Copyright

Copyright

Copyright protects creative expression.

An Protection arises automatically; as soon as work is created
exclusive • Proof of copyrightability is only when infringing act is questioned suit of
protection infringement is filed.
• Bundle of rights recognized under protection
for original • Exclusive right-monopolistic advantage
work created • Can be transacted on
Section 14 (bundle of rights)
“in a fixed
Section 16 (limitation of protection)
tangible
medium”*.
Fixation*
No requirement under the Act, but under Copyright Manual

Right arises automatically when work fixed in a tangible medium or material form

The work must be embodied in a copy which allows it to be seen or copied by others (primitive understanding of “expressing” an
idea).

Serves as evidence and work may be accessible for longer (even beyond lifetime of author)

Section 2, Article 2 (Berne Convention)- “It shall be a matter for legislation in the countries of the Union to prescribe that works in
general or any specified categories of works shall not be protected unless they have been fixed in some material form,” (Spain,
France, Australia don’t) (UK, US, Canada do)
 Fritz v. o Robert Fritz and Charles Kiefer met in 1976. Both
Arthur D. were engaged in the preparation and teaching of
courses that focused on personal enhancement, and the
Little, Inc., enhancement of team performance.
o Fritz was the sole proprietor of Dimensional Mind
944 F.Supp Approach Inc., while Kiefer was the sole proprietor of
Innovation Associates.
95 (1996) o K paid F, as a subcontractor, to teach a course at IA.
o F made some contributions to the course while
teaching, which were entirely verbal. K attended his
lectures and wrote updated versions of the course
incorporating F’s extemporaneous contributions.
o Issue- Whether F has any ©?
o Held- K’s notes will be independent creations based on a
non-copyrighted source.
o Source of the allegedly infringing materials was not fixed
in any tangible medium of expression. Original words
spoken aloud can be copied (and independently ©), if
they have not previously been fixed in a tangible medium
of expression.

• Does the fixation requirement have any disadvantage?

• Protection of oral traditions of indigenous people
might pose a challenge.
• Restrictive and non-uniform requirement- Improv music,
speeches, live art, live performances, etc. Hence moving
away from requirement.
Nature of protection

Life of author + Protects only

Long-lived but 60 years (© Act, expression and
narrow 1957) not the
underlying idea
 Instance of Protection (Pre-requisites)

(when is the work

protected)

Falls within the

category of Must not be
Must be recorded excluded on public
protected works in a material form Must be original
policy grounds.
under the Act
Subject matter

“Work” (original/creative and fixed) is the subject matter

of copyright

Section 2 (y)-
Literary, dramatic, A cinematographic A sound recording
musical or artistic work film
Disclaimer

- An object may embody a number of copyrighted works

- British law identifies all subject matters as ‘works’ while civil law jurisdictions like
France have the concept of ‘Author’s rights’ (literary, dramatic, musical, artistic),
‘neighbouring rights’ or ‘entrepreneurial works’ or ‘related rights’ (sound recording,
broadcast, performers).
- Is this an exhaustive list? So far it has been but courts have tried to fit everything they can
within the contours of these categories itself.
Section 13

• (subject matter of copyright under Indian copyright law)

- 13 (1) Protects subsists within 3 broad categories-

o Original literary, dramatic, musical and artistic works;
o Cinematograph films; and
o Sound recording
o (Broadcasts and published editions/typographical works)
When does Indian Copyright Act protect?

- 13 (2) Provided that-

o Published work- first published in India or at the time of first publication, author a
citizen of India
§ Section 2(ff) and 3- making work available for public enjoyment regardless of
whether actually enjoyed by public
§ Section 4- valid publication only with permission of the owner
§ Section 5- work deemed to be first published in India
o Unpublished work- at the date of making, author a citizen of India or domiciled in
India
§ Exception- work of architecture
o Works of architecture protected if work is located in India
- For joint authorship- ALL authors have to satisfy the conditions of the section
Foreign Works

