When we discuss intellectual property law (IP), we are referring to intangible
property rights. Copyright, patents, trade secrets, industrial designs,
geographical indications, and trade marks are all protected by this law. When we
discuss copyright protection, we usually mean artistic works, cinematographic
works, original literary works, etc. In India, the Copyright Act of 1957
protects these types of works. The idea of ubi jus ibi remedium, which states
that where there is a wrong, there is a remedy, is the foundation of copyright
In cases of copyright infringement, the Appellate Board (in accordance with
Chapter II of the Copyright Act) may impose civil remedies and penalties (in
accordance with Chapters XII and XIII of the Copyright Act). Copyright protects
stated ideas rather than just ideas in thinking or work that has been published
(which also includes work that has not been shared in public since it may be
common or it may be similar to other ideas).
Academic research simply refers to
Original Literary Work protected by the Copyright Act when it is discussed. Only
"Original Literary" works are protected by this Act; copied works are protected
under the Copyright Act's infringement provisions. It provides protection
against threats outside of India's borders as well as from within. Computer programmes are also available (they were included following a 1999 revision),
allowing for the usage of tables, graphs, data, and chart flow.
In any career, writing and research are crucial. This is especially true for the
legal profession, as judges, attorneys, academics, researchers, and students all
regularly conduct and publish legal writing and study. However, many academics
frequently fail to take the necessary procedures to generate unique work or to
avoid copyright violations and plagiarism. The researcher has to have received
creative writing instruction in order to do it. A creative writing is not a
book, nor does it emphasise original ideas or concepts.
It all depends on how
the researcher approaches the available literature while writing up his own
research. As both creators/owners and users of copyrighted works, legal
researchers and writers have a dual function in their academic endeavours. They
have particular legal rights, obligations, and responsibilities while using
someone else's copyrighted work since they are creators and/or users.
As a result, they frequently run into copyright laws. Because copyright law
affects research, it is advisable to get familiar with it so that users can use
their rights as users as fully as possible without infringing on the rights of
This work uses doctrinal research methodology as its research technique.
The term "doctrinal methodology" describes a research that has been conducted on
a legal theory or theory utilising the power of reasoning to examine existing
statute provisions and cases. The study of doctrine is always based on secondary
data gathered from authorities. Although information might come from both
primary and secondary sources, doctrinal study never deals with the first-hand
knowledge of social reality that is discovered through surveys, fieldwork, or
any other empirical techniques.
Academic Research: What Is It? Literary Work is the term used to refer to
academic research under intellectual property law (under the Copyright Act,
1957). Literary works include computer programmes, tables, and compilations,
including computer databases, according to Section 2(o) of the Copyright Act of
1957. 2 According to Section 13 (1), academic research also involves unique
literary work (a).
In academic research, publishing is crucial since only
expressed works are eligible for copyright protection, and in academic work,
publication is the sole means of expressing ideas or thoughts. The major goal of
academic research is to make data, graphs, and literature accessible to the
general public, particularly to students for convenient access to study
The objective of Publication under the Act is to make work accessible
to the public by providing copies, according to Section 3 of the Copyright Act
of 1957. Authors in academic research might be solitary (single writers) or
collaborative authors. Due to the fact that the work is coauthored, it is always
regarded as one work and never as two different works. As an illustration, (Sole
Author) "A" published an article in x Magazine on a health-related topic. In
this instance, A will thus be regarded as the article's only author.
(Joint Authors) "A" and "B" made the decision to pen a book about x topic. In
this instance, A and B's contributions to the book will be regarded as
co-authors. Nobody may claim to be a book's sole author. In each of the
aforementioned scenarios, copyright must be used to protect both joint and sole
authors' works to prevent plagiarism and infringement claims on already-public
Expressed Original Literary
Work One of the most crucial components of academic research is original
writing. It involves creating test questions, research articles, and books (book
includes not only literature book but also Numerical books i.e., Mathematics
Publication of academic research becomes crucial since ideas alone cannot be
protected, making it crucial to publish research. Academic research's primary
goal is to publish its findings so that everyone may read them. Without
publishing, academic research would be useless.
The goal of publishing,
according to Section 3 of the Copyright Act of 1957, is to make a work
accessible to the general public by disseminating copies of it. The court said
in the case of University of London Press v. University of Tutorial Press that
"literary work" refers to any expression in print or writing, regardless of how
high the quality or style may be.
