Meaning of Copyright Final

 

UMLA 4th Year BBA,LLB Intellectual Property Rights Assignment BY, Aditya Yash Vyas Roll No. - 51

 

Subject matter of copyright (Section 13)

1957 deals with provisions about works in which copyright Section 13  of Copyright Act, 1957 deals subsists and in which copyright does not subsist.

(1) It primarily says that the copyright shall subsist throughout India in the following classes of works:   

     

original, literary, dramatic, musical and artistic work  cinematographic films and sound recordings

(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of Section 40 or Section 41 apply, unless (i) in the case of a published work,  



  the work is first published in India or    where the the work is first published outside outside India, the author is at the the date of such  publication, or    in a case where the author was dead at that time, was at the time of his death, a citizen of India.

Subsistence is the action or fact of maintaining or supporting oneself at a minimum level. An Explanation was given which says that in case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work. (3) Copyright shall notcopyright subsist (a)ininany anyother cinematographic filmsound if a substantial of in therespect film is an infringement of the work; (b) in any recordingpart made of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed. (4) The copyright in a cinematographic film or a sound recording shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the sound recording is made. (5) In the case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

 

WORK IN WHICH COPYRIGHT SUBSISTS From the foregoing paragraphs, more so as defined under section 131 it is clear that a copyright subsists only in certain classes of wok viz.,

1.   Original Literary, dramatic dramatic or musical work 2.   Original Artistic work 3.   Cinematograph film 4.   Sound recording 5.   Computer programmes.

These are explained in detail below.

1. Original Literary, dramatic or musical work (a) Literary Work 

 Literary work means any work in written or printed manner so long as it is original and has been created by sufficient skill and labour. Literary work also includes a computer programme, table, complications and Computer database (Section 2 (0)). Literary work need not be of literary quality. It could be any work which may or may not make any literary value. An ordinary work of compilation of names of people living in a particular area can also be treated as literary work when considerable skill is involved in such work. In fact, it was held in University of London Press v/s University of Tutorial Press ((1916) 2 Ch 601) that examination papers are original literary work since the person who sets the question paper invests labour and skill in preparing the same. Such person is the author of question paper and the copyright would vests in him. In another of Zee Telefilms Ltd Sundial Communications ((2003) 27consists PTC) it of was held that even thecase concept notes prepared forv/s the purpose of a television film which characters,  plots, notes, n otes, sketches etc. were held to be literary work.  Copyright in literary work can also be by the means of adaptation, abridgement and translation. Adaptation: It is pertinent to note that the copyright also subsists in original adaptation of literary work. Adaptation simply means 'adapting' or 'to adopt from original work and converting the same into any form such as a dramatic work by the way of performance in public or otherwise Abridgement: Also, a genuine abridgement of literary work is also an original work and can be copyrighted, subject to the author using sufficient skill and labour upon it. Mere copying of the original work does not amount as abridgement of work.

 

Translation: Translation means to translate the original work in some other language(when literary work). It is widely known that various books by different authors are translated and  published in regional languages langua ges in India to suit their state requirement. However, it was held in Blackwood /vs Parasuraman (AIR 1959 Madras 410) that translation in any literary work is entitled to copyright protection if sufficient skill and labour has been invested in it. However, it was further held that if Copyright exists in such original work, then such translation without the

consent of the original Copyrighted work will constitute infringement of such original work. Some of the literary works in which copyright subsists are as follows:

(i) (ii)

(iii)) (iii

Headlines Headlines of newspaper: newspaper: - if the same are original original and involves involves skill and labour, labour, it it would enjoy the copyright protection. Head Notes of law law Reports Reports:: - it contains contains a clear and brief brief principle principle of law law concluded concluded  by the Court. Hence Henc e requires skill and thought and is entitled to copyright protection. (Hi) Letters: Letters: - Letters Letters addressed addressed by by one person to another another are origina originall literar literary y work and entitled to copyright. Similarly, notes dictated to a typist also come under the purview of copyright protection. In such a case, the person who dictates such notes is the author of the same.

