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Rights Under Copyright

Copyright legislation is part of the wider body of law known as intellectual property (IP) which refers broadly to the creations of the human mind. IP rights protect the interests of innovators and creators by giving them rights over their creations. Sir John Salmond defined right as an interest recognized and protected by law1. The recognition of interest of authors or creators of work form the foundation on which the 'legal rights' of authors rest under copyright law.

An author produces literary, artistic, scientific or dramatic work or a cinematograph film or a sound recording with various aims and objective. These aims and objectives can be termed as his interest. In creating any work the author employs his time, energy, labour, skill, creativity, resources, mind, faculties, perception, ideology. The production of work by the author may be purely for self growth, self development and self satisfaction or for commercial gains.

The work may no doubt have a monetary value but it is also an extension of the personality of the author. The author expect and assumes that other will respect his work and not encroach on his personality by modifying, amending, distorting or mutilating his work in any manner that will affect his honor and reputation. This interest of the author in his personality forms the basis of the moral right of integrity of the author.

The work is the brainchild of the author and the author can be deemed to be the parent. He would not, therefore, like anyone else to claim authorship in his work. This interest lays the foundation for the moral right of paternity of author. The work created by the author is the property of the author. He, as an owner, has the exclusive right to reproduce, communicate, distribute, assign or alienate his work for economic or personal gain.

He alone has the exclusive right to commercially exploit his work. He alone has the right to reproduce his work in any manner, form or medium. This lays the foundation for the economic rights of author. On the other hand some people have opined that:
The right enjoyed by copyright owner is a negative one i.e. it is the right to prevent others from using his work in certain ways, and to claim compensation for the usurpation of that right2.
The author may need assistance of others in order to communicate the work in public. Those who assist the author to communicate the work to public spend time, energy, labour, skill and creativity therefore, their efforts need also be recognized and protected.

These communicators of work of the author are referred as the neighborsto the author and the rights, which emerge, to them are called neighboring rights. The international conventions recognize three such neighbors namely, producers of sound recording, performers, and broadcasting organizations.

The national statutes and international conventions include specific rights in the term copyright to avoid confusion and bring certainty. The term copyright appears to be singular but consists of three bundles of rights, these are Exclusive Economic Right, Moral rights, and Neighboring rights.

International Perspective

The Convention Establishing the World Intellectual Property Organization (1967) does not seek to define IP, but lists the following as protected by IP rights:
literary, artistic, and scientific works; performances of performing artists, phonograms and broadcasts; inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks, service marks, and commercial names and designations; protection against unfair competition; and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

The importance of protecting IP was first recognized in the Paris Convention for the Protection of Industrial Property (1883)3 (Paris Convention) and the Berne Convention for the Protection of Literary and Artistic Works (18864) (Berne Convention). Both treaties are administered by the World Intellectual Property Organization (WIPO).

Countries generally have laws to protect IP for two main reasons firstly, to give statutory expression to the rights of creators and innovators in their creations and innovations, balanced against the public interest in accessing creations and innovations; and secondly, to promote creativity and innovation, so contributing to economic and social development. IP is usually divided into two branches, namely industrial property and copyright.

US Perspective
In US law, the economic rights of copyright holders are listed in Section 106 of the Copyright Act: The U.S. Copyright Act grants six rights to the copyright owner, Subject to sections 1075 through 1226, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

  1. first right is to reproduce the copyrighted work,
  2. secondly, there is a right to prepare derivative works based upon the work,
  3. third, the right to distribute copies of the work to the public
  4. fourthly, the right to perform the copyrighted work publicly,
  5. fifth is the right to display the copyrighted work publicly and
  6. lastly in the case of sound recordings, to perform the copyrighted work publicly employing a digital audio transmission.

These rights are not without limit, however, as they are specifically limited by "fair use" and several other specific limitations outlined in the Copyright Act. The principle of exhaustion is dealt with in Article 6 of the TRIPS, under General Provisions and Basic Principles. According to the exhaustion principle, once the intellectual property rights holder has sold a product to which its IPRs are attached, he cannot prohibit the subsequent resale of that product, as his intellectual rights in that product are said to have been 'exhausted' by such sale. This is also known as the First Sale Doctrine, especially in the United States.

