original creativity threshold.

Examples of architectural works:

  • Building designs
  • Architectural plans and drawings
  • Monuments and sculptures embedded in buildings

Case Law:

  • University of London Press Ltd. v. University Tutorial Press Ltd. (1916) 2 Ch. 601
  • This case considered whether the design of a book’s layout could be copyrightable as an artistic work. The Court held that the layout of the book was sufficiently original and creative to be protected under copyright law.

8. Computer Programs (Section 13(1)(a))

Computer programs are explicitly recognized as literary works under the Copyright Act. The protection of software is akin to literary works, which includes the source code and object code.

Examples of computer programs:

  • Software applications
  • Mobile apps
  • Websites
  • Source code

Case Law:

  • Microsoft Corporation v. Amway Corporation (2003) 2 SCC 377
  • The case concerned the infringement of Microsoft’s copyrighted software. The Court ruled in favor of Microsoft, establishing that computer programs are literary works protected under the Copyright Act.

9. Derivative Works (Section 2(ddl))

Derivative works are works that are based on one or more pre-existing works, which have been modified or adapted in some way. For example, translations, adaptations, or arrangements of a pre-existing literary work are considered derivative works.

Examples of derivative works:

  • Translations of books into other languages
  • Film adaptations of novels
  • Musical arrangements or remixes

Case Law:

  • Shiv Kumar v. Rajiv K. Tripathi AIR 1996 SC 1801
  • The Court considered whether a derivative work based on an original work can be copyrighted. The case emphasized the originality in derivative works and how they are treated under copyright law.

Conclusion

The subject matters of copyright under the Copyright Act, 1970 cover a broad spectrum of works, ranging from literary and dramatic works to musical and artistic works, as well as cinematograph films, sound recordings, and computer programs. The protection of these works is essential in encouraging creative expression and ensuring that creators maintain control over their works.

Through various case laws, the Indian courts have reaffirmed the importance of protecting these works, providing clarity on the scope and application of copyright laws in India.

QUESTION-Explain the following:

a)  Abridgment of work

b)  Copy board

Abridgment of work refers to the act of shortening, condensing, or editing a copyrighted work while retaining its essential elements and meaning. The goal of an abridgment is typically to produce a more concise version of the original work, while the creative expression remains the same. However, even in an abridged form, the work must still remain original and creative.

Key Points on Abridgment:

  • Definition: Abridgment is essentially a transformation of an original work into a shorter form, where the core ideas and message of the work are preserved.
  • Type of Works: Abridgments can be made to any copyrighted work such as literary works, musical compositions, dramatic works, or artistic works.
  • Copyright Implications: Abridging a work, like any transformation of a copyrighted work, requires the permission of the original copyright owner unless the use falls under the fair dealing provisions.
  • Section 2(1)(a) of the Copyright Act, 1970 defines “original work” as a work that is the product of the creator’s skill, labor, or judgment. Abridgment typically involves using the original work but in a form that is shorter or more concise.
  • Section 14 deals with the rights of the copyright owner and specifically includes the right to authorize or prohibit the adaptation and abridgment of the work. According to Section 14, the exclusive right of reproduction includes the right to make adaptations, and hence, abridgments.
  • Section 52 provides some exemptions regarding the abridgment of a work under fair use for research, teaching, or non-commercial purposes.

Case Law:

  • R.G. Anand v. M/s Delux Films AIR 1978 SC 1613: In this case, the Supreme Court considered whether an abridgment of a film constituted an infringement of copyright. The Court ruled that abridging a film could infringe copyright if it involved significant portions of the original work.
  • Jai Publications v. Deva Press AIR 1988 Delhi 231: The case discussed how abridgment could violate copyright if substantial parts of the original work were used without authorization.

The Copyright Board is a statutory body created under Section 11 of the Copyright Act, 1970, tasked with adjudicating disputes related to copyrights and providing a forum for settling such issues. The board plays a critical role in the administration and enforcement of copyright laws in India.

  1. Adjudication of Disputes: The primary function of the Copyright Board is to resolve disputes between parties concerning copyright issues. This includes disputes over the ownership of works, infringement claims, and licensing issues.
  2. Approval of Licenses: The Board is responsible for granting or rejecting applications for compulsory licenses in certain circumstances. This includes situations where the copyright holder refuses to grant a license for the use of the work, and a third party applies to the board for permission to use the work.
  3. Determining Fair Compensation: In cases of compulsory licensing, the Copyright Board is tasked with determining fair compensation to be paid to the copyright holder.
  4. Appeals: The Copyright Board is also the appellate body for appeals made against decisions of the Registrar of Copyrights. If a party is dissatisfied with the Registrar’s decision, it can appeal to the Board for redress.
  • The Copyright Board consists of a Chairman and other members appointed by the Government of India.
  • The Chairman must be a person who is a judge of the Supreme Court or has expertise in intellectual property law.
  • The members of the Board should have expertise in copyright law, publishing, or related fields.
  • The proceedings before the Copyright Board are judicial in nature, and it operates much like a tribunal.
  • An application for resolving a dispute or for seeking a decision must be filed by the aggrieved party.
  • The Board has the authority to summon witnesses, issue orders, and enforce its decisions.
  • The Board has the power to strike down registration of a work if it is found to be improperly registered.
  • It can also determine royalties for the use of copyrighted works in certain cases, particularly when there is a dispute regarding the amount to be paid to the copyright holder for public use.

Appeal to High Court:

  • A decision of the Copyright Board can be appealed to the High Court under Section 72 of the Copyright Act.

Case Law:

  • Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association AIR 1977 SC 1443: The Supreme Court clarified the role of the Copyright Board in determining issues related to the performance rights of musical works. The case emphasized the necessity of the Board’s involvement in regulating disputes over rights and royalties.
  • M/s Eastern Book Company v. D.B. Modak AIR 2008 SC 2524: This case dealt with the role of the Copyright Board in determining disputes between parties over the ownership of a published work, showing its authority to resolve conflicts in intellectual property rights.

Conclusion:

  • Abridgment of work is a form of adaptation of a copyrighted work where the content is shortened, condensed, or edited, but its essence is preserved. The Copyright Act, 1970 grants the copyright holder exclusive rights over such adaptations, and unauthorized abridgment can lead to copyright infringement.
  • The Copyright Board is a specialized body under the Copyright Act that handles disputes relating to copyright ownership, licensing, and other related matters. It plays a pivotal role in ensuring that copyright laws are followed and provides a platform for resolving conflicts in the creative industry.

Both of these concepts are integral to the protection of intellectual property and the administration of copyright law in India.

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