- Chapter IX
- Central government can extend protection to FW by order published in Official Gazette
- Works of countries mentioned in International Copyright Order protected as if Indian
Works.
- Protection varies depending on- published/unpublished works, domicile of author,
bilateral treaties, etc.
- Four disclaimers under 13(3)
o Derivative works
§ A work based upon one or more pre-existing works, such as a translation, musical
arrangement, dramatization, fictionalization, motion pictures, sound recording, art
reproduction, abridgement, condensation, or any other form in which a work may
be recast, transformed, or adapted.
§ A derivative work may have its own ©, provided it is sufficiently original.
§ The work may be based on another © work, or on a work that is in the public
domain.
§ © in the derivative work applies only to the new creative expression, not to
elements copied from the underlying work.
Idea- Expression Dichotomy
- Ideas per se are not copyrightable; only their manifestation or expression (implementation of
the said idea) is.
- The doctrine allows for several expressions to be available for the same idea.
- Baker v. Selden, 101 U.S. 99 (1879)
o Selden had written a book which described an improved system of book keeping by a
particular arrangement of columns and headings which made the ledger book easier to
read.
o Baker accomplished a similar result, but using a different means of arrangement of
columns and headings.
o The court held that while a copyright may exist over the publishing and sale of a book, it
does not extend to the ideas and “art” (of book keeping) illustrated in the book.
Merger Doctrine
o Idea and expression merge- when there is only way to express an idea
§ For example, an algorithm to add two numbers
o Copyright cannot exist in such a case
o Granting copyright over the expression will effectively confer the owner with a
monopoly over the idea itself
o Grant of such a broad monopoly will be against public good
o Scenes a Faire- instances where the expression of an idea cannot be made without the
use of certain elements, such that the idea cannot exist without those elements or form
of expression. Example- themes commonly linked to a particular genre; “stock
characters”.
Nichols v. Universal Pictures Corp., 45 F.2d 119

• The plaintiff, wrote a humorous play about a young Jewish man marrying an Irish Catholic girl against the wishes of both of their
fathers.
• The defendant produced a humorous film based on a play about an Irish boy who marries a Jewish girl from feuding families.
• Plaintiff sues defendant for infringement.
• “Upon any work, and especially upon a play, a great number of patterns of increasing generality will fit equally well, as more and
more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at
times might consist only of its title; but there is a point in this series of abstraction ns where they are no longer protected, since
otherwise the playwright could prevent the use of his "ideas," to which, apart from their expression, his property is never
extended.”
• “There is no monopoly in such a background. Though the plaintiff discovered the vein, she could not keep it to herself; so defined,
the theme was too generalized an abstraction from what she wrote. It was only a part of her "ideas."
• Held: no infringement; the ideas that were copied were stock characters. The defendant has not taken from her more than their
prototypes have contained for many decades.
RG Anand v Delux Films AIR 1978 SC 1613

• Copyrighted work of the Plaintiff- a drama called 'Hum Hindustani’; written in Hindi on the theme of
provincialism, became very popular in Delhi, Calcutta and across.
• The plaintiff's case is that some time about January, 1955 the second and the third defendants came to
Delhi, met the plaintiff to discuss the possibility of filming the play. The second defendant did not make
any clear commitment but promised the plaintiff that he would inform him about his reaction after reaching
Bombay. Thereafter the plaintiff heard nothing from the defendant. Sometime in May, 1955 the second
defendant announced the production of a motion picture entitled "New Delhi". The Plaintiff found out the
movie was an adaptation of his play.
• The Defendant said that that the story treatment, dramatic construction, characters etc. were quite different
and bore not the remotest connection or resemblance with the play written by the plaintiff. He just wanted
to make a movie around the central theme of ‘provincialism’.
• Plaintiff sued the Defendant for infringing the copyright. District court, Delhi and Delhi High Court held in
favor of the Defendant. Hence the appeal to the SC.
• On what constitutes copying- "When two authors portray in literary or dramatic form the
same occurrence, involving people reacting to the same emotions under the influence of an
environment constructed of the same materials, similarities in incidental details necessary
to the environment or setting are inevitable; but unless they are accompanied by similarities
in the dramatic development of the plot or in the lines or action of the principal characters,
they do not constitute evidence of copying…. But there was no substantial identity between
the respective works in the scenes, incidents, or treatment of the common”
• On the plaintiff’s rights- “This right exists in the written scenario of a motion picture
photoplay and in the photoplay itself as recorded on the photographic film. There is,
however, no common-law literary property right in the manner and postures of the actors
used by them in performing the play".
• “Infringement exists when a study of two writings indicates plainly that the defendant's work is a
transparent rephrasing to produce essentially the story of the other writing, but where there is no textual
copying and there are differences in literary style, the fact that there is a sameness in the tricks of spinning
out the yarn so as to sustain the reader's suspense, and similarities of the same general nature in a narrative
of a long, complicated search for a lost article of fabulous value, does not indicate infringement.”
• Substantial similarity- “the person looking at the respondents’ picture must get the suggestion that it is the
appellant's picture. In this sense, the points of similarity or dissimilarity in the picture assume some
importance”
• (Page 29 of judgement, last para onwards-7 pointer test)
• Held- Upheld order of lower court. “mere similarities by themselves are not sufficient to raise in inference
of colourable imitation on the other hand, there are quite a number of dissimilarities also”
Zee Telefilms v. Sundial Communications (P)
Ltd. 2003 (5) BomCR 404
• Law of Confidence is different from Law of Copyright.
• If the ideas or information have been acquired by a person under any circumstances such
as confidential information then it would be a breach of good faith to publish them and the
Court may grant injunction in such scenario. (Also read: section 16)
• Plaintiff must showcase intention of confidentiality.
• (relevant for protection of say, unpublished manuscripts)
Originality

