B.A. LL.B. (Five Years) Sem 10 Intellectual Property Rights II 2016 Dec Question Paper with Solutions

For full marks, cover: Part A, what copyright is: the definition (section 14), its main features (statutory, exclusive, negative, divisible, limited; section 16); Part B, where copyright does not subsist, in five groups: (1) things that are not "works": ideas, concepts, facts, news, methods, titles and slogans, performances and broadcasts (Anil Gupta, Feist, Krishika Lulla); (2) material that is not original: copies, mechanical compilations, bare texts (section 13(1)(a); Eastern Book Company, Camlin); (3) exclusions by statute: infringing films and sound recordings (section 13(3)), construction methods in architecture (section 13(5)), registered and industrially exploited designs (section 15; Microfibres, Rajesh Masrani), anything outside the Act (section 16); (4) works without an Indian or treaty connection (sections 13(2), 40); (5) works whose term has expired or rights relinquished (sections 21 to 29); common misconceptions (Government works and judgments; unregistered works; works without merit); a table.

Part B: where copyright does not subsist

Group 1: things that are not "works". Copyright subsists only in the classes listed in section 13(1). Many valuable things fall outside them.

1. Ideas and concepts. Only the expression of an idea is protected.

Anil Gupta v. Kunal Dasgupta, AIR 2002 Del 379. The plaintiff disclosed in confidence a developed concept for a television match-making programme, which the defendants began to copy.

Held. The defendants were restrained for a time on the ground of breach of confidence. The idea itself carried no copyright. A concept developed for use could be protected only as confidential information.

2. Facts and news. Facts owe nothing to authorship, and the news of the day is free.

Feist Publications Inc. v. Rural Telephone Service Co., 18 USPQ 2d 1275 (US Supreme Court, 1991). A publisher copied the listings of a telephone directory.

Held. No one may claim originality in facts. An alphabetical list of names and numbers lacked even minimal creativity and was not protected.

Camlin Pvt. Ltd. v. National Pencil Industries, AIR 1986 Del 444. A company claimed copyright in a printed carton and sued a rival using a similar one.

Held. The plaint was rejected for disclosing no cause of action. A mechanically reproduced carton was not shown to carry copyrightable subject matter.

So mere copies, mechanical arrangements and material taken from others carry no copyright for the copier.

Group 3: exclusions by statute.

1. Infringing films and recordings. No copyright subsists in a film if a substantial part of it infringes another work. The same applies to a sound recording made in breach of copyright in a literary, dramatic or musical work (section 13(3)).
2. Construction methods. In a work of architecture, copyright covers only the artistic character and design, not processes or methods of construction (section 13(5)).
3. Designs. No copyright subsists in a design registered under the Designs Act, 2000 (section 15(1)). Copyright in a registrable but unregistered design ceases once articles bearing it are reproduced industrially more than fifty times (section 15(2)).

Group 4: works without an Indian or treaty connection. A published work must be first published in India, or have an author who was an Indian citizen. An unpublished work must have an author who was an Indian citizen or domiciled in India (section 13(2)). Foreign works are protected only through orders under section 40, such as the International Copyright Order, 1999. A work from a country outside every treaty the Order lists would get no copyright in India.

Group 5: works whose term has ended, or rights given up.

1. Copyright lasts for fixed terms, generally the author's life plus sixty years (sections 22 to 29). After that the work is in the public domain.
2. An author may relinquish his rights by notice to the Registrar or by public notice (section 21).

Common misconceptions

1. Government works do have copyright. It belongs to the Government (section 17(d)). But reproducing or publishing judgments and Official Gazette matter is allowed by an exception, unless a court prohibits it (section 52(1)(q)).
2. Unregistered works do have copyright. Registration is optional (section 45).

Conclusion. Copyright is the statutory, exclusive and divisible right to do and authorise the acts section 14 reserves in a work. It does not subsist in ideas, facts, methods, titles, performances or broadcasts, which are not works. Nor does it subsist in unoriginal material, infringing films and recordings, or construction methods. Registered and industrially exploited designs and foreign works without a treaty link are also outside it. So are works whose term has ended, or whose rights the author relinquished.