Works in Which Copyright Subsists
Chapter Twenty-Nine
Syllabus topic 1.4, "Nature of Copyrights"
Pages 125 to 128 of 719
In one line
Section 13 is the gate: it says which classes of work can have copyright, who has to be connected with India for it to exist here, and four situations in which it does not exist at all.
In the wording a student can write in an exam: by section 13(1) of the Copyright Act, 1957, copyright shall subsist throughout India in original literary, dramatic, musical and artistic works, in cinematograph films, and in sound recordings, subject to the conditions in section 13(2) and the qualifications in sub-sections (3), (4) and (5).
Why the law has this at all
Because copyright is not a general right in the products of the mind. It is a right in six named things. If a claimant's subject matter is not one of them, the claim fails at the threshold, and section 16 stops any argument that some similar right exists outside the Act.
And because a national copyright needs a national connection. India cannot sensibly protect every work made anywhere by anybody. Section 13(2) supplies the connecting factors, and Chapter IX then lets the Government extend protection to foreign works by order.
The provision itself
Section 13(1). "Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording."
Section 13(2). Copyright shall not subsist in any work specified in sub-section (1), other than a work to which section 40 or section 41 applies, unless: in the case of a published work, the work is first published in India, or where first published outside India, the author at the date of publication, or at his death if he was then dead, was a citizen of India; in the case of an unpublished work other than a work of architecture, the author at the date of making was a citizen of India or domiciled in India; and in the case of a work of architecture, the work is located in India. The Explanation adds that for a work of joint authorship these conditions must be satisfied by all the authors.
Section 13(3). Copyright shall not subsist in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; nor in any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording copyright in such work has been infringed.
Section 13(4). The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which, or a substantial part of which, the film or the sound recording is made.
Works in Which Copyright Subsists
Section 13(5). In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
Broken down
"Throughout India". The right is co-extensive with the country and stops at its borders. There is no State copyright and no local variation.
"Original". The word governs clause (a) only. Films and sound recordings are protected without any requirement of originality, which is why they are called entrepreneurial works. What "original" means for the first class is worked out in [Originality and the Standard of Skill and Judgment].
The six classes. Literary, dramatic, musical and artistic works, each defined in section 2; a cinematograph film, section 2(f); and a sound recording, section 2(xx). There is no seventh, and a claim over a format, a yoga sequence or a sporting event must be fitted into one of the six or fail.
The three connecting factors in sub-section (2). First publication in India; or the author's Indian citizenship at first publication abroad; or, for an unpublished work, Indian citizenship or domicile at the date of making. Architecture has its own rule: the building must be located in India.
The escape in sub-section (2). The conditions do not apply to a work to which section 40 or section 41 applies, which is how foreign works get in: [How India Protects Foreign Works] works out the order made under section 40.
Sub-section (3), the clean hands rule for derivative works. A film that is substantially an infringement has no copyright of its own, and neither does a sound recording made by infringing the underlying work. This is why an unlicensed remake is doubly exposed: it infringes, and it acquires nothing.
Sub-section (4), the coexistence rule. The copyright in a film or a sound recording does not affect the separate copyright in the works it was made from. Three or four copyrights therefore live inside one film song at once, and [Musical Works] counts them.
Sub-section (5), architecture. Copyright is in the artistic character and design only, not in processes or methods of construction. So a distinctive facade is protected and a technique of pouring concrete is not.
A worked example
Rehan Qureshi, an Indian citizen living in Dubai, writes a screenplay there in 2021 and does not publish it. He then makes a short film from it in Mumbai, using a song he has not licensed.
Does the screenplay have Indian copyright? Yes. It is a dramatic work under section 2(h) and section 13(1)(a). It is unpublished, so section 13(2)(ii) applies, and the author was a citizen of India at the date of making. His residence abroad is irrelevant; the condition is citizenship or domicile.