Case Laws  

Case: University of London vs University of Tutorial press

Facts: Examination question papers were set by "A".  Issues: Whether A is entitled to copyright of that work?? Held: Yes, since A invests labour and skill in preparing the examination question paper. Such  person is a author of question paper and the copyright would vest in him. 

Case: Zee Telefilms vs Sundial Communications

Facts: A had prepared concept notes for the purpose of television film which consist of characters, plots, notes and sketches etc. Issues: Whether A is entitled to copyright of those concept notes? Held: Yes, since A invests labour and skill in preparing the concept paper. Such person is entitled for copyright.  

Case: Blackwood vs Parasurama

Held: It was held that translation in any literary work is entitled to copyright protection if sufficient skill and labour has been invested in it.

 

(b) Dramatic Work

Dramatic work as per section 2 (h) includes any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. Thus to constitute a dramatic work it is necessary that some form of action should be present, which is capable of being performed. The element of action is necessary. It was held in Creation Records v/s New Group Newspapers (1997) EMLR 444 that a photograph which involves no movement or action cannot be treated as dramatic work. Adaptation of Dramatic work means modification of that work in some other form. In simple words, if a theatre drama is adapted and a cinematograph film is made thereof. In such a case, however, the consent or permission of the author/ owner of the copyright in such work is necessary. A recent case is that of a film Oh My God which is adapted from a Gujarati play.

Case Laws  

Case: Creation Creati on Records vs New Group Newspaper

Held: It was held that a photograph which involves no movement or action cannot be treated as dramatic work.

Copyright of Dramatic work can in form of: Adaption of Dramatic work: Adaptation work means modification of that work in some other form (c) Musical Work 

 Musical work is defined under section 2 (p) as a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music. It was held in Gramophone Company v/s Super Cassettes Industries 1996 PTC 252 Delhi that musical work is not merely a combination of melody and harmony or either of them, it must necessarily also have been printed, reduced to writing or graphically produced or reproduced to copyright.

 

One must note that musical work does not include any words or any action intended to be sung, spoken or performed with music. Such works will be either classified as literary or dramatic works. Further, adaptation of original musical work also enjoys copyright protection. Adaptation in relation to musical work means any arrangement or transcription of the work. Copyright will subsist in arranging the musical work by adding musical melodies, new compositions, new rhythms etc. A very common form of adaptation in recent times is the remix songs which we hear along with the orchestra. Such an adaptation does not constitute infringement of copyright. However, a musical work should be original to enjoy the copyright and similar to literary work, the originality of musical work is determined by the amount of skill and labour put by the composer. When one thinks of musical work the only word which clicks the mind is "song". A song as such has no Copyright protection. It is the lyrics (words) and music of the song which is capable of  being copyrighted. In case of lyrics the author is the owner of Copyright and an d in case of music the composer is the owner of copyright. For eg a very famous song namely YAARAM which is written by Gulzar and composed by Vishal Bhardwaj So the copyright over the lyrics will belong to Gulzar and musical composition will that be of the composer i.e., Vishal Bhardwaj

Case Laws 

 

  Famous song "Yaaram" which which is written written by Gulzar and composed by Vishal Bharadwaj. The copyright of the lyrics will belong to Gulzar and musical composition will that be of the composer Vishal Bharadwaj. Case: Gramophone Co. India vs Super Cassette Industries Indust ries

Facts: 'G.co', Plaintiff, produced audio records titled 'Hum Aapke Hain Kaun' by Rajashree  production ltd, who were the owners of cinematographic work. They had already sold 55 5 5 lakhs audio cassettes and 40,000 compact discs titled 'Hum Aapke Hain Kaun'. The defendants too launched an audio cassette by adopting same title with it, design, colour scheme, get up and

layout deceptively similar. Permanent Injunction sought. Held: Injunction varied by stipulating not to use same title, design colour scheme etc with bold letters the record is version of different artists.