“Originality is simply a pair of fresh eyes.” − Thomas

Wentworth Higginson (1823-1911)
Baker v. Selden, 101 U.S.
99 (1879)
o Selden had written a book in 1860
which described an improved system
of book keeping by a particular
arrangement of columns and headings
which made the ledger book easier to
read.
o Baker accomplished a similar result,
but using a different means of
arrangement of columns and
headings.
o “The difference between the two things, letters patent and copyright,
may be illustrated by reference to …the case of medicines. Certain
mixtures are found to be of great value in the healing art. If the
discoverer writes and publishes a book on the subject (as regular
physicians generally do), he gains no exclusive right to the manufacture
and sale of the medicine. If he desires to acquire such exclusive right,
he must obtain a patent for the mixture... He may copyright his book if
he pleases, but that only secures to him the exclusive right of printing
and publishing his book.” (practical application/use v literary
composition/explanation)
o The court held that blank account books are not the subject of
copyright, and that the mere copyright of Selden's book did not confer
upon him the exclusive right to make and use account books, ruled and
arranged as designated by him and described and illustrated in said
book.
Walter v Lane [1900] AC 539
• From 1896 and 1898, Lord Rosemary delivered public audiences speeches
on subjects of public interest. Reporters attended on behalf of The Times
and other newspapers and took down the speeches in shorthand. They write
out their notes, corrected, revised and punctuated their reports for
publication, and the reports were published in The Times, the speeches
being given verbatim as delivered by Lord Rosebery.
• In 1899, Lane published a book called “Appreciations and Addresses: Lord
Rosebery.” It had reports (substantially taken from verbatim from The
Times) of the speeches of Lord Rosebery and short notes explaining the
occasion.
• Issues- Whether there is any © in the reports of the speeches made in
public?
• Held-
• Walter claims © in the report of the speech and not speech itself.
• Reporter is the author of his own report; his art is more than mere transcribing
or writing from dictation. Reporter has exercised considerable ‘labor, skill and
judgment (originality test) in producing a verbatim transcript of the speech’.
Reduction to writing of the words of a person who spoke quickly was an art
requiring considerable training. Reporter of a speech, in this case, is the
meritorious producer of the something necessary to constitute him an ‘author’
.
• Established ‘‘reporter’s copyright’’- A person who produced and published a
written verbatim record of a previously unpublished oral composition was
entitled to copyright in that record and thus had the exclusive right to produce
and publish multiple copies of that record.
(Outdated test with technological advancements such as sound recording but still
followed on test of originality)
 Feist Publications, Inc., v. Rural
Telephone Service 499 U.S. 340 (1991)
• Respondent, Rural Telephone Service Company, is a telephone service
provider who publishes a typical telephone directory, consisting of white pages
and yellow pages. It obtains data for the directory from subscribers, who must
provide their names and addresses to obtain telephone service.
• Petitioner, Feist Publications, Inc., is a publishing company that specializes in
area-wide telephone directories covering a much larger geographic range than
directories such as Rural’s.
• Rural refused to license its white pages listings to Feist for a directory; Feist
extracted the listings it needed from Rural's directory without Rural's consent.
Although Feist altered many of Rural's listings, several were identical to
listings in Rural's white pages. Rural sued Feist for copying information in its
white pages.
• "sweat of the brow” doctrine or "industrious collection" test - the underlying
notion was that copyright was a reward for the hard work that went into compiling
facts. “The right to copyright a book upon which one has expended labor in its
preparation does not depend upon…whether such materials show literary skill or
originality, either in thought or in language, or anything more than industrious
collection.”
• Copyright protection mandates originality = independent expression (as opposed
to copied work) + modicum of creativity (very low threshold).
• “Since facts do not owe their origin to an act of authorship, they are not original,
and thus are not copyrightable (discovery v. creativity). A compilation is not per se
copyrightable, although a compilation of facts may possess the requisite
originality because the author typically chooses which facts to include, in what
order to place them, and how to arrange the data so that readers may use them
effectively, copyright protection extends only to those components of the work
that are original to the author, not to the facts themselves. This fact/expression
dichotomy severely limits the scope of protection in fact-based works.”
• “The Court rejected the doctrine of the sweat of the brow as this doctrine had numerous
flaws, the most glaring being that it extended copyright protection in a compilation beyond
selection and arrangement (the compiler’s original contributions) to the facts themselves.
A subsequent compiler was not entitled to take one word of information previously
published, but rather had to independently work out the matter for himself, so as to arrive
at the same result from the same common sources of information.
• Rural's white pages do not meet the constitutional or statutory requirements for copyright
protection. While Rural has a valid copyright in the directory as a whole because it
contains some forward text and some original material in the yellow pages, there is nothing
original in Rural's white pages. The raw data are uncopyrightable facts, and the way in
which Rural selected, coordinated, and arranged those facts is not original in any way.
Rural's selection of listings -- subscribers' names, towns, and telephone numbers -- could
not be more obvious, and lacks the modicum of creativity necessary to transform mere
selection into copyrightable expression…. It is an age-old practice, firmly rooted in
tradition and so commonplace that it has come to be expected as a matter of course.
• Held- No copyright so no infringement.
 CCH Canadian v Law Society of Upper Canada [2004]
1 SCR 339