Works in Which Copyright Subsists
Does the film have Indian copyright? Section 13(1)(b) protects it, but section 13(3)(a) may take it away: if a substantial part of the film is an infringement of the copyright in the song, no copyright subsists in the film at all.
What does "a substantial part" mean here? Not a proportion. The question is whether what was taken is important to the film, judged qualitatively. A song used over the opening titles of a twelve minute film is very likely substantial.
Does the composer lose anything? No. Section 13(4) says the copyright in the film does not affect the separate copyright in the works from which it was made, so the composer's rights are untouched whatever happens to the film.
Change one fact: Rehan is not an Indian citizen and the screenplay was written in Dubai. Section 13(2)(ii) is not satisfied, so no Indian copyright arises under section 13. He must look to section 40 and the International Copyright Order, and, if the United Arab Emirates is a Berne member, he will find protection there.
Distinctions worth holding
| Primary works, section 13(1)(a) | Entrepreneurial works, section 13(1)(b) and (c) | |
|---|---|---|
| Must be original | yes | no |
| Author | the human creator, section 2(d) | the producer, section 2(d)(v) |
| Term | measured from the author's death, section 22 | sixty years from publication, sections 26 and 27 |
| Lost if derived from an infringement | no | yes, section 13(3) |
| Rights | section 14(a) to (c) | section 14(d) and (e) |
What it does NOT mean
It does not mean a work must be published. Section 13(2)(ii) protects an unpublished work expressly. Publication matters for the connecting factor and for the term, not for existence.
It does not mean a film loses copyright because it contains an infringement. Section 13(3)(a) requires that a substantial part of the film be an infringement. A single unlicensed photograph on a wall in one shot is not that.
And it does not mean copyright in the film swallows the underlying works. Section 13(4) says the opposite in terms, and it is the provision that makes film licensing complicated.
Limits and criticism
The closed list is the standing criticism. A television format, a database of facts, a sporting event and a yoga sequence have all been argued to fall outside it, and the courts have agreed. Countries with an open-ended definition of a work do not have that problem, though they have others.
Section 13(3) is severe. A film that infringes in a substantial part gets nothing at all, even for the ninety per cent that is original. Whether that is proportionate is a fair question, and the answer usually given is that a producer can always clear rights.
Works in Which Copyright Subsists
And the connecting factors have not been revisited since 1957. They speak of citizenship, domicile and first publication in a world where a work is made by a team in three countries and published everywhere at once.
Quick revision
Section 13(1): original literary, dramatic, musical and artistic works; cinematograph films; sound recordings.
Section 13(2): first publication in India; or the author's Indian citizenship at first publication abroad; or, unpublished, citizenship or domicile at making; architecture must be located in India. All joint authors must qualify. Sections 40 and 41 override.
Section 13(3): no copyright in a film a substantial part of which infringes, nor in a sound recording made by infringing the underlying work.
Section 13(4): the film or recording copyright does not affect the separate copyright in the underlying works.
Section 13(5): in architecture, copyright is in the artistic character and design, not in processes or methods of construction.
Test yourself
1. Does the word "original" in section 13(1) govern films and sound recordings? No. It governs clause (a) alone. Films and sound recordings are protected as investments in their making.
2. An Australian citizen writes an unpublished novel in Sydney. Does Indian copyright subsist under section 13? Not under section 13(2)(ii), because the author is neither a citizen of India nor domiciled here. It may subsist by virtue of an order under section 40, which extends the Act to works of Berne and other convention countries.
3. What happens to the copyright in a film that copies a substantial part of another work? Section 13(3)(a) says no copyright subsists in it at all.
4. Give the effect of section 13(4) in one sentence with an example. The copyright in a film or sound recording leaves the copyright in the underlying works untouched, so the composer of a film song keeps his copyright in the music although the producer owns the film.
5. What does copyright in a work of architecture cover? Only the artistic character and design; it does not extend to processes or methods of construction.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.