Indian Perspective

Copyright is a bundle of rights consisting of Exclusive Economic Rights, Moral Rights & Neighbouring Rights. The scheme in of the Indian copyright act 1957 concerning different kinds of rights is under:

  1. Economic Rights

    Economic rights are those rights which help the author reap economic benefits9.As per Section 14 of the Copyright Act, 1957(14 of 1957), different rights are recognized for the works considering its nature. The section provides that it is the exclusive right of the author to do or authorize the doing of the acts provided thereunder. The important rights generally recognized by all types of works under the Indian statute that attracted much judicial interpretation include reproduction rights, right of distribution, and right to communicate work to the public.

    1. Right of reproduction:

      According to sec14(a)(i) of the Copyright Act, 1957(14 of 1957)10Copyright owner in a literary, dramatic, musical, artistic, cinematograph film and sound recording work has an exclusive right to reproduce the work or authorize the reproduction of work in any material form.The amendment of 2012 remove the lacunae as the initially right to store in any electronic means was not given under sec14(c)(i)of the Copyright Act, 1957(14 of 1957). The author of an artistic work has the exclusive right to reproduce the work and it includes its conversion from two dimensional to three dimensional and vice-versa11.

      This right has been elaborately dealt by the Delhi High Court in Escorts Construction Equipment Ltd & Anr vs Action Construction Equipment Pvt Ltd & Anr.12 The claim of the plaintiffs was that the defendants' Pick-N-Carry Hydraulic Self Mobile Cranes is the three dimensional reproduction of the drawings for which the plaintiffs have copyright protection. The Court after referring to Section 14(c)13 observed thus 'Needless to say industrial drawings are produced by skilled draughtsman.

      Some of the drawings incorporate standard parts such as engine or a gearbox in common use, but even in those drawings there is ample knowledge, labour, judgment and skill. The drawings used in the design of the crane were reproduction of the original artistic work. Those copies of drawings were, in turn, used to manufacture parts of the crane. Those parts manufactured are again reproduction of the original artistic works.

      A reproduction of an artistic work includes a version produced by converting the work into three dimensional forms. Such drawings are capable of being infringed by copying of a three dimensional article. 'Based on the above reasoning, the Court held that the defendants have violated copyright of the plaintiffs in their industrial drawings and granted an injunction in favour of the plaintiff14.

      The point of interest is that through this judgment, the Delhi High Court has, with the help of the Copyright Act, prevented manufacture of machinery. The object of copyright protection is to protect creativity of the author and to ensure that no one other than the author commercially exploited this creativity.

      It was never within the ambit of copyright law to prevent manufacture of any commodity. This confusion probably arose due to the literal interpretation followed by the Court without considering either the intention of the Legislature or the consequences of the decision, in practical terms.

      It is true that designs are artistic works. But designs are of different types and which of these has to be protected under the copyright regime is a thought-provoking issue. The Act has also not made any difference between the drawings that have an aesthetic value and that are purely functional in nature. But there exists a separate legislation for the protection of designs, the Design Act, 2000.

      It has defined the term design and those which come within that definition ought to be protected under that legislation and all drawings other than those that can be classified as fine arts will come within the purview of this legislation. Section 2(c)15i.e. of the Copyright Act gives the impression that drawings that are functional in nature are beyond the purview of the Act.

      Similar rights are also conferred with authors of cinematograph films. They are vested with the exclusive right to make copy of the film as per Section 14(d) (i) of Copyright Act16. The right of reproduction is not given to copyright owners of cinematograph films and sound recording but the right to make a copy is given. Although the act neither provide for the definition of reproduction or copy nor the difference between the same.

      The Act has neither defined the term 'reproduction' nor the term 'copying' nor has it laid down the difference between these two. The terms 'reproduction' and 'copying' have been used simultaneously though reproduction encompasses a wider range of acts. It was held by the House of Lords in Ladbroke Ltd vs William Hill Ltd17 that reproduction means copying, and does not include cases where an author or compiler produces a substantially similar result by independent work without copying. It must also be noted that to constitute reproduction, copying need not be in to; even substantial reproduction will amount to reproduction.