• Law Society of Upper Canada maintained and operated the Great Library at Osgoode Hall in Toranto, a reference and
research library. The Great Library provides a request- based photocopy service for Law Society members, the judiciary
and other authorized researchers. Under the custom photocopy service, legal materials are reproduced and delivered to
the requesters. The Law Society also maintains self-service photocopiers in the Great Library for use by its patrons.
• CCH Canadian Ltd., Thomson Canada Ltd. and Canada Law Book Inc. publish law reports and other legal materials.
• The law book publishers commenced copyright infringement action against the Law Society claiming ownership of
copyright in 11 specific works on the ground that the Law Society had infringed copyright when the Great Library
reproduced a copy of each of the works and further sought permanent injunction prohibiting the Law Society from
reproducing any other works that they published.
• The Law Society denied liability and submitted that the copyright is not infringed when a single copy of a reported
decision, case summary, statute, regulation or a limited selection of text from a treatise is made by the Great Library staff
or one of its patrons on a self-service photocopier for the purpose of research.
• The Court was called upon to decide the question as to what shall be the originality in the work of compilation.
• “To be original under the Copyright Act the work must originate from an author, not be copied from
another work, and must be the product of an author’s exercise of skill and judgment. The exercise of skill
and judgment required to produce the work must not be so trivial that it could be characterized as a purely
mechanical exercise. Creative works by definition are original and are protected by copyright, but
creativity is not required in order to render a work original. The original work should be the product of an
exercise of skill and judgement and it is a workable yet fair standard. The sweat of the brow approach to
originality is too low a standard which shifts the balance of copyright protection too far in favour of the
owner’s right, and fails to allow copyright to protect the public’s interest in maximizing the production and
dissemination of intellectual works. On the other hand, the creativity standard of originality is too high. A
creative standard implies that something must be novel or non-obvious - concepts more properly associated
with patent law than copyright law. By way of contrast, a standard requiring the exercise of skill and
judgment in the production of a work avoids these difficulties and provides a workable and appropriate
standard for copyright protection that is consistent with the policy of the objectives of the Copyright Act.”
• Original= creative (low threshold) + skill and judgement (not trivial/mechanical exercise; beyond mere
labor and capital).
• Held- The publishers’ headnotes, case summary, topical index and compilation of reported judicial
decisions are all “original” works covered by copyright. They originated from their authors, are not mere
copies and are the product of the exercise of skill and judgment that is not trivial. But there was no
infringement (Fair Use Doctrine).
 Eastern Book Company v. DB Modak (2008) 1 SCC 1

