Copyright and Related Rights
Chapter Six
Syllabus topic 1, "Introduction to Intellectual Property Rights (IPRs)"
Pages 21 to 24 of 842
In one line
Copyright arises automatically the moment an original work is written down, drawn, recorded or filmed, and it protects the way the thing is expressed rather than what it is about.
In exam wording: copyright is the exclusive right, conferred by statute on the author of an original literary, dramatic, musical or artistic work and on the producer of a cinematograph film or sound recording, to do or authorise the doing of certain acts in relation to that work, arising automatically on creation without any formality and subsisting for a term measured in most cases by the life of the author and sixty years thereafter.
Why the law has this at all
Writing is cheap to copy and slow to make. A novel takes a year and a photocopier takes an hour. The economic argument is the same as for patents.
But the bargain is different. An author is not asked to teach anybody anything. A novel discloses no method. So the state asks for no disclosure and gives a much longer term in exchange for much less.
And there is a second reason that has nothing to do with economics. A work of authorship is an expression of a person, and continental European systems in particular treat the author's connection with the work as something the law protects for its own sake. That is where moral rights come from, and it is why Berne Article 6bis exists.
What is protected, and what is not
Section 13 of the Copyright Act 1957 says copyright subsists in original literary, dramatic, musical and artistic works, cinematograph films and sound recordings.
"Original" does not mean novel. It means not copied, and originating from the author. Two photographers who take the same view each own copyright in their own photograph.
The idea expression dichotomy. Copyright protects the expression and never the idea, the method, the plot at its most abstract, the fact or the news. This is a rule of Indian law and it is also a treaty obligation: TRIPS Article 9.2 says copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
No registration is required anywhere in the world. Berne Article 5(2) says the enjoyment and the exercise of these rights shall not be subject to any formality. Indian registration under section 45 is voluntary and produces only prima facie evidence.
The rights themselves
Section 14 sets out what the owner may do or authorise: reproduction, issue of copies, performance in public, communication to the public, adaptation, translation, and for computer programmes and films and sound recordings, commercial rental.
Neighbouring rights, also called related rights, belong to people who are not authors. Performers have rights under sections 38 and 38A; broadcasting organisations have a broadcast reproduction right under section 37. These come from the Rome Convention 1961, worked in [The Rome Convention 1961: Performers, Producers and Broadcasters].
Copyright and Related Rights
Moral rights under section 57: the right to claim authorship, and the right to restrain or claim damages for any distortion, mutilation or modification prejudicial to honour or reputation. They survive assignment of the copyright.
Term, and why it varies
Section 22: for a literary, dramatic, musical or artistic work published in the author's lifetime, copyright subsists for the author's lifetime plus sixty calendar years from the year following death.
Sections 26 and 27: sixty years from publication for a cinematograph film and for a sound recording.
Berne Article 7 sets the floor at life plus fifty, so India gives ten years more than the treaty requires. That is lawful because TRIPS Article 1.1 permits more extensive protection.
Limits: the three step test
Section 52 lists the acts that are not infringement, including fair dealing for private or personal use, criticism or review, reporting current events, and a long list of specific permissions.
Every one of them has to fit a treaty test. Berne Article 9(2) permits reproduction in certain special cases provided it does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. TRIPS Article 13 generalises that to all exclusive rights. It is called the three step test and it is the single most important limit on what a legislature may do, worked in [TRIPS Articles 9 to 14: Copyright and Related Rights].
A worked example
Sunil Kadam, a music teacher in Nashik, composes a tune and writes words for it.
Copyright exists from the moment he writes it down or records it. No registration, no fee, no formality anywhere in the world, because of Berne Article 5(2).
He owns two works, not one. The words are a literary work and the tune is a musical work, and they can be assigned separately.
A film producer commissions him to write it for a film. Under section 17(b) and (c) of the Copyright Act the producer becomes the first owner unless there is a contract to the contrary. That is the rule laid down in Indian Performing Right Society Ltd v. Eastern India Motion Pictures Association.
Facts. The Indian Performing Right Society published a tariff for public performance of musical works. Film producers argued that once a composer wrote for a film under a contract of service, the producer owned the copyright in the film and no separate performing right survived in the composer. The dispute reached the Supreme Court, reported at (1977) 2 SCC 820; AIR 1977 SC 1443.
