What Copyright Is

Section 14 says what copyright is. "For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof."

Section 16 says there is nothing else. "No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force, but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence."

Read the three together and the shape of the subject appears. Section 13 is the gate: only these classes of work get in. Section 14 is the content: this is what the owner may stop. Section 16 is the wall: whatever is not in the Act is not copyright, and a claim to something like copyright which the Act does not give must fail.

Broken down

A work must be in one of three classes. Original literary, dramatic, musical and artistic works form the first class and are usually called the primary works, because somebody composed them out of nothing. Cinematograph films and sound recordings form the second and third, and they are usually called derivative or entrepreneurial works, because they are made by recording something that already exists and the investment being protected is the producer's rather than an author's.

The word "original" governs only the first class. Section 13(1)(a) says original literary, dramatic, musical and artistic works. It does not say original films or original sound recordings, and that is deliberate: the film and the recording are protected because they were made, not because they were creative. [Originality and the Standard of Skill and Judgment] takes up what original means for the first class.

Copyright is a bundle, not a single right. Section 14 sets out a different list of acts for each class of work. For a literary work the owner may stop reproduction, the issuing of copies, public performance, communication to the public, the making of a film or a sound recording of it, translation and adaptation. For a film the list is shorter and different. Each of those is a separate right, each can be sold separately, and a person who has bought one has not bought the others.

The right extends to a substantial part. Section 14 says "in respect of a work or any substantial part thereof". Copying half a sentence of a long novel is not infringement; copying the one paragraph that is the point of the whole book may be. The question is one of quality, not of arithmetic, and [How a Court Decides Substantial Similarity] works it out.

It is a right to do or authorise. A person who does not copy anything but tells somebody else to, or licenses somebody else to, is exercising the right just as much. That is why a producer who commissions an infringing film is liable although he never held a pen.

A worked example

Priya Deshmukh, a schoolteacher in Kolhapur, writes a novel called Dongar. She writes it in a notebook, types it up, and emails the file to three friends. She has not registered anything and has not published anything.

Does copyright exist in Dongar? Yes. It is a literary work, it is original in the sense that she wrote it herself, and by section 13(1)(a) copyright subsists in it. Nothing has to be done to bring the copyright into existence: it arises when the work is made. Registration is available but is not a condition, and [Registration Is Not Compulsory] explains why.

What can Priya stop? By section 14(a) she can stop anybody reproducing the novel in any material form, including storing it electronically; issuing copies to the public; performing it in public or communicating it to the public; making a film or a sound recording of it; translating it; and adapting it.

One of the three friends, Sameer, translates Dongar into English and puts the translation on a blog. He has done an act in section 14(a)(v), making a translation, and an act in section 14(a)(i) and (iii), reproducing the work and communicating it to the public. He needed Priya's authority for each and had none. He has infringed.

A second friend, Anita, writes a novel of her own about a woman who climbs a mountain to scatter her mother's ashes, which is the theme of Dongar. She has taken the idea. Section 14 gives Priya no right over an idea, and section 16 forbids reading one in. Anita has not infringed, and no amount of unfairness changes that. [The Idea Expression Dichotomy] is where that rule is worked out.

A third friend, Ravi, prints thirty copies and sells them at a book fair. He has reproduced the work and issued copies to the public. He has also very likely committed an offence under section 63, because he did it knowingly and in the course of trade. The civil and the criminal consequences run side by side.

Where the boundary of the subject runs

The line that matters most in practice is the last one. Copyright asks only whether you made it yourself. Two photographers who photograph the same building from the same spot each own the copyright in their own photograph, and neither infringes the other. A patent could not work that way, and that difference is the reason copyright needs no examination and no grant.

What it does NOT mean

It does not mean you own the idea. The most common single error in this subject is to speak of stealing an idea. Section 14 gives rights over a work, and the courts have said for fifty years that the idea, the theme, the plot and the historical fact are common property.

It does not mean you own the physical object. Buying an original painting buys the canvas. The copyright stays with the artist unless it was assigned in writing, and the buyer who photographs the painting and sells prints is infringing. [Copyright as Property and Its Territorial Reach] separates the two.

It does not mean copyright is a monopoly on a subject. A monopoly stops everybody from making the thing. Copyright stops only copying. Anybody may write another novel about a woman climbing a mountain, and many people have.

And it does not mean the right is absolute. It is subject to the whole of the Act, which the opening words of section 14 say expressly. Compulsory licences, statutory licences, fair dealing and the term itself are all limits written into the same statute that grants the right.

Limits and criticism

The closed list in section 13 is a real limit. A thing that is not a literary, dramatic, musical or artistic work, a film or a sound recording gets nothing, however much labour went into it. That is why claims over a yoga sequence, a television format, a sporting event and a database have all had to be argued as something else.

Section 16 makes it worse for the claimant and better for the public. There is no residual common law copyright in India to fall back on. The single door section 16 leaves open is a breach of trust or confidence, which is why so many Indian format and concept cases are pleaded in confidence and not in copyright.

The term is criticised from both sides. Sixty years after the author's death is longer than the Berne minimum of fifty and much longer than any plausible incentive requires; nobody writes a novel because their grandchildren will still be paid for it. Owners answer that a long term is the price of a market in which rights can be traded at all.

Quick revision

Section 13(1). Copyright subsists throughout India in original literary, dramatic, musical and artistic works, in cinematograph films, and in sound recordings.

Section 14. Copyright means the exclusive right, subject to the Act, to do or authorise the doing of the specified acts in respect of a work or any substantial part of it.

Section 16. No copyright except under this Act, saving only a suit to restrain a breach of trust or confidence.

Three ideas to carry forward: copyright protects expression and not ideas; it is a bundle of separate rights, each separately tradeable; and it is a statutory right with statutory limits, not a natural monopoly.

No formality is needed. The right arises when the work is made. Registration proves, it does not create.

Test yourself

1. State the meaning of copyright with its section. Section 14 of the Copyright Act, 1957: the exclusive right, subject to the provisions of the Act, to do or authorise the doing of the acts specified in that section in respect of a work or any substantial part of it.

2. A friend describes a plot to you over coffee and you write a novel on it. Have you infringed? No. There is no copyright in an idea, a theme or a plot, and section 16 prevents any similar right being read in. If the plot was disclosed to you in confidence, a suit for breach of confidence may lie, which section 16 expressly preserves.

3. Why does section 13 use the word "original" for only one of its three classes? Because films and sound recordings are protected as investments in the making of a recording, not as acts of authorship. Only literary, dramatic, musical and artistic works have to be original.

4. You buy an original sculpture. May you make and sell photographs of it? Not without the sculptor's permission. You own the object; the copyright stays with the artist unless it has been assigned in writing.

5. Give two consequences of copyright being a bundle of rights. Each right can be assigned or licensed separately, so a publisher may hold the print right while a producer holds the film right; and a person who has bought one right has no authority to do an act covered by another.