2. Ori Origin ginal al Art Artist istic ic Wor Work  k   As per Section 2 (c) Artistic work means: (i) a painting, a sculpture, sculpture, a drawing (including a diagram, map, chart or a plan) an engraving or a photograph, whether or not any such work possess artistic quality; (ii) a work work of architecture; and (iii) any other work of artistic craftsmanship

 

Intellectual property law is very wide and it aims to provide protection to any kind of artistic work so long as it is original and sufficient amount of skill and labour is put on such work. This is clear from the aforesaid definition which states "whether or not it possess artistic quality" Painting is not defined under the Copyright Act. However, it is entitled to copyright protection whether it possesses any artistic quality or not if the same is original and has involved sufficient skill and labour. However, a painting should necessarily be on a surface. It cannot have copyright  protection if the same is on a moving object. For eg., it has ha s been be en held in number nu mber of cases that the  painting or a facial make-up make-u p on a persons’ body would not be entitled to any copyright  protection. Sculpture merely means the art of making figures and shapes by craving or shaping stone, wood, metal etc. Section 2 (z-a) states work of sculpture includes casts and models. As the aforesaid section states a drawing includes a diagram, map, chart or a plan. Thus either of this can be termed as drawing and are able to copyright protection so long as the basic ingredient of originality is present. A drawing could be in any form whether it has artistic quality or not, it could be a engineering or a mechanical drawing. In fact it was held in English court that even cutting patterns for women clothes amount to a drawing and is entitled to copyright protection. Engraving as defined under section 2 (1) includes etchings, lithographs, wood-cuts, prints and other similar works not being photographs. Engraving in simple language means craving design on a hard surface. The engraver of such design requires immense skill, labour and expertise to  put a particular design on a hard object. Though it is in still format, it is clearly not a photograph. However, an engraving made from copying a photograph or a picture is entitled to copyright  protection but not vice-versa. Photograph of any particular object amounts to artistic work and is entitled to copyright  protection so long as it involves some degree of skill and labour. Photograph as defined under Section 2 (s) includes photo-lithograph, and any work produced by any process analogous to  photography but does not include any part of cinematograph film. From the definition it is obvious that a photograph would not include a cinematograph film or any part thereof since the same is a separate form of work in which copyright subsists. A photographer can have copyright  protection over a photo of a public object, (say VT station) if clicked from a particular angle ang le and in a particular manner but that does not stop another person from clicking the another photograph from the same angle or in the same manner. That too will be entitled to copyright protection so long as it is original and involves sufficient skill and labour. However, one must note that there is no copyright protection available to a photo-copy of an original photograph. Work of Architecture as defined under Section 2(b) means any building or structure having an artistic character or design or structure.

 

Unlike the definition of artistic work, this definition clearly states that the work must have an "artistic character or design", In other words, this definition is in contrast with the definition of artistic work which states "whether or not such work possesses artistic quality" Thus to constitute a work of architecture it is necessary that an element of artistic character, design or structure must be present in the work. It must be noted that the process or construction methods of such  building or structures need not have an artistic quality. This is clarified by Section 13 (5) which states that " In case of work of architecture copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction." Thus, there is an unambiguous division between protection to architect's design (for a particular  building/structure) as compared to the processes and methods (which have no protection under Copyright law) by which such designs are implemented. Artistic Craftsmanship is not defined under the Copyright Act. However, in common parlance it can be said that artistic work by a worker skilled in craft. The aforesaid section of artistic work states that "any other work of artistic craftsmanship" intends to cover the other activities which must show artistic craftsmanship. For e.g. , hand painted tiles or hand   painted painted coasters, trays etc.

Case Laws  

Case: Associated publishers vs Bashvam

Facts: A portrait of Mahatma Gandhi was made based on two photographs.

will be entitled to copyright if it produced a result from Held: A portrait based on photographs will the photograph and the portrait itself is original.