The court in the case of Shyam Lal v. Gaya Prasad
 stated: "The expression
"Literary Work" means not only such work which deals with any particular aspect
of literature in prose and poetry, but also indicates work which is literature,
i.e., anything in writing which could be said to fall within the ambit of
Publication of academic research becomes crucial since ideas
alone cannot be protected, making it crucial to publish research. Academic
research's primary goal is to publish its findings so that everyone may read
them. Without publishing, academic research would be useless.
The goal of
publishing, according to Section 3 of the Copyright Act of 1957, is to make a
work accessible to the general public by disseminating copies of it. The court
said in the case of University of London Press v. University of Tutorial Press
that "literary work" refers to any expression in print or writing, regardless of
how high the quality or style may be.
Academic research work cannot be published without a writer; hence an author is
required for publishing. An author may be either a solitary author or a joint
author. This is the individual whose work the Copyright Act protects. The
individual who only had the concept for the work is not to be regarded as the
author. Only the individual whose ideas were conveyed in the work will be
entitled to ownership.
In the case of Donoghue v. Allied Newspapers Ltd
court stated that if someone has an idea for a story, image, or play and shares
it with someone else, the output that results from the sharing of the idea is
protected by the copyright of the person who gave the concept shape.
Joint author refers to a piece of writing that has more than one author or, when
many authors collaborate on a single piece, is referred to as a joint author. A
work created by the collaboration of two or more writers in which the
contribution of one author is not distinguishable from the contribution of the
other author or authors is referred to as a "work of joint author" according to
Section 2 (z) of the Copyright Act of 1957.
In the case Najama Heptulla v. Orient Longman Ltd
., Maulana Azad, the
narrator, and Prof. Humayun Kabir, the author, collaborated on the book 'India
Wins Freedom'. Maulana Azad issued a directive in this matter stating that Prof.
Kabir may publish the remaining pages of the book up to 30 years, or on February
22, 1988, after his passing.
During that time, however, he might publish the
remaining 30 pages. After Maulana Azad's passing, Prof. Kabir negotiated a deal
with Orient Longman Ltd. on September 2, 1958, specifying that only the
remaining 30 pages would be released since those 30 pages would remain sealed
for 30 years in the National Archives and National Library.
The legal heir of Maulana Azad also claimed that all published and unpublished works of Maulana
Azad shall be inherited by them by providing the justification that they are the
legal heir, raising the question of who shall be the author of the book India
Win Freedom. In this instance, the court found that while though Maulana Azad's
legal heirs would receive all of his property, including any copyright-protected
works that have been published or unpublished, the work India Win Freedom is the
result of their close and active creative collaboration. As a result of the
collaboration between the two parties, no one will be the sole author of this
work; rather, it will be a joint effort.
Work Made In The Course Of Employment
In the event of employment, the employer will be the owner of the work;
nevertheless, any work produced independently of the terms of the contract will
be regarded the author's own creation, and he will be entitled to ownership.
According to Section 17(c) of the Copyright Act of 1957, in the event that a
work is created during the course of employment under an apprentice or service
contract, the employer shall be the initial owner of the work, absent a written
agreement to the contrary.
Nationality Of Author
The author's nationality is crucial for obtaining protection for their work,
particularly unpublished work. In order to be protected by the Copyright Act,
Section 13(2) says that I the author must be an Indian citizen even at the time
of death (it is irrelevant whether they passed away inside or outside of Indian
territory). (ii) The creator of an unpublished work at the time of creation must
have been an Indian citizen. The aforementioned prerequisite must be satisfied
in order for the author to be able to claim his work and get protection under
the Copyright Act of 1957, an Indian law.
Author's Moral Rights
The Copyright Act's Section 57 grants authors the right to defend their works
and prohibit unauthorised modifications.
The following are the rights:
- The "right of fatherhood" (Droit de paternite) refers to the author's ability
to assert his or her authorship of a work and to forbid others from doing the
same. The creator of this work has the right to request that his name appear in
the proper location. In addition, he has the power to stop others from citing
- The right of integrity (Droit de respect de l'oeuvre) protects the author by
allowing him to stop alterations to his work. to prevent alterations and usage
What Is Copyright?
Copyrights are a group of intangible property rights, sometimes known as
intellectual property rights. It safeguards the ideas of people's thoughts that
are expressed in works or executions of ideas rather than just concepts of
thinking (so that no one might replicate it), because they could also be similar
to other people's thoughts.
