LLM Group 3 Law of Intellectual Property and Information Technology Copyrights Law and other related rights 2018 Question Paper with Solutions

For full marks, cover: two halves, and the first is worth more than it looks. ORIGINALITY is the gateway condition in section 13(1)(a) and the Act never defines it, so the meaning comes entirely from the cases, and the examiner wants the movement from University of London Press through Feist to Eastern Book Company. Then take the four definitions in section 2, quoting the operative words, and for each one say what the definition EXCLUDES, because that is where the marks are: a dramatic work excludes a film, a musical work excludes the words sung with it, an artistic work does not need artistic quality, and a literary work does not need literary merit.

The first meaning: originates from the author

The starting point is University of London Press Ltd v. University Tutorial Press Ltd, [1916] 2 Ch 601, where the question was whether examination papers set by appointed examiners were original literary works. Peterson J. held that the word does not require that the work be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and the requirement is only that the work should NOT BE COPIED FROM ANOTHER WORK, that it should ORIGINATE FROM THE AUTHOR. The examination papers qualified even though the mathematical propositions in them were old.

Two consequences follow. Novelty is irrelevant, so two photographers who independently take the same view each own copyright in their own photograph. And merit is irrelevant, which is why section 2(c) says an artistic work is protected "whether or not it possesses artistic quality" and why a shopping list and a sonnet are both literary works.

India chose between these in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1. The appellants published Supreme Court Cases, adding to the raw judgments their own copy editing, paragraph numbering, cross references, and indications of which judge delivered which part of the opinion. The Supreme Court held that the SWEAT OF THE BROW standard is too low and the Feist standard of creativity too high for the Indian Act. The test is SKILL AND JUDGMENT, involving something more than a trivial or mechanical exercise, and the derivative work must be distinguishable from the raw material by more than trivial variation. Applying it, the copy edited text of the judgments was NOT original, because correcting spelling and adding quotation marks is mechanical, but the paragraph numbering, the internal headings and the attribution of opinions to individual judges WERE, because they required judgment.

Macmillan and Company Ltd v. K and J Cooper, AIR 1924 PC 75, had earlier made the same point about derivative works. The Privy Council held that an abridgement of Plutarch's life of Alexander attracted copyright because of the labour, skill and capital in selecting and arranging the passages, and that what the second compiler must not do is take the FRUITS of that labour.

Dramatic work, section 2(h). It INCLUDES any piece for recitation, choreographic work or entertainment in DUMB SHOW, the SCENIC ARRANGEMENT OR ACTING FORM of which is FIXED IN WRITING OR OTHERWISE, but DOES NOT INCLUDE A CINEMATOGRAPH FILM. Two things are distinctive. First, this is the only class for which the Act expressly requires FIXATION, so an improvised performance that is never recorded or written down is not a dramatic work. Second, the exclusion of films is deliberate: the film is separately protected under section 13(1)(b), and the screenplay behind it remains a dramatic work in its own right.

Musical work, section 2(p). It means a work consisting of MUSIC and includes any graphical notation of such work, but DOES NOT INCLUDE ANY WORDS OR ANY ACTION intended to be sung, spoken or performed with the music. So a song is not one work. The MELODY is a musical work owned by the composer, the LYRIC is a literary work owned by the lyricist, the RECORDING is a sound recording owned by its producer, and if it appears in a film there is a film copyright as well. The definition was substituted in 1994; before that, a musical work had to be REDUCED TO WRITING, and the change means a composer who records but never notates is now protected.

Why the distinction between the classes matters

Three consequences turn on which class a work falls into. The RIGHTS differ: section 14(a) gives translation and adaptation for literary, dramatic and musical works, while section 14(c) gives an artistic work the right to depict a two dimensional work in three dimensions and the converse. The EXCEPTIONS differ: section 52(1)(t) permits the making or publishing of a painting, drawing or photograph of a work of architecture, and section 52(1)(u) of a sculpture permanently situated in a public place, exceptions with no counterpart for literary works. And the OWNERSHIP defaults differ under the provisos to section 17, where clause (b) picks out photographs, paintings, portraits, engravings and films made for valuable consideration.