• Appellants, Eastern Book Company & Ors. is involved in the printing and publishing of various books relating to the field of law.
One of the well-known publications of the Appellant is the law report Supreme Court Cases (hereinafter called SCC).
• The appellant publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India. For the
purpose of publishing the judgments, orders and proceedings of the Supreme Court, the copies of judgments, orders and proceedings
are procured from the office of the Registrar of the Supreme Court of India. After the initial procurement, the appellants make copy-
editing wherein the judgments, orders and record of proceedings procured, which is the raw source, are copy- edited by a team of
assistant staff and various inputs are put in the judgments and orders to make them user friendly by making an addition of cross-
references, standardization or formatting of the text, paragraph numbering, verification and by putting other inputs. The appellants
also prepare the headnotes and the long note, which is comprised of a brief discussion of the facts and the relevant extracts from the
judgments and orders of the Court.
• The Appellants argue that the preparation of the headnotes and putting the various inputs in the raw text of the judgments and orders
received require considerable amount of skill, labour and expertise and for the said work a substantial amount of capital expenditure
on the infrastructure, such as office, equipment, computers and for maintaining extensive library, besides recurring expenditure on
both the management of human resources and infrastructural maintenance, is made by the plaintiff- appellants. As per the appellants,
SCC is a law report constitutes an `original literary work of the appellants. Any scanning or copying or reproduction done of or from
the reports or pages or paragraphs or portions of any volume of SCC by any other person, is an infringement.
• As per the appellants, all the modules in the defendant- respondents software
packages, “Law Published”, have copied the appellants sequencing, selection and
arrangement of the cases coupled with the entire text of copy-edited judgments as
published in the plaintiff-appellants law report SCC, along with and including the
style and formatting, the copy-editing paragraph numbers, footnote numbers,
cross- references, etc.; and such acts of the defendant- respondents constitute
infringement of the plaintiff- appellants exclusive right to the same. If the
defendant wants, they should go to the original source and get their judgements
from there.
• Division Bench HC: The Court has further held that the appellants are not the
author of the Supreme Court judgments and by merely making certain corrections
therein or giving paragraph numbers, the character of a judgment does not change
and it does not become materially different from the original judgment.
• SC: The copyright protection finds its justification in fair play. When a person
produces something with his skill and labour, it normally belongs to him and the
other person would not be permitted to make a profit out of the skill and labour of
the original author…The issue of copyright is closely connected to that of
commercial viability, and commercial consequences and implications.
• What shall be the standard of originality…required in a derivative work to treat it the original work of an
author and thereby giving a protected right? And what will be the extent of rights so recognised?
• That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing
amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or
innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts
are necessary to establish copyright in the authors work. The principle where there is common source the
person relying on it must prove that he actually went to the common source from where he borrowed the
material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of
the courts because there is no copyright in the judgments of the court, unless so made by the court itself. To
secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital
invested should be sufficient to communicate or impart to the judgment printed in SCC some quality or
character which the original judgment does not possess and which differentiates the original judgment from
the printed one.
• Originality= own skill, labour and investment of capital + a flavour of creativity (following the Canadian
approach)
• Held: original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data
contained in the work, a work somewhat different in character is produced by the author; some
distinguishable features. Creation of paragraphs by separating them from the passage would require
knowledge, sound judgment and legal skill. In our opinion, this exercise and creation thereof has a flavour of
minimum amount of creativity. The said principle would also apply when the editor has put an input whereby
different Judges opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also
requires reading of the whole judgment and understanding the questions involved and thereafter finding out
whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and
partially agreeing to the view on a particular law point or even on facts.
Works
Literary Works
Section 2(o)

