- Intellectual Property Rights
Illegally Downloading Music
Open Source Software Licences
Claiming Royalties Art Work
Self Publishing Versus Publishing House
Copyright The Basics
Remedies for Copyright Infringement
Who can Claim Copyright Infringement?
Criminal Liability for Copyright Infringement
Can Ideas be Protected by Copyright?
What are Moral Rights?
How long does Copyright last?
Copyright and Websites
Copyright for Freelance Writers
Copyright in Literary, Dramatic and Musical Works
Copyright in Artistic Works
Copyright in Sound Recordings and Films
Copyright in Broadcasts
Copyright in Published editions
Copyright Licensing Agency
Computer Generated Works Copyright
Copyright Protection for Software
Copyright Technological Protection Measures
Internet Service Providers Copyright Illegal Material
Defence of Fair Dealing in Copyright Law
How to apply for a Trade Mark
Renewing a Trade Mark
Refusal of Trade Mark
Trade Marks Relative Grounds for Refusal
Defences to Trademark Infringement
Unregistered Trade Marks
Registration of Food Names
How to apply for a Patent
Renewing a Patent
Defence available to Patent Infringement
Information Commissioner Data Protection Act Powers
Protection of Company Information
Data Protection Requirements for Business
How to register a Design
Renewing a registered Design
Unregistered Design Right
Semiconductor Design Rights
- Remedies for Violations Intellectual Property Rights
Wheaton vs Peter, 33 U.S, 991, 668  was the first copyright case in the United States till held good law and continuing as quoted in the recent decisions.
|Case Title||Citation||Year||Vote||Classification||Subject Matter||Opinions||Statute Interpreted||Summary of Opinions|
|Wheaton v. Peters||33 U.S. (8 Pet.) 591||1834||5 – 2||Substantive||Copyrightability/Common law Copyright/Formalities||Majority:
|There is no such thing as common law copyright and one must observe the formalities to secure a copyright.|
|Backus v. Gould||48 U.S. (7 How.) 798||1849||Substantive||Majority:
|Copyright Act of 1831|
|Stephens v. Cady||55 U.S.(14 How.) 528||1852||9 – 0||Majority:
|Stevens v. Gladding||58 U.S.447||1854||Majority:
|Little v. Hall||59 U.S.(18 How.) 165||1856||Majority:
|Paige v. Banks||80 U.S.(13 Wall.) 608||1872||Majority:
|Perris v. Hexamer||99 U.S.674||1879||Majority:
|Trade-Mark Cases||100 U.S.82||1879||9 – 0||Non-Copyright||Constitutional basis for Trademark regulation||Majority:
|Copyright Clause does not give Congress the power to regulate trademarks|
|Baker v. Selden||101 U.S.99||1879||9 – 0||Substantive||Idea/Expression Dichotomy||Majority:
|Idea-expression divide; differences between copyright & patent law|
|Merrell v. Tice||104 U.S.557||1881||Majority:
|Because statutory procedures exist for producing evidence of copyright formality observance, evidence of at least such veracity is required to prove copyright claims.|
|Schreiber v. Sharpless||110 U.S.76||1884||Majority:
|Charges of copyright infringement do not survive the death of the accused and may not be transferred to the executors of their will.|
|Burrow-Giles Lithographic Co. v. Sarony||111 U.S.53||1884||9 – 0||Substantive||Copyrightability of photography||Majority:
|Extended copyright protection to photography.|
|Thornton v. Schreiber||124 U.S.612||1888||Majority:
|Banks v. Manchester||128 U.S.244||1888||9 – 0||Substantive||Copyrightability of laws||Majority:
|No copyright in state Supreme Court opinions.|
|Callaghan v. Myers||128 U.S.617||1888||Majority:
|Arrangements of public domain records can represent copyrightable intellectual effort.|
|Thompson v. Hubbard||131 U.S.123||1889||Majority:
|Higgins v. Keuffel||140 U.S.428||1891||Majority:
|A label describing the contents of a container is not subject to copyright.|
|Belford v. Scribner||144 U.S.488||1892||Majority:
|Webster v. Daly||163 U.S.155||1896||Majority:
|Press Pub Co v. Monroe||164 U.S.105||1896||Majority:
|Holmes v. Hurst||174 U.S.82||1899||Majority:
|Brady v. Daly||175 U.S.148||1899||Peckham(unanimous)|
|Bolles v. Outing Co.||175 U.S.262||1899||Majority:
Brown (White) (unanimous)
|Copies already distributed are out of scope of copyright infringement damage lawsuits.|
|Bleistein v. Donaldson Lithographing Company||188 U.S.239||1903||7 – 2||Substantive||Copyrightability of commercial art||Majority:
|Copyright protection of illustrations made for advertisements|
|Mifflin v. R. H. White Company||190 U.S.260||1903||Majority:
|Mifflin v. Dutton||190 U.S.265||1903||Majority:
|McLoughlin v. Raphael Tuck & Sons Co.||191 U.S.267||1903||8 – 0||Majority:
|Articles of a class made illegal by a statute that existed in the United States before the statute came into effect are still legal.|
|American Tobacco Co. v. Werckmeister||207 U.S.284||1907||Majority:
|Werckmeister v. American Tobacco Co.||207 U.S.375||1907||Majority:
|United Dictionary Co. v. G. & C. Merriam Co.||208 U.S.260||1908||9 – 0||Substantive||Formalities||Majority:
|Copyright Act of 1870, amendment in 1874||The requirement that notice reside in each copy of every edition does not extend to works published and sold abroad only.|
|White-Smith Music Publishing Co. v. Apollo Co.||209 U.S. 1||1908||9 – 0||Substantive||Public performance right in music||Majority:
|Reproduction of the sounds of musical instruments playing music for which copyright granted not a violation of the copyright.|
|Dun v. Lumbermen’s Credit Ass’n||209 U.S.20||1908||Majority:
|The existence of some copyright-infringing information in a rote reference work does not entitle the original author to seek an injunction against the printing the later article when the later article’s contents demonstrate significant original work.|
|Bobbs-Merrill Co. v. Straus||210 U.S.339||1908||9 – 0||Substantive||First-sale doctrine||Majority:
|No license to use copyrighted material. License cannot extend holder’s rights beyond statute defined by Congress.|
|Scribner v. Straus||210 U.S.352||1908||Majority:
|Globe Newspaper Co. v. Walker||210 U.S.356||1908||Majority:
|Bong v. Campbell Art Co.||214 U.S.236||1909||Majority:
|Caliga v. Inter Ocean Newspaper Co.||215 U.S.182||1909||Majority:
|Hills and Co. v. Hoover||220 U.S.329||1911||Majority:
|American Lithographic Co. v. Werkmeister||221 U.S.603||1911||Hughes|
|Kalem Co. v. Harper Bros.||222 U.S.55||1911||9 – 0||Substantive||Derivative works and Secondary liability||Majority:
|Ferris v. Frohman||223 U.S.424||1912||9 – 0||Substantive||Publication and Public Performance||Majority:
|Henry v. A.B. Dick Co.||224 U.S. 1||1912||Non-Copyright||Majority:
Lurton(McKenna, Holmes, Van Devanter)
|Bauer & Cie. v. O’Donnell||229 U.S. 1||1913||5 – 4||Non-Copyright||Intersection of patents and first-sale doctrine||Majority:
Holmes(McKenna, Lurton, Van Devanter)
|Straus v. American Publishers Association||231 U.S.222||1913||Majority:
|Order of St. Benedict of New Jersey v. Steinhauser||234 U.S.640||1914||Majority:
|When someone joins an ecclesiastical order, subject to individual state law, their income from copyright may be dedicated to that order’s common fund as much as any other income or form of property. This does not violate any part of the Constitution if the member may withdraw from the order at any time.|
|Dejonge and Co. v. Breuker & Kessler Co.||235 U.S.33||1914||Majority:
|G & C Merriam Co. v. Syndicate Pub. Co.||237 U.S.618||1915||Non-Copyright||Majority:
|Herbert v. Shanley Co.||242 U.S.591||1917||9 – 0||Substantive||Public performance of live music in business establishments||Majority:
|Copyright Act of 1909||Hotels & restaurants that perform music must compensate composers, even if the venue is not separately charging patrons to hear the music.|
|International News Service v. Associated Press||248 U.S.215||1918||5 – 3||Non-Copyright||Hot News||Majority:
|While the information found in AP news was not copyrightable and subject to publici juris, AP has a quasi-property interest during the production of “hot news”.|
|L. A. Westermann Co. v. Dispatch Printing Co.||249 U.S.100||1919||Majority:
|Ex parte Wagner||249 U.S.465||1919||Majority:
|Meccano, Ltd. v. Wanamaker||253 U.S.136||1920||Majority:
|Lumiere v. Mae Edna Wilder, Inc.||261 U.S.174||1923||Majority:
|A person or corporation cannot file suits under the Copyright Act in areas in which they do not have an office and do no business.|
|Fox Film Corporation v. Knowles||261 U.S.326||1923||Majority:
|Prestonettes, Inc. v. Coty||264 U.S.359||1924|
|Educational Films Corporation v. Ward||282 U.S.379||1931||Majority:
Sutherland(Van Devanter, BUTLER)
|Buck v. Jewell-LaSalle Realty Co.||283 U.S.191||1931||9 – 0||Substantive||Public performance right in radio broadcasts in business establishments||Majority:
|Copyright Act of 1909|
|Fox Film Corp v. Doyal||286 U.S.123||1932||9 – 0||Substantive||State government taxation of copyright royalties||Majority:
|States may tax copyright royalties, as they can patent royalties, because even though copyrights & patents are granted by the federal government, they are still private property subject to taxation.|
|Hurn v. Oursler||289 U.S.238||1933||Majority:
|George v. Victor Co.||293 U.S.377||1934|
|Douglas v. Cunningham||294 U.S.207||1935|
|Interstate Circuit v. United States||304 U.S.55||1938||Majority:
O. Roberts(McReynolds, BUTLER)
|Washingtonian Pub. Co. v. Pearson||306 U.S.30||1939||6 – 3||Substantive||Formalities||Majority:
Black (O. Roberts, Reed)
|Copyright Act of 1909||The 1909 Act’s deposit requirement did not require immediate deposit, or deposit before infringement occurs, in order to bring a suit for infringement|
|Gibbs v. Buck||307 U.S.66||1939||Majority:
|Buck v. Gallagher||307 U.S.95||1939||Majority:
|Sheldon v. Metro-Goldwyn Pictures Corp.||309 U.S.390||1940||8 – 0||Procedural||Damages||Majority:
|Copyright Act of 1909||In the case of an unauthorized adaptation, court may elect to award only a portion of an infringer’s profits to the plaintiff.|
|Watson v. Buck||313 U.S.387||1941||Majority:
|Marsh v. Buck||313 U.S.406||1941||Majority:
|Fred Fisher Music Co. v. M. Witmark & Sons||318 U.S.643||1943||5 – 3||Substantive||Renewal terms and assignment||Majority:
Black, Douglas, Murphy
|Copyright Act of 1909||The renewal of copyright for the second term is not an opportunity for an author to renegotiate terms made during the first term that extended beyond the first term’s length.|
|United States v. Paramount Pictures, Inc.||334 U.S.131||1948||7 – 1||Non-Copyright||Antitrust||Majority:
Frankfurter (in part)
|Sherman Antitrust Act||Practice of block booking and ownership of theater chains by film studios constituted anti-competitive and monopolistic trade practices.|
|Commissioner v. Wodehouse||337 U.S.369||1949||Majority:
|F. W. Woolworth Co. v. Contemporary Arts, Inc.||344 U.S.227||1952||7 – 2||Procedural||Election of remedies (Statutory Damages)||Majority:
|Copyright Act of 1909||Court may grant statutory damages, even when infringer proves its gross profits were less than the statutory award. Judges granted wide latitude when determining legal remedies based on the facts of the case.|
|Mazer v. Stein||347 U.S.201||1954||7 – 2||Substantive||Copyrightability of sculpture and Idea/Expression Dichotomy||Majority:
|Copyright Act of 1909||Extended copyright protection to functional art.|
|De Sylva v. Ballentine||351 U.S.570||1956||9 – 0||Substantive||Renewal terms and beneficiaries||Majority:
|Copyright Act of 1909||After the death of an author, the widow and children are eligible to renew copyright, equally as a class. Additionally, conditional on state laws, illegitimate children are also eligible for a share of the copyright.|
|Columbia Broadcasting System, Inc. v. Loew’s, Inc.||356 U.S.43||1958||4 – 4||Substantive||Fair use in parody||per curiam||aff’d 4-4 sub. nom., Benny v. Loew’s, 239 F.2d 532 (9th Cir. 1956)|
|Miller Music Corp. v. Charles N. Daniels, Inc.||362 U.S.373||1960||5 – 4||Substantive||Duration||Majority:
Harlan II(Frankfurter, WHITTAKER, Stewart)
|Public Affairs Press v. Rickover||369 U.S.111||1962||per curiam
|Sears, Roebuck, & Co. v. Stiffel Co.||376 U.S.225||1964||Majority:
|Compco Corp. v. Day-Brite Lighting||376 U.S.234||1964|
|Fortnightly Corp. v. United Artists Television, Inc.||392 U.S.390||1968||5 – 1||Substantive||Public performance of broadcast television||Majority:
|Receiving a television broadcast (of a licensed work) does not constitute a “performance”|
|Goldstein v. California||412 U.S.546||1973||5 – 4||Non-Copyright||Federal pre-emption of state criminal copyright law||Majority:
Douglas(Brennan, Blackmun), Marshall(Brennan, Blackmun)
|California’s state statutes criminalizing record piracy did not violate the Copyright Clause|
|Teleprompter Corp. v. Columbia Broadcasting||415 U.S.394||1974||6 – 3||Substantive||Public performance of broadcast television||Majority:
Blackmun (in part), Douglas(Burger)
|Receiving a television broadcast does not constitute a “performance”|
|Twentieth Century Music Corp. v. Aiken||422 U.S.151||1975||7 – 2||Substantive||Public performance of radio broadcasts in business establishments||Majority:
|Receiving a radio broadcast of a licensed work does not constitute a “performance”. This effectively overruled Buck v. Jewel-LaSalle Realty Co. (1931)|
|Williams & Wilkins Co. v. United States||420 U.S.376||1976||4 – 4||Substantive||Fair use in photocopies||per curiam||aff’d by an equally divided court, 420 U.S. 376, 95 S.Ct. 1344 (1975)|
|Zacchini v. Scripps-Howard Broadcasting Co.||433 U.S.562||1977||Majority:
Powell(Brennan, Marshall), Stevens
|Broadcast Music v. Columbia Broadcasting System||441 U.S. 1||1979||8 – 1||Non-Copyright||Antitrust and copyright collective rights organizations||Majority:
|Sherman Antitrust Act||The issuance by ASCAP and BMI of blanket licenses does not constitute price-fixing per se unlawful under the antitrust laws|
|Sony Corp. of America v. Universal City Studios, Inc.||464 U.S.417||1984||5 – 4||Substantive||Secondary liability and fair use in home recordings||Majority:
Blackmun(Marshall, Powell, Rehnquist)
|Copyright Act of 1976||The Betamax Case|
|Mills Music, Inc. v. Snyder||469 U.S.153||1985||5 – 4||Substantive||Termination||Majority:
White(Brennan, Marshall, Blackmun)
|Copyright Act of 1976||Assignment of royalties under the Copyright Act|
|Harper & Row v. Nation Enterprises||471 U.S.539||1985||6 – 3||Substantive||Fair use in excerpts||Majority:
|Copyright Act of 1976|
