Copyright is a legal term used with respect to the rights that an author has over his work like literary, dramatic, or artistic work, etc. In India, the law related to copyright is governed under the Copyright Act, 1957 (the Act). Section 14 of the Copyright Act 1957 states, “Copyright means the exclusive right to do or authorize the doing of certain acts in respect of works such as literary, dramatic, musical, artistic, cinematography, sound recording, to do acts of reproduction of the work, issuing copies of the work, and to perform the work or communicate the work to the public.”
All subject matters protected by copyright are called “works”. Such works are mentioned under Section 13 of the act, as below:
Original Literary work
Example: Works such as books, magazines, articles, journals, etc.
Dramatic work
Example: Composition, choreography, drama, poems, etc.
Musical work
Example: Work which consists of music, its graphical notations, and combinations; its composition.
Artistic work
Example: Paintings, Sculpting’s, graphics, etc.
Cinematographic films
Example: Movies, or any other work with audio and visual effects.
Sound recordings
Example: Person Playing a song or musical instrument.
Rights of Copyright Owner
The creator of the original work is considered as “the author” of the work, under the act, the author is considered the first owner of the work. To prevent others from using the original work, the author possesses certain rights such as, to claim compensation for the infringement of his work. There are two types of rights that an author usually possesses, such as:
Economic rights
- The right to reproduce,
- The right to make adaptations of the work,
- The right to distribute,
- The right to perform the work publicly,
- The right to broadcast the work,
- The right to rent the work.
Under the Copyright Act, 1957, Section 14 enumerates these rights for the subject matters of copyright;
- In case of literary, dramatic, or musical work which exclusive of computer program [Section 14(a)]
The exclusive rights include the right to do:
- Reproduction of the work in any material form which includes electronic form,
- To issue copies of the work to the public which are not already in circulation,
- To perform or communicate the work to the public,
- To make a cinematographic film or sound recording in respect of the above-mentioned works,
- To translate such work,
- To make adaptations of such work,
- to do, about a translation or an adaptation of the work, any of the acts specified concerning the work in sub-clauses (i) to (vi).
- In the case of Computer Programmes [Section 14(b)]
In addition to the above exclusive rights, mentioned under section 14 (a), additional rights include the right to sell, commercially rent or offer to sell or commercially rent the program.
- In the case of Artistic works [Section 14(c)]
The rights of the author under section 14 (c) include the right:
- To reproduce the work in any material form including electronic form. This includes work depicted in two or three dimensions,
- Includes the right to communicate the work to the public,
- Includes the right to issue copies of the work to the public,
- Includes the right, to include the work in any cinematographic film,
- Includes the right to make adaptations of the work.
- In the case of a Cinematographic Film [Section 14(d)]
The rights of the author under section 14 (d) include the right:
- To make copies of the film or a photographic image of the forming part,
- Storing of it in any medium by electronic or other means,
- To sell or commercially rent the work,
- To communicate the work to the public.
- In case of a sound recording [Section 14(e)]
The rights of the author under section 14 (e) include the right:
- To make any other sound recording embodying the original work and storing it in any medium,
- To sell or commercially rent the recording,
- To communicate the recording to the public.
Moral Rights
They are special rights of the author and are independent of the author’s economic rights. Even after the transfer of the economic right, the author still has his moral rights, such as:
- Right to paternity
It is the right that instills the right to assert the authorship of the work and prevent others from claiming authorship of the work.
- Right to Integrity
Through this right, the author can object to any distortion, modification, or mutilation of his work.
Copyright Infringement
Copyright Infringement is the utilization or production of a material, which is copyrighted without the permission of the copyright holder. In other words, copyright infringement is the breach of rights that are granted exclusively to the owner of the copyrighted material.