      Reproduction also means making a copy in a different form, even if such copy is not easily perceptible. Under the Act, the right to reproduction of literary work also includes storing it in electronic form. This essentially means that storing into a computer or compact disk will amount to the reproduction, even though the copy is in a different form when compared with the original. It is important to note that the law is silent on the nature and duration of storage to constitute reproduction.

      The duration for which a copy should be retained in order to constitute a violation of the rights of the lawful owner has yet not been decided at the international level. The States are free to decide the time duration of retaining of copyrighted work that will qualify as reproduction so as to constitute a violation. On the closing of the Conference, US proposed inclusion of a statement which suggested that the reproduction right guaranteed under Article 9 of the Berne Convention18 along with its exceptions shall apply in the digital context too.

      It must be noted that India is not a party to WIPO Copyright Treaty. At the same time, the Copyright Act, 1957 includes storing of any information in the electronic medium without defining the term 'copy'. In short, what duration of time will constitute copying under the Indian Act is not clear from the statute.

      What all acts will amount to making a copy of the cinematograph film has been dealt by the Bombay High Court in the case Star India Private Limited vs Leo Burnett (India) Pvt ltd19. Here the plaintiff was the owner of the cinematograph film titled Kyun Ki Saas Bhi Kabhi Bahu Thi. The defendants made a commercial film under the title Kyun Ki Bahu Bhi Kabhi Saas Banegi with similar characters being played by the same artists.

      The question which came for the consideration before the court was whether the commercial film made by the defendants is a copy of work of the plaintiff. The Court here pointed out that the rights guaranteed under Section14 (a) (b) and (c) and that under Section14 (d) and (e) are of different degree20. The exclusive right in the former is to reproduce the work in any material form while the exclusive right conferred in the latter is to make a copy of the respective subject matter.

      It is this difference in the wordings of the provisions that resulted in the differential interpretation of the provision.Consequently production by another person of even the same cinematograph film will not constitute an infringement of copyright of the first film. The term 'to make a copy' of a film would mean to mean a physical copy of the film itself and not another film which merely resembles it.

      If the second film has been filmed or shot separately and even if it resembles the first film, it is not the copy of the first film and therefore does not amount to infringement. The Court relied on and other where it was held that for a second film to infringe copyright in the first film, it has to be an actual copy of the first film.

      To prove Infringement of right of reproduction plaintiff must have to establish that the defendant reproduced the entire work or substantial part to succeed in a copyright action. There is no copyright on idea.

      For eg: when a novel idea is converted into a concept note and submitted to television channels for making a TV programme then the concept note is protected under copyright law.

      In Microsoft corporation vs Nimesh 21 defendant were loading software programme of Microsoft on to branded computers without taking authorization from them and selling the computers with unauthorised computer programs to the costumers. It was held that the defendants infringed right of the owner of copyright.
    2. Right of Distribution

      Apart from the right to reproduce the work, the author is also vested with the right to distribute the work. It is the right to put copies of the copyrighted work into the commercial market22i.e. it relates to the control over dissemination of actual physical copies of the work. The scope and extend of this right is not uniform i.e. it differs with the work. Once copies are in circulation the right no longer exists i.e. the right gets exhausted.

      The principle of exhaustion is dealt in Article 6 of the TRIPS23, under General Provisions and Basic Principles. According to the exhaustion principle, once the intellectual property rights holder has sold a product to which its IPRs are attached, he cannot prohibit the subsequent resale of that product, as his intellectual rights in that product are said to have been 'exhausted' by such sale 24.This is also known as the 'First Sale Doctrine', especially in the United States.

      Exhaustion can be of three types:
      1. National exhaustion- where the author loses the right to control the re-sale of the product in that particular nation. 25
      2. Regional exhaustion- where the author loses the right to control re-sale of the product over a specified region but can exercise such right beyond such region.
      3. International exhaustion- where the author loses the right to control re-sale of the product anywhere in the world after the first authorized sale.