|Dowling. v. United States||473 U.S.207||1985||6 – 3||Non-Copyright||Criminal law impact of infringement||Majority:
|Clayton Antitrust Act of 1914||Copyright infringement is not theft, conversion, or fraud; illegally made copies are not stolen goods.|
|Community for Creative Non-Violence v. Reid||490 U.S.730||1989||9 – 0||Substantive||Work-made-for-hire||Majority:
|Copyright Act of 1976||Works for hire.|
|Stewart v. Abend||495 U.S.207||1990||6 – 3||Substantive||Derivative works||Majority:
|Copyright Act of 1976||Rights of the successor of a copyright interest|
|Feist Publications, Inc. v. Rural Telephone Service Co.||499 U.S.340||1991||9 – 0||Substantive||Copyrightability of Facts and Idea/Expression Dichotomy||Majority:
|Copyright Act of 1976||Affirmed the need for a minimal amount of creativity before a work is copyrightable. “Sweat of the brow” alone is not sufficient to bestow copyright.|
|Prei Inc. v. Columbia Pictures||508 U.S.49||1993||Majority:
|Fogerty v. Fantasy, Inc.||510 U.S.517||1994||9 – 0||Procedural||Attorneys Fees||Majority:
|Copyright Act of 1976||Attorney’s fees in copyright litigation may be awarded to successful defendants, as well as to successful plaintiffs|
|Campbell v. Acuff-Rose Music, Inc.||510 U.S.569||1994||9 – 0||Substantive||Fair use in Commercial Parody||Majority:
|Copyright Act of 1976||Commercial parody can be fair use.|
|Lotus Dev. Corp. v. Borland Int’l, Inc.||516 U.S.233||1995||4 – 4||Substantive||Copyrightability of software program interfaces||per curiam||Copyright Act of 1976||Scope of software copyrights.|
|Quality King Distributors, Inc. v. L’anza Research Int’l, Inc.||523 U.S.135||1998||9 – 0||Substantive||Reimportation||Majority:
|Copyright Act of 1976||First-sale doctrine applies to reimported goods|
|Feltner v. Columbia Pictures Television, Inc.||523 U.S.340||1998||9 – 0||Procedural||Right to Jury Trial on Statutory Damages||Majority:
|Copyright Act of 1976||Seventh Amendment right to jury trial in a copyright infringement case|
|New York Times Co. v. Tasini||533 U.S.483||2001||7 – 2||Substantive||Collective works||Majority:
|Copyright Act of 1976||Freelance journalists did not grant electronic republication rights for collective work.|
|Eldred v. Ashcroft||537 U.S.186||2003||7 – 2||Substantive||Term Extension||Majority:
|Copyright Act of 1976|
|Dastar Corp. v. Twentieth Century Fox Film Corp.||539 U.S.23||2003||8 – 0||Non-Copyright||Intersection of TM law with public domain works||Majority:
|Lanham Act||Trademark cannot preserve rights to a public domain work.|
|Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.||545 U.S.913||2005||9 – 0||Substantive||Secondary liability||Majority:
Ginsburg(Rehnquist, Kennedy), Breyer(Stevens, O’Connor)
|Copyright Act of 1976||Distributors of peer-to-peer file-sharing software can be liable for copyright infringement if there are “affirmative steps taken to foster infringement”.|
|Microsoft Corp. v. AT&T Corp.||550 U.S.437||2007||7 – 1||Non-Copyright||Ginsburg
Alito (Thomas, Breyer) (in all but part)
|35 U.S.C. § 271(f)(Patent Act)|
|Reed Elsevier, Inc. v. Muchnick||559 U.S.154||2010||8 – 0||Procedural||Registration||Majority:
|Copyright Act of 1976||Settlement of copyright infringement claims relating to an electronic database|
|Omega S.A. v. Costco Wholesale Corp.||562 U.S.40||2010||4 – 4||Substantive||First-sale doctrine||per curiam||Copyright Act of 1976||Affirming 541 F.3d 982 (9th Cir. 2008)|
|Golan v. Holder||565 U.S.302, 132 S. Ct. 873||2012||6 – 2||Substantive||Restoration of copyright in public domain works||Majority:
|Copyright Act of 1976|
|Kirtsaeng v. John Wiley & Sons, Inc.||568 U.S.519, 133 S. Ct. 1351||2013||6 – 3||Substantive||First-sale doctrine||Majority:
Ginsburg(Scalia (in part), Kennedy)
|Copyright Act of 1976||The first-sale doctrine applies to copyrighted works made lawfully overseas.|
|Petrella v. Metro-Goldwyn-Mayer, Inc.||572 U.S. ____||2014||6 – 3||Substantive||Laches||Majority:
|Copyright Act of 1976||The laches defense is not available in copyright infringement cases.|
|American Broadcasting Cos., Inc. v. Aereo, Inc.||573 U.S. ____||2014||6 – 3||Substantive||Public performance||Majority:
|Copyright Act of 1976|
|Star Athletica, LLC v. Varsity Brands, Inc.||580 U.S. ___||2017||6 – 2||Substantive||Useful articles||Majority:
|Copyright Act of 1976|
The principal function of Judiciary is to provide legal remedies against infringement of personal and property rights of persons. Intellectual property is inchoate property when manifested in a legally recognizable way. Property right was, till the deletion of Article 19(1)(f) of the Constitution of India, a fundamental right for citizens, but now under Article 300-A it is separately notified as a Constitutional right ensuring that no person can be deprived of his property save by the authority of law.