Not limited to works of literature; all works expressed in print or writing (words, numbers, verbal or
numerical symbols)
Work must be capable of conveying an intelligible meaning (very low-threshold test deployed by courts
for intelligible meaning- copyright does not pass judgement on standard of work)
Intelligible meaning includes healthy nonsense (like a book of cartoons)- not necessary that must be
understood by general public; limited group with special abilities/viewpoint is sufficient to understand it.
Novels, poems, song lyrics, advertising slogans, railway timetables, examination papers, etc.

Includes works of pleasure, instruction and information.

University of London Press v University Tutorial
Press (1916)

o UTP (defendants) had appointed two examiners for matriculation exam to be held in
UL.
o The term of employment for examiners was that the copyright in exam papers would
vest with the employer university.
o UTP later entered into an agreement assigning their rights in exam papers to ULP.
o Once examinations concluded, UTP released a report criticizing/assessing the quality
of exam papers and also reproduced these papers along with answer key in the report.
o ULP files a suit of infringement against UTP.
 whether
Whether EP Whether
exam papers Who is the
Issues- are original UTP has
are literary owner?
work? infringed?
works?
o Literary work: means work which is expressed in print or writing, irrespective of the
question whether the quality or style is high.
o The literary merit of the work should not be looked into and all works expressed in
writing or print come under the term ‘literary work’.
o The Act provides a non-exhaustive list of literary works extending to maps, charts,
tables, compilation.
o Includes secondary work based on existing sources, provided it involves skill, labor
and judgment. E.g. translations, abridgment, compilation
o The court held that printed EP can be protected as literary work under the Copyright
Act.
o Copyright law looks into originality of expression as opposed to originality of
thought/idea. The expression must originate from author and not copied from another
work.
o The examiners used selection, judgement, experience to prepare EPs to test students’
understanding and therefore created copyrightable work. The source of their work was
pre-existing knowledge common to all but expression was original and not copied
from anywhere.
(read with section 17)

• With respect of ownership issue, the court discussed the concepts of ‘contract of service’
and ‘contract for service’ that measures degree of control exercised by the employer vis-à-
vis independence of employee in rendering services. The examiners in this case were
relatively independent and therefore engaged in contract for service and therefore were first
owners of copyright. The UTP was an equitable owner of copyright and the same was
transferred to ULP when they signed the assignment deed. And therefore, together ULP and
examiners could bring a suit of infringement against UTP.
• UTP held to be infringing the copyright as their use didn’t fit within the contours of fair
dealing.
Titles/Names - Names and titles are not per se copyrightable as a rule. Exxon
Corp. v Exxon Insurance Consultants (1982) RPC 69, 90.).
There could be a remedy under passing off or trademark
law, however.
- Exception- fictional characters that have distinct
characteristics can be allowed copyright protection. (R. Radha
Krishnan v. A.R. Murugadoss, (AIR 2014 Mad 25); other
examples include- Harry Potter, Micky Mouse, Sherlock
Holmes, Tarzan, Superman, etc).
- HEADLINES- can be copyrighted if original.
Slogans -
-
Carry the burden of a brand.
Could have been protected under 2(o) but there has been
reluctance. “common words” and therefore cannot be original
literary works.
- Slogans however, when used in course of trade, can be
protected under trademark law. (Pepsico Inc. v Hindustan
Coca Cola, (2001) PTC 699 (Del)). “the function of © is to
protect works designed to interact with the human mind, not
works designed to provide a mere practical aid to a
manufacturing process.”
Judgements • Copyrightable- section 28 read with section 2(k)
• Exempted from copyright protection under Section 52 (q) (iv).
• Additionally, copyright protection was stripped by SC in EBC
v DB Modak. They are derivative works in public domain.
• EBC v DB Modak- publisher inputs added with minimal
creativity can be protected.
• Protection also extends to editor’s notes, headnotes, etc.
• A law report can be protected under copyright as a whole.
Same is the case with shortnotes. (Infoseek Solutions v
Kerala Law Times (2007)
• Abridged works and translations also copyrightable as
long as permissions sought.