        If anyone other than the copyright owner issues the work to the public without the authority of the owner, then he is an infringer of this right but if he reproduces the published work without the authority of the copyright owner the he violates other rights of copyright and not the right to issue copies to the public. For eg: A has already sold the copies of his work in the market and B subsequently markets pirates copy of A's work. B has infringed the right of reproduction of A and not the right to issue copy to the public.

    3. Right to Communicate Work to the Public:

      The exclusive right to do this vest with the author, irrespective of the nature of the work. Change in technology has brought change to the nature of communication and also to the notion of 'public 26'. This has enabled basically three kinds of communication, such being public performance, being carried on in the presence of an audience, transmission through cable network and also wireless broad casting.

      And the right to communicate the work through all these means vests exclusively with the author. To understand the ambit of this right it is necessary to understand the meaning of the words communication and public. The Section 2 (ff) of the Copyright Act, 195727 has defined the term Communication to Public to mean making the work available to the public for their enjoyment, irrespective of whether they actually enjoy it. This it appears is intended to cover transmission over computer network. The Act has specifically provided that communication through satellite and other cable means will also come within the purview of communication to public.

      The Bombay High Court through its judgment in Garware Plastics and Polyester Ltd, and others vs M/s Telelink and others 28 tried to bring out the meaning of the term communication to public. In this case the plaintiffs were producers of cinematograph films and the defendants were cable operators who telecasted those films, for a prescribed fee, without authorization of the plaintiff which was challenged by them as violating their right under Section 14 of the Copyright Act, 1957 29.

      The question before the Court was whether the act of the defendants would amount to communicating the plaintiffs work to public. The Court brought out a test to find out what would amount to communication to public and held that the criteria to decide it are:
      • Character of the audience and whether it can be described as public or private,
      • The audience is private or public in relation to the owner of the work,
      • Whether permitting such performance will cause monetary loss to the owner of the work which he ought to gain out of the exploitation of his intellectual property.

      Interpreting the term 'Public', the Court held that though the people who receive broadcast are either residents of apartments in a building which has the network or residents of the locality, they cannot be treated as members of the same household or family and consequently their relation with the owner of the work is of public nature. Moreover, the defendants were collecting certain amounts as fees which the plaintiff ought to have got and thereby causing loss to him of what he is lawfully entitled to.

      Considering all these, the Court held that the defendant violated the plaintiff's right to communicate his work to the public guaranteed under Section 14 of the Copyright Act30.With the coming into of Internet, the notion of communication and public has changed considerably. It has provided facility for public at different parts of the world. A person can enjoy the work not only at the same time but any time when he wishes to enjoy such work.

      This has led to the recognition of this right in the Internet context, specifically, through the WIPO Copyright Treaty (WCT) 1996. As per Article 8 of WCT31, the authors of literary and artistic work will have the exclusive right to authorize communication of the work to the public 'in such a way that the members of the public may access these works from a place and at a time individually chosen by them.'

      This is also called 'on-demand availability right.'the Copyright Act specifically never dealt with the issue of on-demand availability right till now. But when looked into the definition of 'communication to public' which uses the terms 'making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available as per Section 2 (ff) of the Copyright Act , 1957 32.

    4. Right to make cinematograph film or sound recording in respect of work

      A literary, dramatic or musically work may be reproduced in the form of cinematograph film or sound recording only with license granted for the purpose by the owner of the copyright in the work.

      But if cinema or sound recording is made with such license, an independent copyright subsists in cinema or sound recording as a protected work under the act. The Bombay HC Indian express newspaper (Bombay) Dr. Jagmohan Mundhara 33 held that there cannot be a copyright in an event which has actually taken place. In this case its been its said that there is a difference between simple reporting of an event and reporting after daring and risky investigation of the facts.