Article 300-A of the Constitution of India guarantees that no person shall be deprived of property save by authority of law.
This provision in reference to IP ensures the right of the inventor/author over his or her invention/work. The enforcement of contractual obligations under contracts dealing with IP tantamounts to creating the intellectual property. There are different forms of IP protection available in India:
3. Trade mark and service mark
5. Plant varieties and plant breeder’s rights (under consideration of Parliament)
6. Trade secrets (along with data protection)
7. Geographical indications
In the field of intellectual property, injunction is almost always prohibitory in nature. Till the infringement of a right is established at the trial, interlocutory injunction would constitute a temporary redress to be granted at the discretion of the court and has great deal of practical efficacy.
The interim period is sometimes very long because of the delays in the disposal of the trial. It would therefore be important for the courts to invariably impose a condition on the plaintiff to undertake to make good any damage suffered by any defendant from the injunction, should the plaintiff fail at the trial. Thus it was already within the jurisdiction of the Indian Courts to make orders under the procedural rules contained in the Code like Anton Piller order or the Mareva injunction.
Dr. Reddy’s Laboratories Limited v. Manu Kosuri And Another, 2001 (58) DRJ 241
Whether the mark/domain name is identical with or deceptively similar to the plaintiffs trade mark DR. REDDY’S for internet related services or any other business as may lead to dilution of the distinctiveness of the said trademark of the plaintiff?
Wipro Cyprus Private Limited v. Zeetel Electronics, 2010 (44) PTC 307
(1) Whether an order of interim injunction restraining the Respondent from manufacturing,selling, advertising and offering for sale using the trade mark YARDLEY or any other similar sounding expression could be granted?
(2) Whether an order of interim injunction restraining the Respondent from using the impugned name YARDLEY upon or in relation to any of their product including talcum powder, body spray and other cosmetic and toiletry preparation or any other name/marks which may be identical to or deceptively similar to the applicant corporate name, trade mark YARDLEY could be granted?
Amar Nath Sehgal v. Union of India,2005 PTC (30) 253
Whether the plaintiff has rights under Section 57 of the Copyright Act,1957 in the impugned work although the copyright in the same has been vested to the defendant and whether the defendant violated the plaintiff’s rights under Section 57 of the said Act?
Satyam Infoway Ltd. v. Sifynet Solutions Pvt. Ltd. AIR 2004 SC 3540
Whether domain name can be said to be word or name capable of distinguishing subject of trade or service made available to potential users of internet and whether principles of trade mark law and in particular, those relating to passing off, apply?
Held, yes. The original role of a domain name was no doubt to provide an address for computers on the internet. But the internet has developed from a mere means of communication to a mode of carrying on commercial activity. With the increase of commercial activity on the internet, a domain name can be said to be a word or name which is capable of distinguishing the subject of trade or service made available to potential users of the internet
Gramophone Co. Of India Ltd v. Mars Recording Pvt. Ltd. & Another 1996 PTC (16) 252
Supreme Court affirmed the decision given by the Trial Court in Bangalore and granted a temporary injunction in favor of the respondents. And further directed that the suit be tried and disposed of by the Trial Court within a period of six months.
Merck Sharp & Dohme Corporation & Ors. v. Glenmark Pharmaceuticals Ltd.
CS(OS) 586/2013, CC No. 46/2013, I.A. Nos. 9827/2013, 8048/2014 and 13626/2015 : MANU/DE/2963/2015
Whether the Defendants have infringed the Patent of the Plaintiff?
Symed Labs Ltd. v. Glenmark Pharmaceuticals Ltd.
CS (OS) No. 678/2013: MANU/DE/0163/2015
Whether suit for ad interim injunction restraining Defendants, their agents from manufacturing, selling, offering for sale, advertising or directly or indirectly dealing in product Linezolid manufactured in a manner so as to result in infringement of Plaintiff’s registered patent was liable to be granted to Plaintiff ?
Dr. Aloys Wobben and Anr. v. Yogesh Mehra and Ors.
Civil Appeal No. 6718 of 2013 : MANU/SC/0519/2014
Whether Defendant in an “infringement suit”, having raised a “counter-claim” seeking revocation of a patent, could file “revocation petition” before “Appellate Board” and that whether remedies, expressed in Section 64(1) of Patents Act, cannot be availed of by same person, simultaneously?
Kamal Trading Co. and Ors. v. Gillette U.K. Ltd.
1988 (8) PTC 1 (BOM)
whether the goodwill in the trade mark “7 O’CLOCK” stood extinguished because of nonavailability of blades with the mark in India after year 1958?
N.R. Dongre and Ors. v. Whirlpool Corpn. and Anr.
whether the exercise of discretion by the trial court is favour of the plaintiffs to grant the
interlocutory injunction is in accordance with the settled principles of law regulating grant of interlocutory injunctions or not and whether there is any cogent ground to interfere in this appeal with the exercise of discretion by the trial court?