The Copyright Act of 1957 protects joint writers,
family members of original authors, and original authors themselves so that no
one else's work can be copied without their consent. If someone is determined to
have violated another person's rights, they will be punished in line with the
Act's provisions and given a civil remedy by the individual whose rights were
violated. Section 14 of the Copyright Act of 1957 defines copyright as an
exclusive right that covers literary works, computer programmes, creative
creations, cinematographic works, and sound recordings.
Features Of Copyright
There are three essential features which are as follows:
- Several Rights: Copyright combines many rights into a single right,
such as the right to reproduce, modify, and translate literary works. It
prevents others from coping with other people's tasks.
- Original Work: One of the most crucial aspects of copy right is
this. Section 13(1)(a) states that original literary, dramatic, musical,
and aesthetic works are protected by copyright. Work that is not covered
by copyright is discussed in Section 13(3) of the law. The utilisation of original work and labour was
determined to be necessary to obtain copyright in a work in the case of C. Cunnaiash and Co. v. Balraj and Co.
- Expression of idea: Copyright protects the expression of ideas, not
just the idea itself. For instance, Mr. A had intended to publish a book
on a certain subject that complemented Mr. B's concept. Mr. B released a
book on the subject. Therefore, since Mr. B put his idea into action, he
will in this instance be granted copyright protection.
"An concept, however bright or intelligent it may be, is nothing more
than an idea if it is not placed into any form of words or any kind of
expression like a picture or play," as was said in the case of Donoghue v. Allied Newspaper Ltd. An idea does not own any copyright unless it
is converted to writing or some concrete form.
The fairness theory and welfare hypothesis are essentially the two theories that
drive the copyright system. While welfare theory focuses on societal interests,
fairness theory is author-centric and promotes writers' rights by allowing them
the exclusive option to profit from their work.
The latter holds that for the
benefit of the general public, the writers' works must be made available to
society. Therefore, in addition to having a right to financial gain from their labour and creativity, authors also owe it to society to spread knowledge.
continuation of the copyright system, which will lead to the promotion of the
arts, sciences, and literature, depends critically on striking a fair balance
between the conflicting interests of society and the writers. The primary legal
procedure used to achieve this balance is known as "fair dealing" or "fair
Therefore, it is important for both writers and readers to be aware of
the extent of copyright protection as well as the restrictions on authors'
rights that primarily result from the fair use concept. The field of study and
writing heavily relies on this expertise. Therefore, the purpose of the current
essay is to examine important aspects of copyright law as they apply to research
Fairness Theory is author-centric, which promotes the rights of the authors, by
giving them exclusive opportunity to profit from their work; whereas
Welfare Theory focuses on the interest of the society. According to this theory
the works created by the authors must be made available to the society for
greater public interest.
Therefore, authors have a responsibility to the society�for the spread of
knowledge�along with the right to profit from their labour of love and creative
endeavours. The primary legal procedure used to achieve this balance is known as
"fair dealing" or "fair usage." The field of study and writing heavily relies on
Copyright Issues In Academic Research
Doctrine Of Sweat Of Brow:
- When we discuss the "doctrine of the sweat of the brow," we can see how much ingenuity is put into the task. This theory states that even a modest amount of creative effort is covered by copyright.
- Initially, the USA only offered protection for original work; this is known as the notion of the sweat of one's brow being rejected. The case in which the US court insisted on this theory was Feist Publication Inc. v. Rural Telephone Services Co. Inc. In this instance, the court noted that a work must be original in order to be protected by copyright. The term "original" in this context refers to simply author-created work that exhibits a basic level of inventiveness; novelty is not a need for originality. Work doesn't always take a lot of effort; simply a small improvement is adequate. In case of Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc. US Court stated that there are three requirements which is necessary to fulfil for qualifying Copyright Protection. They are as follows:
- (a) The collection and assembly of pre-existing data;
- (b) Selection, coordination or arrangement of the data;
- (c) The resulting work that comes into being is original, by virtue of the selection, coordination or arrangement of the data contained in the work So, we can say in USA creativity is essential element to get protected copyright.
- In the case of University of London Press v. University of Tutorial Press, the doctrine of the sweat of the brow was first used in the UK...