      In the case the attempt of journalists should be treated as his autobiographical expression where he alone has copyright. Since the producer of the film had made the film in respect of the work therefore, it in the opinion of the author amounts to infringement of the copyright of the journalist. Once a sound recording is made, its only the producer who is the owner and only he can exploit it exclusively in manner provided in sec 14(1)(e) of copyright act 34.
    5. Right to make translation of the work

      Translation means reproducing the work or expression of work in a language other than that of the original version. In order to translate a work protected by copyright authorization of copyright owner is required 35but the translation also enjoy copyright without prejudice to the original authors.

    6. Right to make adaptation

      Adaptation is usually understood to involve adapting a pre existing work from one medium to another or reproducing the work in another medium or alteration to work in the same medium. adaptation means:
      1. in relation to a dramatic work, the conversion of the work into a non-dramatic work;
      2. in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;
      3. in relation to a literary or dramatic work, any abridgment of the work or any version of the work in which the story or action in conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;
      4. in relation to a musical work, any arrangement or transcription of the work
      5. in relation to any work, any use of such work involving its rearrangement or alteration

    7. Right of distribution

      Distribution right (resale and rental right) the right of distribution is the right to authorize the public of copies of a work. Distribution of work can be y sale,lease, rental, lending,any transfer of ownership or possession of copies of work.

      In India in the case of literary work (including computer programme), dramatic,musical or artistic wok to the public not being copies already in circulation36.
      The rental right did not find universal favour with countries, therefore, the WCT carved out specially tailored exceptions from its rental right. In case of computer programmes, the rental right need not apply where the programme itself its not the essential object of the rental.37 The Indian Copyright Act,1957,has provided a similar exception.

  2. Moral Rights

    Moral rights are the English translation of the French phrase Droit moral. They are in addition to the economic rights, and they are inalienable. Moral rights safeguard personal and reputational rights, which permit authors to defend both the integrity of their works and the use of their names Section 57 of the Act Independent of the author's copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the special right:
    1. To claim authorship of the work; and
    2. To restrain or claim damages in respect of any distortion, mutilation, modification or other act about the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honor or reputation.

    In addition to the protection of economic rights, the Copyright Act also protects moral rights of the author. Moral rights flow from the fact that a literary or artistic work reflects the personality of the creator, just as much the economic rights reflects the author's need to keep body and soul together38. Article 6ibs of the Berne Convention directs the member States to protect the moral rights of the author.

    Article 6ibs Independent of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, modification of, or other derogatory action in relation to the said work, which would be prejudicial to the author's honour or reputation According to David Bainbridge, there are four rights within the moral right designation being. The right to be identified as the author of work or director of a film, the 'paternity right.

    'The right of an author of work or director of a film to object to derogatory treatment of that work or film, the integrity right. A general right that every person has not to have a work falsely attributed to him The commissioner's right to privacy in respect of a photograph or film made for private and domestic purposes.

    The paternity right may also be called the identification right or attribution right. Along with these rights, the author has also got the economic right to sell the works for a valuable consideration.

    The rationale behind moral right was also explained in the case of Amar Nath Sehgal vs. Union of India 39 In which the Delhi High Court held that In the material world, laws are geared to protect the right to equitable remuneration. But life is beyond the material. It is temporal as well. Many of us believe in the soul. Moral rights of the author are the soul of his works. The author has a right to preserve, protect and nurture his creations through his moral rights.

    Modified form of work should look different from the original Once the author's rights are transferred, the licensee has a right to make certain necessary modifications to suit his situation, but the modifications shouldn't be in such a way that the modified form looks quite different from the original which may affect the reputation of the author. In the case of K.P.M Sundaram vs. Rattan Prakashan Mandir 40 It was held that the words or other modification appearing therein, will have to be read ejusdem generis with the words distortion and mutilation.

    The Court stated that the modification should not be so serious that the modified form of the work looks quite different from the original.Moral rights remain with the author even after transferIn the case of Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr 41, The Delhi High Court has held that:
    These rights (moral rights) are independent of author's copyright and the remedies open to the author under Section 5542. In other words, Section 57 43 confers additional rights on the author of a literary work as compared to the owner of a general copyright. The special protection of the intellectual property is emphasized by the fact that the remedies of a restraint order or damages can be claimed: even after the assignment either wholly or partially of the said copyright.