Yahoo! Inc. v. Sanjay V. Shah and Ors.
2006 (32)PTC 263 (Del )
Whether the Trademark of the Plaintiff has been infringed?
Sholay Media and Entertainment Pvt. Ltd. and Ors. v. Parag Sanghavi and
Whether present suit filed for permanent injunction restraining infringement of registered Trademarks, infringement of Copyright, passing off, rendition of accounts, damages and delivery up, etc. against Defendants is sustainable?
The Traditional Knowledge Digital Library (TKDL) was established in the year 2001.
The Traditional Knowledge Digital Library (TKDL) is a collaborative project between the Council of Scientific and Industrial Research (CSIR) and the Department of AYUSH. The same is a home-grown effort to ensure patent offices around the world do not grant
patents for applications founded on India’s wealth of age-old Traditional Knowledge.
Digitalization of the traditional medicinal knowledge which is available in public domain in the form of existing literature is related to codified systems of Ayurveda, Unani, Siddha and Yoga.
The TKDL is a unique, proprietary database that integrates diverse knowledge systems
and languages. It is based on 148 books of prior art relating to Indian systems of medicine, available at a cost of around US$1,000.
Access to around 3,30,044 Traditional Medicinal Formulations is available in patent compatible format in five international languages under TKDL Access Agreement to 10 Patent Offices, namely EPO, USPTO, JPO, CIPO, UKPTO, IP Australia, IPO, DPMA-German, Chile and Malaysia.
The idea to establish a TKDL came into the picture amid India’s efforts to revoke the patent granted by the United States Patent and Trademark Office (USPTO) on the wound healing properties of turmeric and the patent granted by the European Patent
Office (EPO) on the antifungal properties of neem.
By using the information technology tools and the Traditional Knowledge Resource
Classification System (TKRC), the library has been successful in converting and structuring ancient texts into 34 million A4-sized pages along the lines of a patent
The TDKL is an effective mechanism for defensive protection, facilitating the prior art
search and bridging the language barrier.
The ancient texts have been translated into various languages viz. English, French,
German, Japanese and Spanish.
Anton Piller orders is Order
Other than the extensive police powers under the Copyright Act, plaintiffs have various
civil powers to enforce their right. Copyright owners and associations can employ civil
procedure to search the defendant’s premises as seize the pirated copies.
This is done via ‘Anton Piller’ orders obtained from civil courts which permit court-appointed officers, accompanied by representatives of the plaintiffs, to search premises and seize evidence without prior warning to the defendant.
Similar to John Doe Orders, these orders can be obtained unilaterally (ex-parte)
Jointly Published by Cornell University, INSEAD, and the World Intellectual Property Organization, in partnership.
The Global Innovation Index provides detailed metrics about the innovation performance of 126 countries and economies around the world. Its 80 indicators explore a broad vision of innovation, including political environment, education, infrastructure and business sophistication.
KEYWORDS:- COPYRIGHT – COMMON LAW PRINCIPLES-Infringement of a copyright-
AIR 1978 SC 1613 : (1979) 1 SCR 218 : (1978) 4 SCC 118
(SUPREME COURT OF INDIA)
|R G. Anand||Appellant|
|Delux Films and others||Respondent|
(Before : S. Murtaza Fazl Ali, Jaswant Singh And R. S. Pathak, JJ.)
Civil Appeal No. 2030 of 1968, Decided on : 18-08-1978.
Copyright Act, 1957—Section 51—Considerations—(1) There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work. (2) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy. (3) One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original. (4) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises. (5) Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence. (6) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above. (7) Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
Counsel for the Parties:
Mr. S. N. Andley, Sr. Advocate (Mr. Mahinder Narain and Rameshwar Nath Advocates of M/s. Rajinder Narain and Co. with him), for Appellant
Mr. Hardyal Hardy Sr. Advocate (M/s. H. S. Parihar and I. N. Shroff, Advocates with him), for Respondents 1 and 2.
Fazal Ali, J—This appeal by special leave is directed against the judgment of the Delhi High Court dated 23rd May, 1967 affirming the decree of the District Judge, Delhi and dismissing the plaintiff”s suit for damages against the defendants on the ground that they had violated the copyrighted work of the plaintiff which was a drama called “Hum Hindustani”.
2. The facts have been succinctly stated by the District Judge in his judgment and summarised by the High Court, and, therefore, it is not necessary for us to repeat the same all over again. We would, however, like to give a brief re”sume” of some of the striking facts in the case which may be germane for the purpose of deciding the important issues involved in this appeal. We might mention here that the High Court as also the District Judge negatived the plaintiff”s claim and prima facie the appeal appears to be concluded by finding of fact, but it was rightly argued by Mr. Andley appearing for the appellant that the principles of violation of copyright in the instant appeal have to be applied on the facts found and the inferences from proved facts drawn by the High Court which is doubtless a question of law and more particularly as there is no clear authority of this Court on the subject, we should be persuaded to go into this question without entering into findings of facts. Having heard counsel for the parties, we felt that as the case is one of first impression and needs to be decided by this Court, we should enter into the merits on the basis of the facts found and inferences drawn by the High Court and the District Judge. It is true that both the District Judge and the High Court have relied upon some well established principles to determine whether or not in a particular case a violation of copyright has taken place, but learned counsel for the appellant has challenged the validity of the principles enunciated by the High Court.