• Tables and compilations can also be protected provided

original and involving skill/judgement/meaning.
Computer - Computer programs are copyright subject matter- a fairly settled
provision. Computer related Inventions (CRIs) however, can be

Programs patentable as per the revised CRI guidelines released by the

Office of Controller General.
(https://www.mondaq.com/india/patent/984818/why-software-
inventions-are-just-like-inventions-in-other-fields-of-technology-
in-india )
- India is in line with both TRIPS (Article 10) as well as the Berne
convention (categorises PC programs as “scholarly works”).
- Justice Pratibha Singh in a Delhi HC judgment (Ferid Allani v.
Union of India, Decided on 12th December 2019) held that CRIs
demonstrating ‘technical effect’ or ‘technical contribution’ can be
patented even if generated by a computer program. (IPO has
drafted “Revised Guidelines for Examination of Computer-
Related Inventions” to this effect)
- Computer program per se is not patentable under section 3(k).
Computer Database

Since India has ratified the TRIPS

Database- Database is an Agreement and the Berne
accumulation of information Convention, the necessity of
stored in a way such that it can creativity in the arrangement or
be systematically searched and selection of the subjects of the
retrieved by computer. database is mandatory to attract
the protection under copyright.
Dramatic Works

Section 2 (h)- inclusive definition

A work of action; intended to be or “capable of being performed” (physically; before an audience);

more than a mere set of instructions-certainty of actions; usually repetitive.

A film is a recording of dramatic work and not of itself a dramatic work.

Scenarios or scripts for plays, films, choreography- all dramatic works.

‘Dramatic literature’- text of a play that can be read as distinct from being seen and heard- comes
under protection of literary work. (Academy of General Education v B. Minni 2009)
Academy of General Edu., Manipal and Anr. v. B.
Malini Mallya (2009)

• Dr Karanth, Director of the appellant institute, developed a new form of` Yakshagana‘ a
form of ballet dance, called `Yaksha Ranga'.
• Dr. Karanth had composed seven verses or prasangas for staging Yaksharanga Ballet apart from
bringing in changes in the traditional form thereof on its relevant aspects, namely, Raga, Tala,
Scenic arrangement, Costumes etc. These prasangas are: (i) Bhishma Vijaya; (ii) Nala
Damayanthi; (iii) Kanakangi or Kanakangi Kalyana; (iv) Abhimanyu or Abhimanyu Vada; (v)
Chitrangadha or Babruvahana Kalaga; (vi) Panchavati; and (vii) Ganga Charitha.
• On or about 18.6.1994, he executed a Will in favour of Malini Mallya (Plaintiff). Dr. Karanth
expired on 9.12.1997.
• The Plaintiff sought permanent injunction staging or performing any of the above said 7 ballets
by the Academy.
• The Academy argued that what was bequeathed was only the 7 prasangas and not the
performance.
• The Supreme Court held that while the composition may be also be protected under literary
works, the act identifies/gives protection to two separate categories-literary works and
dramatic works.
• So while the dramatic literature will come under the former, the performance as conceived
by Dr. Karanth will come under dramatic work also bequeathed to Ms. Mallya. So
performance of it in that manner without her permission will be infringement.
• “At a general level, dance involves different works such as choreography, scenic
arrangement, acting, music, recitation/dialogues, and costumes and so on, and each of them
is protectable under the copyright law. While choreography, sequences, arrangements and
acting are protectable as dramatic works, lyrics, dialogues and script are protectable as
literary works, compositions as musical works, props, settings and costumes as artistic
works, recorded music as sound recordings. A combination of protection afforded by
different works provides dance a comprehensive and integrated copyright protection.”
Dramatic Works
Performance of the dramatic literature would come under dramatic work.

Static objects, sets scenery or costumes per se- not dramatic works (can be protected under artistic works perhaps)

‘works of action’ might include some sports such as gymnastics or synchronized swimming.

Work looked as a whole-must have sufficient unity, specificity or detail to be performed. So a general idea of a
television talent quest not dramatic work.

Video games? Not dramatic works because the sequence of images will not be same from one play to another.