Example: A photographer took a photograph of a painting of MF Hussain, then paints the same himself and sells such copies painted by him.

Held: A copyright in a painting is infringed when a person copies from the original painting or a  picture of o f painting.

Example: If a building similar to the lotus temple in Delhi is made by any other architect, it would be infringement of copyright of the architect who made the plan for the lotus temple.

 

3. Cin Cinem emato atogra graph ph Film Film In today's rnodern times no one is ignorant about what a cinematograph film is. In fact it is, the largest and the most extensive mode of entertainment for public at large. Under Section 13 copyright subsist in cinematograph film, The same Is defined under section 2 (f) as "cinematograph film" means any work of visual recording and includes a sound recording accompanying such visual recording and “Cinematograph” shall be construed as including any work by any process analogous to cinematography including video films.”   The concept of cinematograph films is not limited to a movie which is played in theaters. It was clearly held in Balwindar Singh V/s Delhi Administration, Delhi AIR 1984 Delhi 379, that video as well as television both fall under the purview of cinematograph film.   The producer of the cinematograph film is the owner of copyright under the Copyright Act. The level of originality of a cinematograph film is not specified under the Act. However, one a film which is based on someone's life event or a newspaper report can claim copyright  protection. However, Section 13 (3) (a) clarifies that no copyright would subsist in a cinematograph film if it is an infringement of copyright of any other work.

Case Laws  

Case: Baiwinder Singh vs Delhi Administration

Held: The concept of cinematograph is not only limited to movies being played in theater it also covers videos and television, they both fall under the preview of cinematograph film. Level of Originality: A television report or documentary may be based upon a live incidents or a newspaper report, thus the act does not prescribe any specified level of originality in the cinematographic film.

4. So Soun und dR Rec ecor ordi ding ng Sound Recording as per Section 2 (xx) means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which such recording is produced. Similar to a cinematograph film, in case of sound recording, the owner of sound recording is the  producer. However, the copyright in the music of such sound recording vests with the composer.

Case Laws  

Case: Gramophone Co. India vs Super Cassette Industries Indust ries

 

Facts: 'G.co', Plaintiff, produced audio records titled 'Hum Aapke Hain Kaun' by Rajashree  production ltd, who were the owners of cinematographic work. They had already sold 55 5 5 lakhs audio cassettes and 40,000 compact discs titled 'Hum Aapke Hain Kaun'. The defendants too launched an audio cassette by adopting same title with it, design, colour scheme, get up and layout deceptively similar. Permanent Injunction soughted. Held: Injunction varied by stipulating not to use same title, design colour scheme etc with bold letters the record is version of different artists.

 

5. Com Comput puter er Progra Programm mmee It is defined under Section 2 (ffc). It means a set of instructions expressed in words, codes, schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular task to achieve a particular result. Computer Programmes are clearly entitled to copyright protection. In fact, it has been held in English Courts that Copyright can also exist in a source code of computer programme. In a computer programme, the elements such as codes, design and structure used by the  programmers can be copyrighted. It means a set of instructions expressed in words, codes. Schemes or any other form, including a machine readable medium, capable of causing a computer to perform a particular tasks to achieve a particular result.  Example: Whatsapp, Flipkart etc.

 

 (Section 14 of Copyright Act, 1957)

According to Section 14 of the Act, “copyright” means the exclusive right subject to the  provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:(a) in the case of a literary, dramatic or musical work, not being a computer programme, -

(i) to reproduce the work in any material form including the storing of it in any medium by electronic means; (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi); (b) in the case of a computer programme,-

(i) to do any of the acts specified in clause (a); (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental. (c) in the case of an artistic work,-

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work; (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work;

 

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); 19 (d) In the case of cinematograph film, -

(i) to make a copy of the film, including a photograph of any image forming part thereof; (ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the film to the public; (e) In the case of sound recording, -

(i) to make any other sound recording embodying it; (ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions; (iii) to communicate the sound recording to the public. Explanation : For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.