3. The plaintiff is an architect by profession and is also a playwright, Dramatist and producer of stage plays. Even before Hum Hindustani the plaintiff had written and produced a number of other plays like Des Hamara, Azadi and Election which were staged in Delhi. The subject-matter of the appeal, however, is the play entitled “Hum Hindustani”. According to the plaintiff, this play was written by him in Hindi in the year 1953 and was enacted by him for the first time on 6th, 7th, 8th and 9th February, 1954 at Wavell Theatre, New Delhi under the auspices of the Indian National Theatre. The play proved to be very popular and received great approbation from the Press and the public as a result of which the play was re-staged in February and September, 1954 and also in 1955 and 1956 at Calcutta. In support of his case the plaintiff has referred to a number of comments appearing in the Indian Express, Hindustan Times, Times of India and other papers.
4. Encouraged by the success and popularity of the aforesaid play the plaintiff tried to consider the possibility of filming it. In November, 1954 the plaintiff received a letter dated 19th November, 1954 from the second defendant Mr. Mohan Sehgal wherein the defendant informed the plaintiff that he was supplied with a synopsis of the play by one Mr. Balwant Gargi a common friend of the plaintiff and defendant. The defendant had requested the plaintiff to supply a copy of the play so that the defendant may consider the desirability of making a film on it. The plaintiff, however, by his letter dated 30th November, 1954 informed the defendant that as the play had been selected out of 17 Hindi plays for National Drama Festival and would be staged on 11th Dec. 1954, the defendant should take the trouble of visiting Delhi and seeing the play himself in order to examine the potentialities of making a film, and at that time the matter could be discussed by the defendant with the plaintiff.
5. The plaintiff”s case, however, is that some time about January, 1955 the second and the third defendants came to Delhi, met the plaintiff in his office where the plaintiff read out and explained the entire play to the defendants and also discussed the possibility of filming it. The second defendant did not make any clear commitment but promised the plaintiff that he would inform him about his re-action 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”. One Mr. Thapa who was one of the artists in the play produced by the plaintiff happened to be in Bombay at the time when the picture “New Delhi” was being produced by the defendant and informed the plaintiff that the picture being produced by the defendant was really based on the plaintiff”s play “Hum Hindustani”. The plaintiff thereupon by his letter dated 30th May, 1955 wrote to the second defendant expressing serious concern over the adaptation of his play into a motion picture called “New Delhi”. The defendant, however, by his letter dated 9th June, 1955 informed the plaintiff that his doubts were without any foundation and assured the plaintiff 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.
6. The picture was released in Delhi in Sept. 1956 and the plaintiff read some comments in the papers which gave the impression that the picture was very much like the play “Hum Hindustani” written by the plaintiff. The plaintiff himself saw the picture on the 9th Sept, 1956 and he found that the film was entirely based upon the said play and was, therefore, convinced that the defendant after having heard the play narrated to him by the plaintiff dishonestly imitated the same in his film and thus committed an act of piracy so as to result in violation of the copyright of the plaintiff. The plaintiff accordingly filed the suit for damages, for decree for accounts of the profits made by the defendants and a decree for permanent injunction against the defendants restraining them from exhibiting the film “New Delhi”.
7. The suit was contested by defendants Nos. 1 and 2 as also by other defendants who adopted the pleas raised by defendants Nos. 1 and 2.
8. The defendants, inter alia, pleaded that they were not aware that the plaintiff was the author of the play “Hum Hindustani” nor were they aware that the play was very well received at Delhi. Defendant No. 2 is a film Director and is also the proprietor of defendant No. 1 Delux Films. The defendants averred that in Nov. 1954 the second defendant was discussing some ideas for his new picture with Mr. Balwant Gargi who is a playwright of some repute. In the course of the discussion, the second defendant informed Mr. Gargi that the second defendant was interested in producing a motion film based on “provincialism” as its central theme . In the context of these discussions Mr. Gargi enquired of defendant No. 2 if the latter was interested in hearing the play called “Hum Hindustani” produced by the plaintiff which also had the same theme of provincialism in which the second defendant was interested. It was, therefore, at the instance of Mr. Gargi that the second defendant wrote to the plaintiff and requested him to send a copy of the script of the play. The defendant goes on to state that the plaintiff read out the play to the second defendant in the presence of Rajinder Bhatia and Mohan Kumar, Assistant Directors of the second defendant when they had come to Delhi in connection with the release of their film “Adhikar”, The second defendant has taken a clear stand that after having heard the play he informed the plaintiff that though the play might have been all right for the amateur stage it was too inadequate for the purpose of making a full length commercial motion picture. The defendants denied the allegation of the plaintiff that it was after hearing the play written by the plaintiff that the defendants decided to make a film based on the play and entitled it as “New Delhi”.
9. The defendants thus submitted that there could be no copyright so far as the subject of provincialism is concerned which can be used or adopted by anybody in his own way. He further averred that the motion picture was quite different from the play “Hum Hindustani” both in content, spirit and climax. The mere fact that there were some similarities between the film and the play could be explained by the fact that the idea, viz., provincialism was the common source of the play as also of the film. The defendant thus denied that there was any violation of the copyright.