If work is performable but not fixed it can still be protected but lesser protection (performers’ rights under section 38)
Musical Works

• Section 2 (p)
• Words intended to be sung or spoken with music
will either be classified as dramatic work or
literary work.
• Combination of melodies and harmonies;
“Sound” of music capable of producing effect on
listener’s emotions and intellect- not mere noise.
• So edits made to create performing editions of
previously existing melodies-such as figuring of
base, adding ornamentation, tempo, etc- even
when does not involve changes in notes or
melody, can get a musical work protection of its
own as the affect the sound of music. (Dr.
Sawkins v Hyperion Records)
• Fixation was a necessary requirement till 1994. Then lifted to bring protect
rights of impromptu performers (acting in line with TRIPS).
• Excluded part of the definition that might cause adverse effect to performers,
has now been protected under the chapter on Performer’s Rights.
• Performance- section 2(q); performer- section 2(qq)
• (hence, safe to say that countries are slowly moving away from the fixation
requirement but cannot be said conclusively for all subject matters).
 • Section 2 (c ); sections 2(i), 2 (s)
• Understands paintings as an object and not an idea;
needs a surface and human face doesn’t qualify as
surface (narrow perspective).
• Additionally, painting envisages a permanent
Artistic Works intention; so tattoos can be protected extending this
logic.
• Works of architechture (2 (b)
• Not to method or process of construction but the
artistic character and design only
• Must be located in India (13 (2) (iii).
• Photographs
• Individual frames from films are not photographs. Artistic expression in
setting of angle, light, frame, etc.
• “artistic quality”- left for courts to determine because requires a case-to-case
analysis
• Means aesthetic standards
• So even non-appealing work or work lacking artistic quality can be
artistic work.
• Drawings – even mechanical or engineering drawings are ‘artistic work’ entitled to ©
protection.
• No © protection to any design registered under the Designs Act, 2000 [Section 15]
• Section 13(5): The process or method of construction does not form a protectable
subject matter.
• If items are made after being first conceptualized in drawn form, the drawing will be
considered a subject matter of copyright and the resultant item will be considered a
copy.
• But a portrait made as a culmination of two photographs, can be protected if it leads to a
result different than the photographs and is itself original (Associated Publishers v
Bashyam).
• Sculpture
• Section 2 (z-a)
• Three-dimensional work by an artistic hand
• Structural nature, mode of fabrication and purpose of the object.
• Plastic version of the Stormtrooper helmet in Star Wars was not considered sculpture by the court (Lucasfilm
v Ainsworth).
• Artistic craftsmanship
• Miscellaneous category
• Visual appeal
• Ananda Expanded Italics (Req), re- 2002 (24) PTC 427 CB- are typefaces and fonts artistic craftsmanship?
No- no protection envisaged by the Act, doesn’t fit under the ejusdem generis analysis and the artistic work
and utility aspect cannot be separated.
Cinematographic Works
• Section 2 (f); 13 (b)
• Indian Performing Rights Society v. Eastern Indian Motion Pictures Association-
“A cinematograph is a felicitous blend, a beautiful totality, a constellation of stars, if I may
use these lovely imageries to drive home my point, slurring over the rule against mixed
metaphor. Cinema is more than long strips of celluloid, more than miracles in photography,
more than song, dance and dialogue and, indeed, more than dramatic story, exciting plot,
gripping situations and marvelous acting. But it is that ensemble which is the finished
product of orchestrated performance by each of the several participants, although the
components may, sometimes, in themselves be elegant entities. Copyright in a cinema film
exists in law, but Section13(4) of the Act preserves the separate survival, in its individuality,
of a copyright enjoyed by any 'work' notwithstanding its confluence in the film.” – Krishna
Iyer, J.
Sound Section 2(xx)
Owners of sound
recordings v. owners of
Includes: ordinary disc,
cassette tape, compact
disc, digital audio tape
Recordings musical work and any future technical
developments.
Related Rights

- Broadcast and Performers’ Rights

- Sections 2(dd), 2(q), 2(qq)
- Chapter VIII (37,38,39)
 • Registration not mandatory by law (though

Registration of highly encouraged).

• “Copyright subsists”- section 13
Copyright • Sections 44- 50A, Chapter X