    Thus even though an author may sell his economic rights to a publisher for publication, the moral rights shall remain with him which cannot be taken away from him.Can Moral rights be waived off? Previously moral rights were treated like that of fundamental rights to an individual as they are not merely for the benefit of the individual but as a matter of public policy, for the benefit of the general public.

    But the single judge bench of the Delhi High Court in the case of Sartaj Singh Pannu vs Gurbani Media Pvt Ltd & Anr 44 in relation to whether the Director can also waive his moral right if any to be acknowledged as the Director of a film, held that:
    the Court is not prepared to go as far as to deny the right of a Director to waive his right to be credited as such if for any reason he does not want his name to be associated with the film. As long as the waiver is voluntary, it cannot be said to be opposed to public policy.

    Thus after this decision, the moral rights can be waived by the author if he wants to.

  3. Neighboring Rights

    1. Broadcasting Rights in India

      the broadcasting organisation is conferred with Broadcasting Reproduction Rights wherein the organisation is conferred with a series of rights in respect to the broadcast made namely,
      1. reproducing the broadcast;
      2. causing the broadcast to be heard or seen by the public on payment of any charges;
      3. making any sound recording of visual recording of the broadcast;
      4. making any reproduction or such sound recording or visual recording where the initial recording was unauthorised;
      5. selling or hiring or offering for sale or hire to the public any such sound or visual recording.

        Following the operation of Section 3745, the performance of any act as under (a) to (e) shall require a license of the broadcasting organisation or else the act shall be treated to be a violation of copyright. However exceptions to the same have been provided in Section 3946 of the Act.

        These exceptions can be broadly categorised as;(a) for private use, (b) for purposes of bonafide training or research,(c) for reporting of current events (here it is to be noted that only excepts of such broadcast are allowed to be used under this exception), and(d) general exceptions as provided under Section 5247 of the Act.Further, Section 39A48 extends the general provisions under the Act to broadcasting.

        Super Cassettes Industries Ltd. v. Entertainment Network (India) Ltd
        .49 in this case the Appellant, a music company, challenged the direction of the Copyright Board directing the Registrar of Copyrights to grant a compulsory licence to the Respondent, a leading FM (Radio Mirchi) broadcaster, to broadcast the songs the copyright in which was owned by the Appellants when in a legal battle the Respondents had accepted that there was a violation on their part in broadcasting the songs.

        It was held that:
        1. Since the respondent has not obtained any authorization or license to broadcast the songs from the appellant, it was an infringer and granting compulsory license under Section 31 to such infringers would be like putting premium on their defaults which would also encourage others to first infringe and where infringement was discovered, apply for a compulsory license. Therefore such could not be allowed.

        2. Since Section 31(1)50 employs the term 'may', its not mandatory for the Board to grant license to each and every applicant. Thus a licence can be granted or denied on valid grounds. However Section 31 envisages that the decision to grant or refuse license should be made after holding sufficient inquiry.

        3. While making an order under Section 31(1) the Board has to maintain a delicate balance between private rights of the copyright under public interest Video Master v. Nishi Productions51The Plaintiff claimed that the sole and exclusive video copyrights in a cinematographic film [Bees Saal Baad] were assigned to it under an agreement by the producer of the film i.e. the Defendant.

        It alleged that the Defendant had entered into an agreement with another distributor whereby a copy of the film was given to them, which in turn was used to make cassettes which were to be used for satellite TV transmission.

        Thus a violation of the copyright of the Plaintiff was alleged. It was held that:
        1. Copyrights in Cable TV rights and satellite broadcasting rights are two different rights under the Copyright Act, which can exist in different persons without infringing copyright of each other.
        2. By receiving satellite signals on dish antenna owned/maintained by Cable TV operator or private party and by relaying signals through media of Cable to the viewers, there was no violation of the exclusive video copyright of the Plaintiff.

    2. The rights of performing artists in their performances of literary and artistic works are in general covered by the concept of related rights. If the rights provided by copyright apply to authors, related rights, also known as neighboring rights concern other categories of owners of rights, other than the author.