Copyright and Related Rights
Held. A producer who commissions a composer for valuable consideration for the purpose of a cinematograph film becomes the first owner of the copyright in the composition under section 17(b) and (c), and no copyright subsists in the composer unless there is a contract to the contrary; but the composer retains rights in respect of uses outside the film.
Why it matters. It is the foundation of collective administration of copyright in India, and it is the case behind the 2012 amendments to sections 17, 18 and 19, which gave authors of literary and musical works used in films an unassignable right to a share of royalties. It shows a national legislature going beyond what Berne and TRIPS require, which is exactly what TRIPS Article 1.1 permits.
What it does NOT mean
Copyright does not protect facts. A timetable, a phone number, a score.
Copyright is not infringed by independent creation. Unlike a patent, which is infringed however the infringer arrived at the invention, copyright requires copying.
Registration is not a condition of protection anywhere. A student who says an Indian author must register is contradicting Berne Article 5(2).
Moral rights are not assignable. Section 57 rights remain with the author even after the copyright is sold.
Quick revision
- Copyright subsists automatically on creation in original literary, dramatic, musical and artistic works, films and sound recordings (section 13). Original means not copied, not novel.
- No formality: Berne Article 5(2). Indian registration under section 45 is voluntary and evidentiary only.
- Idea expression dichotomy: TRIPS Article 9.2 protects expressions and not ideas, procedures, methods of operation or mathematical concepts.
- Section 14 sets the exclusive rights; section 57 the moral rights, which survive assignment.
- Term: life plus 60 years (section 22), and 60 years from publication for films and sound recordings. Berne Article 7 requires only life plus 50.
- Related rights for performers (sections 38, 38A) and broadcasters (section 37) come from the Rome Convention.
- Exceptions must satisfy the three step test: Berne Article 9(2) and TRIPS Article 13.
- Indian Performing Right Society Ltd v. Eastern India Motion Pictures Association: the film producer is first owner under section 17(b) and (c) absent a contract to the contrary.
Test yourself
1. How does copyright arise, and what does it protect? It arises automatically, on the creation of an original work, with no registration, deposit, notice or fee required anywhere in the world. That is not merely Indian law but a treaty obligation: Article 5(2) of the Berne Convention provides that the enjoyment and the exercise of the rights it protects shall not be subject to any formality. Registration under section 45 of the Copyright Act 1957 is available in India but is voluntary, and the entry in the Register is only prima facie evidence of the particulars entered. What copyright protects is the expression of the work and not what the work is about. Article 9.2 of TRIPS states the rule in terms: copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such. So a plot idea, a scientific theory, a fact, a piece of news and a method of doing business are all outside copyright, and two authors who independently produce similar work each own copyright in their own, because copyright is infringed only by copying and not by independent creation.
Copyright and Related Rights
2. What are related rights, and where do they come from? Related rights, also called neighbouring rights, are the rights of people who contribute to bringing a work to the public without being its author: performers, producers of phonograms, and broadcasting organisations. They exist because the Berne Convention protects authors and says nothing about the singer who performs the song, the record company that fixes the performance or the station that broadcasts it, all of whom invest and all of whom can be copied. The gap was filled by the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, concluded at Rome in 1961 and administered jointly by WIPO, the International Labour Organization and UNESCO. Indian law gives effect to the same idea in sections 37, 38 and 38A of the Copyright Act 1957, which confer a broadcast reproduction right on broadcasting organisations and performers' rights including a moral right, the latter added by the 2012 amendment. TRIPS Article 14 requires WTO members to protect performers, producers of phonograms and broadcasting organisations, though it does not require them to join the Rome Convention.
3. Explain the idea expression dichotomy and the three step test, and how they differ. They are two different limits and they are frequently confused. The idea expression dichotomy is a rule about what copyright covers at all: it never covers an idea, a procedure, a method of operation or a mathematical concept, only the particular expression an author gives to it, and TRIPS Article 9.2 puts the rule in the Agreement. It operates automatically and requires no exception, because the idea was never protected in the first place. The three step test is a rule about the exceptions a legislature may create to rights that do exist. It originates in Article 9(2) of the Berne Convention, which allows members to permit reproduction in certain special cases, provided that the reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author, and TRIPS Article 13 generalises the same three conditions to all exclusive rights and all works. The consequence is that section 52 of the Indian Copyright Act, which lists the acts that are not infringement, has to satisfy those three conditions, and a WTO panel held in the Section 110(5) dispute that an over broad exception fails them.
The rest of this subject
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