Section 51 of the Copyright Act 1957 defines infringement. It deems that the copyright in a work is infringed if:
- When any person, without a license granted by the owner or registrar of copyright under this act or contravenes the conditions of a license granted or of any conditions imposed by an authority which is competent under this act:
- Does anything, which under this act, only the owner is allowed to do or has the exclusive right to do, or
- Permits for profit, communication of the work to the public where such communication would amount to infringement unless he is not aware and had reasonable ground to believe that such communication to the public would not amount to infringement.
When any person,
- Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- By way of trade exhibits in public, or
- Imports into India (provided that, this sub-clause shall not apply for import of one copy of any work for the private and domestic use of the importer),
Any infringing copies of the work.
In the case of K R Venugopala Sarma v. Sangu Ganesan, it was held that “one picture can be said to be a copy of another picture only if a substantial part of the former picture finds a place in the reproduction and the copy must suggest that it is the appellant’s picture”.
In another case, Wadia Movie Tone Pvt Ltd v. Vishal Bharadwaj the Character in the Film Rangoon, “Janbaaz Julie” was claimed as substantial copying of the character “Fearless Nadia” in the Film “Hunterwali” (1930). The court held the defendants guilty of infringement and ordered Rs. 2 Crore as a Bank Guarantee.
Fair use/Fair Dealing Doctrine
Fair use is a legal doctrine that permits a person to make use of any work to maintain the originality and sanctity of the work.
In congruence with the copyright laws of the UK, India has adopted the concept of Fair Dealing. The same is referred to as fair use in the US copyright Laws.
The meaning of fair dealing depends on different facts and circumstances of the case. In India, the court determines the applicability of the doctrine based on the nature, facts, and circumstances of the case. The doctrine has been usually determined keeping in mind the economic impact that the usage of copyrighted work has on the owner. In cases where the impact has not been significant, the act can constitute fair dealing. The nature of fair dealing depends on four factors:
- Purpose of use
If the work was used for reviewing, commenting, criticizing, etc, then the doctrine is applicable.
- Nature of work
The characteristics of the work, the content of the work is also important in determining the applicability of the doctrine.
- Amount of work used
The quality and quantity of the work are important in determining the applicability of the doctrine.
- Effect of the work on the original work
The effect the copied work has on the original work, i.e., to what extent can the original work be harmed, is also important in determining the applicability of the doctrine.
Fair dealing has been covered under Section 52 of the Copyright Act, 1957. This section allows the defense of fair dealing for certain purposes, such as:
Fair dealing with any work, not being a computer programme for the purposes of-
- Private and personal use, including research;
- Criticism or review, whether of that or any other work;
- The reporting of current affairs, including reporting of lectures delivered in public.
The transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;
- The reproduction of a work for the purpose of judicial proceeding or for the purpose of a report of a judicial proceeding;
- The reading or recitation in public of reasonable extracts from a published literary or dramatic work;
- The reproduction of any work in a certified copy or supplied in accordance with any law for the time being in force;
- The reproduction of any work-
- By a teacher or a pupil in the course of instruction; or
- As a part of the questions to be answered in an examination; or
- In answers to such questions;
The performance of a literary, dramatic, or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for a benefit or a religious institution.
In addition, the court also relies on precedents along with the facts and circumstances of the case to determine the applicability of the doctrine.
Some cases related to fair dealing;
In this case, the Court considered that a parody did not constitute an infringement of copyright as long as it has not been misused or misappropriated.
In this case, it was held that since the defendant’s book was not criticism or review, none of the exceptions under Section 52 could be attracted and that the defendant’s actions amounted to copyright infringement.
In this case, the court held that, “To constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.”
Through Fair use, the accused can defend their work against infringement claims for the purposes covered under the Copyright Act, 1957. In India, this concept has managed to provide an exhaustive list of exceptions to the claim of infringement under Section 52 of the act. The ambit of this concept is mostly based on interpretations. Many cases, as observed have had decisions made with due regards to the facts and circumstances of the case in hand.
Author: Amulya Bhat, Symbiosis Law School, Hyderabad
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