      The performances of actors, singers, musicians and dancers are an integral part of the creative process in presentations to the public. Since the very first performance recordings, in sound and images, it has been accepted that performers should have some rights over those recordings and a share in the proceeds from their commercial exploitation.The interest of every performing artist is not limited to purely monetary compensation for the work he or she has undertaken.

      One's economic rights over his or her work exist independently of his or her personal rights. Section 2(qq) provides us with performers definition, it include actor, singer, musician, dancer, juggler, snake charmer, a person delivering lecture or any other person who makes performance. In the moral rights context, whoever attacks a particular work, is actually attacking the honour and the reputation of its creator.

      Actors, singers, comedians, dancers and musicians come into the public's eye by virtue of their work. But with utter confidence, many performers would declare that financial rewards are not their paramount motivation for doing what they do best. Theirs is still a world of sacred honour, where name and reputation precedes money in terms of importance.

      Their performances are seen as extensions of their personality and thus, they need to be assured that they exercise a certain degree of control over their respective works. They must at least be assured that their names are properly recognized in relation to the performances they have made. And more importantly, since their name and reputation is at stake, they must be given the right to prevent others from modifying their performances in a way which will offend their integrity.

In order to ensure a full and effective participation in public life and to lead a better life access to information and knowledge is a must. In a welfare State it is the duty of the State to ensure that there is dissemination of knowledge and information to such an extent that it benefits all. At the same time it is the duty of the State to protect those intellectual labours which is the root cause of this information. This balance is being ensured with the help of copyright law.

But we can see that the current Copyright Act is not adequate to deal with the needs of the changing society. The influence of Internet is rampant and so are the problems it creates, relating with copyright. The current Act is incompetent to deal with this scenario. Just because to date no such issue has come before any Indian Court it would be foolish to believe that it will never come or wait till the date when such issues actually come.

Internet should not be looked upon as a problem creator, instead it must be seen as the most preferred means for the dissemination of information and rules must be drafted in such a manner so as not to prejudicially affect free access. From the cases discussed it can be inferred that the courts have always taken a pro-author attitude. The courts have in most situations widened the ambit of the rights guaranteed by the Act and in most cases have gone much beyond the philosophy of copyright protection and intention of the legislature to grant protection to authors of the work. In certain cases it seems to be just though in most cases it is not so.

The courts while giving most judgments in favour of authors seems to forget the social implications such judgments can have. The court which is supposed to strike a balance between the rights of authors and public interest can be seen, in certain cases, as the cause for upset of the existing balance.

The reason for this fluctuating stand by the judiciary is, for sure, the gaps in the law. It is high time for the legislature to act and bring in changes to the existing law, especially in the situation of changing technology. The amendments proposed in 2006 seem to be a positive step bute it is not adequate to deal with the change.

End Notes
Primary source:

  • Copyright Act, 1957
  • Copyright, Designs and Patent Act,1988
  • US Copyright Act,1976
  • The Design Act, 2000

Secondary Source:
law of copyright -Alka Chawla; David Brainbridge, Intellectual Property, 5th Ed.(2002) Pearson Education London, p.97 ;Intellectual Property Rights and Law by Dr. G. B. Reddy ;
law relating to intellectual property rights by VK Ahuja (3rd edition)

Web Sources:

  • yright_Law_Some_Emerging_Judicial_Trends


  1. John salmond,jurisprudence(London;sweet and maxwell,12th ed.,by P.J.Fitzgerald,1966)
  2. Hugh Laddie, THE MODERN LAW OF COPYRIGHT (London,1980),p.45.
  3. Paris Convention for the Protection of Industrial Property (1883)
  4. Berne Convention for the Protection of Literary and Artistic Works (1886)
  5. US Copyright Act of 1976
  6. Sterling J A L, World Copyright Law (Sweet & Maxwell, 100 Avenue Road, London NW3 3PF), 1998, p.279
  7. Section 14(a) of the Copyright Act, 1957
  8. Section14(c) (i), Copyright Act, 1957.
  9. Escorts Construction Equipment Ltd & Anr vs Action Construction Equipment Pvt Ltd & Anr.1999 PTC 36 (Del.), p.48,49.
  10. Section 14(c)Copyright Act, 1957.
  11. Cont.Escorts Construction Equipment Ltd & Anr vs Action Construction Equipment Pvt Ltd & Anr.1999 PTC 36 (Del.), p.48,49.
  12. Section 2(c)i.e. of the Copyright Act 1957
  13. Section 14(d) (i) of Copyright Act
  14. House of Lords in Ladbroke Ltd vs William Hill Ltd [1964] 1 All ER 465, 469. (27)PTC81(Bom) p 94
  15. Article 9 of Berne Convention for the Protection of Literary and Artistic Works (1886)
  16. Star India Private Limited vs Leo Burnett (India) Pvt ltd2003(27) PTC 81 (Bom.), p.94.
  17. Section14 (a) (b) (c) (d)and (e) of the copyright act 1957
  18. Microsoft corporation vs Nimesh 2012(51)PTC205(Del)
  19. Lionel Bently & Brad Sherman, Intellectual Property Law (Oxford University Press, YMCA Library Building, Jai Singh Road, New Delhi 110 001), 2003, p.130
  20. Article 6- Exhaustion–'For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights'
  21. Ganguli Prabuddha, Intellectual Property Rights- Unleashing the Knowledge Economy (Tata McGraw-Hill Publishing Company Limited, 7 West Patel Road, New Delhi 110 008), 2001, reprint 2003, p.254.
  22. As per Section 2(ff) 'communication to the public' means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available
  23. Section 2 (ff) of the Copyright Act, 1957
  24. Garware Plastics and Polyester Ltd, and others vs M/s Telelink and others AIR 1989 Bombay 331.
  25. Section 14 of the Copyright Act, 1957
  26. The Court formulated this test by a combined reading of many cases including Harms (Incorporated) Limited v Martans Club Limited (1927) 1 Ch.526, where it was held that the purpose of this right was to protect the author from injury or loss of profit by reason of any representation of his composition in public which would have ordinarily fetched him financial gain, Jennings v Stephens (1936) 1 Ch. 469, where it was held that the true criterion was the character of the audience. if the audience considered in relation to the owner
    of the copyright mat properly be described as the owner's public or part of his public, then in performing the work before that audience, he would be exercising the statutory right conferred upon him and Ernest Turner Electrical Instruments v Performing Rights Society (1943) 1 Ch.167, where the Court applied a test which took into consideration the character of the audience, their relationship between the owner of the copyright and the impact of the performance on the value of copyright or the loss of profit which would otherwise have accrued on the owner.
  27. Article 8of WIPO Copyright Treaty (WCT) 1996
  28. Section 2 (ff) of the Copyright Act , 1957
  29. Indian express newspaper (Bombay) vs Dr. Jagmohan Mundhara AIR1985 Bom 229.
  30. sec 14(1)(e) of copyright act 1957
  31. Berne convention,(Paris Act,1971)appendix,Article2;section 32 of copyright act,1957
  32. Copyright act,1957 section 14a(ii), b(i) and c (ii)
  33. WIPO Copyright Treaty ,article7(2)
  35. Amar Nath Sehgal vs. Union of India 117 (2005) DLT 717, 2005 (30) PTC 253 Del
  36. K.P.M Sundaram vs. Rattan Prakashan Mandir AIR 1983, Delhi 461
  37. Mannu Bhandari v. Kala Vikash Pictures Pvt. Ltd. and Anr AIR 1987 Delhi 13, ILR 1986 Delhi 191
  38. Section 55of the Copyright Act, 1957
  39. Section57 of the Copyright Act, 1957
  40. Sartaj Singh Pannu vs Gurbani Media Pvt Ltd & Anr
  41. Section37 of the Copyright Act , 1957
  42. Section39 of the Copyright Act , 1957
  43. Section52 of the Copyright Act , 1957
  44. Section39A of the Copyright Act , 1957
  45. Super Cassettes Industries Ltd. v. Entertainment Network (India) Ltd.
  46. Video Master v. Nishi Productions1998 (3) Bom CR 782

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