- According to Section 17 of Copyright Act,1957 except private research work in every other work owner or first author shall be person for whom work is done or under whom the work is done i.e., work in relation employer and employee, employer shall be the owner of work. Same is the case with Government work. If in case there is a contract which is contrary then the author shall be the owner i.e., employee not employer for his/her work.
International Copyright Issue In Academic Research:
- Since India is a signatory to both the Berne Convention and the Universal Copyright Convention, Section 40 of the Indian Constitution states that any work published outside the country must be handled as if it were originally published there. Therefore, even foreigners can publish their works inside of India. The only requirement is that the country in question must be a member state; otherwise, it will depend on a directive issued by the Central Government, which must not violate the provisions of the Indian Copyright Act or the law of the destination nation. In simple word we can say India grant Copyright protection to those country who is member of treaties or we can say to those country only who also provide copyright protection to Indian authors.
Infringement Of Copyright In Academic Research:
- A person is not allowed to duplicate another person's copyrighted work in any way, according to Section 52 Subsection (1) Clause (h). However, this provision also states that if somebody is duplicating someone else's work, it should not exceed two passages and that there must be a legitimate reason for doing so. In academic research projects, people are allowed to replicate others' work with proper citation, but only up to two passages must be used with genuine intent. If someone does not comply, it is deemed a copyright violation.
Fair Dealing Doctrine In India:
- It is acceptable to utilise any work, excluding computer programmes, for private or individual purposes, including study. Only private research is included in this study; no commercial research is included. If it is discovered that an author is exploiting research for profit, this will be seen as a copyright violation.
In the case of Rupendra Kashyap v. Jiwan Publishing House
, it was
determined that even though the book the publisher published may be used or be
intended for use in research or private study, the publisher would not be
eligible for the defence under Section 52 sub-section (1) clause (a) sub clause
I if the book was published with the intention of commercial exploitation.
Fair usage is referred to as "fair dealing" of the material. While the USA's
copyright law used the word "fair use," the UK's copyright law uses the term
"fair deal." Following the UK model, the Indian copyright legislation utilises
the term "fair dealing." Fair dealing is one of the limits and exceptions
included in the TRIPS Agreement of 1994.
According to Article 13 of the TRIPS
Agreement, members must restrict restrictions or exceptions to exclusive rights
to specific unique situations that do not interfere with the regular utilisation
of the work and do not unduly harm the right holder's legitimate interests. For
academic and research purposes, private study, and knowledge sharing, the fair
dealing theory is crucial.
Since the word "fair dealing" is not defined
elsewhere in the Indian Copyright Act, the judge must determine its scope on a
case-by-case basis, which is never an easy process. To assess whether a given
disagreement is a case of infringement or an instance of fair dealing, the
judiciary in India and overseas has devised several tests and theories.
To stay current with new breakthroughs and produce the next generation of
creative work, the academic community needs access to fresh information and
copyrighted content. Knowledge access is a fundamental human right. On the other
hand, the authors of content have a right to the protection of their economic
and moral interests in copyrighted works. These two rights must coexist in
harmony. A welfare law that attempts to strike a balance in this is the
copyright law. The copyright's exceptions and restrictions are designed to
safeguard the public's right to access the works and the spread of information.
Unauthorized use of another person's creation outside of the bounds of the law
is not considered to be a fair use. Fair dealing is a significant exception,
especially for non-commercial scholarly and educational pursuits. Users and
researchers should exercise considerable caution while using and exercising
copyright since it is based on an automatic protection provision under the Berne
Convention and no formalities, including registration, are necessary aside from
the minimum legislative requirements.
The academic community's researchers and
authors have a duty and obligation to safeguard their copyright in their
original works, and they also have a duty and responsibility to respect the
rights of those whose works serve as the foundation for their own innovation.
Academic integrity includes having to uphold the rights of authors and the works
they have produced. Academic honesty and integrity extend beyond the narrow
scope of legal copyright, and any violation of these principles constitutes both
an act of plagiarism and the demise of academic originality.
- The principle that where one's right is invaded or destroyed, the law gives a remedy to protect it or damages for its loss.
- 1916, 2 Ch. 601
- AIR 1971 All 192
- 1937, 3 ALL ER 503
- AIR 1989 [Del 63]
- AIR 1961 Mad 111
- 499 U.S. 340 (1991)
- 945 F.2d 509 (1991)
- 1996 (38) DRJ 81