10. On the basis of the pleadings of the parties, the learned trial Judge framed the following issues:
1. Is the plaintiff owner of the copyright in the play “Hum Hindustani?
2. Is the film “New Delhi” an infringement of the plaintiff”s copyright in the play “Hum Hindustani”?
3. Have defendants or any of them infringed the plaintiff”s copyright by producing, or distributing or exhibiting the film “New Delhi”?
4. Is the suit bad for misjoinder of defendants and causes of action?
5. To what relief is the plaintiff entitled and against whom?
11. Issue No. 1 was decided against the defendants and it was held by the trial Judge that the plaintiff was the owner of the copyright in the play “Hum Hindustani”. Issue No. 4 was not pressed by the defendants and was accordingly decided against them. The main case however turned upon the decision on issues Nos. 2 and 3 which were however decided against the plaintiff as the learned Judge held that there was no violation of the copy-right of the plaintiff. The plaintiff then went up in appeal to the Delhi High Court where a Division Bench of that Court affirmed the decision of the District Judge and upheld the decree dismissing the plaintiff”s suit. The findings of fact arrived at by the learned trial Judge and the High Court have not been assailed before us. The only argument advanced by the appellant was that the principles enunciated and the legal inferences drawn by the courts below are against the settled legal principles laid down by the courts in England, America and India. It was also submitted by Mr. Andley that the two courts have not fully understood the import of the violation of copyright particularly when the similarities between the play and the film are so close and sundry that would lead to the irresistible inference and unmistakable impression that the film is nothing but an imitation of the play. On the other hand, it was argued by Mr. Hardy counsel for the respondents that the two courts below have applied the law correctly and it is not necessary for this Court to enter into merits in view of the concurrent findings of fact given by the two courts. He further submitted that even on the facts found it is manifest that there is a vast difference both in the spirit and the content between the play “Hum Hindustani” and the film “New Delhi” and no question of violation of the copyright arises.
12. In order to appreciate the argument of both the parties it may be necessary to discuss the law on the subject. To begin with there is no decided case of this Court on this point. Secondly, at the time when the cause of action arose Parliament had not made any law governing copyright violations and the courts in the absence of any law by our Parliament relied on the old law passed by the British Parliament, namely, the Copyright Act of 1911.Sec. 1 sub-sec. (2) (d) defines “copyright” thus:
“(2) For the purposes of this Act, “copyright” means the sole right to produce or reproduced the work or any substantial part thereof in any material form whatsoever, to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public, if the work is unpublished, to publish the work or any substantial part thereof; and shall include the sole right.
(d) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered.”
Section 2 provides the contingencies where a copy-right could be infringed and runs thus:-
“2 (1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copy-right.”
It is, therefore, clear that the Act of 1911 defines “copyright” and also indicates the various contingencies where copyright cannot be infringed. The statute also provides exceptions which would not amount to violation of copyright.
13. In the instant case the play written by the appellant falls within S. 1 (2) (d) because it is a dramatic work. The learned District Judge has rightly held that emotions like mere ideas are not subject to pre-emption because they are common property. Quoting from the law of copyright and Movie-rights by Rustom R. Dadachanji the learned Judge observed as follows:-
“It is obvious that the underlying emotion reflected by the principal characters in a play or book may be similar and yet that the characters and expression of the same emotions be different. That the same emotions are found in plays would not alone be sufficient to prove infringement but if similar emotions are portrayed by a sequence of events presented in like manner, expression and form then infringement” would be apparent.”
Similarly in the case of Hanfstaengl v. W. H. Smith and Sons (1905) 1 Ch D 519 it has been held by Bayley, J. that “a copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.”
14. In Halsbury”s laws of England by Lord Hailsham Fourth Edition the following observations are made:
“Only original works are protected under Part I of the Copyright Act 1956, but it is not requisite that the work should be the expression of original or inventive thought for Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of a literary work, with the expression of thought in print or writing … … … … There is copyright in original dramatic works and adaptations thereof, and such copyright subsists not only in the actual words of the work but in the dramatic incidents created, so that if these are taken there may be an infringement although no words are actually copied. There cannot be copyright in mere scenic effects or stage situations which are not reduced into some permanent form.”
Similarly, it was pointed out by Copinger in his book on Copyright 11th Edition that what is protected is not the original thought but expression of thought in a concrete form. In this connection, the author makes the following observations based on the case law:
“What is protected is not original thought or information, but the original expression of thought or information in some concrete form. Consequently, it is only an infringement if the defendant has made an unlawful use of the form in which the thought or information is expressed. The defendant must, to be liable have made a substantial use of this form; he is not liable if he has taken from the work the essential ideas, however original, and expressed the idea in his own form, or used the idea for his own purposes.”
The author also points out that there is no infringement unless the plaintiff”s playwrighted work has been actually used, so that it may be said that the latter work reproduces the earlier one. In this connection, the author observes as follows:-
“A further essential matter, and one which – rather strangely – is not anywhere precisely stated in the Act of 1956 is that there can be no infringement unless use has been made, directly or indirectly, of the plaintiff”s work.”
15. Moreover,it seems to us that the fundamental idea of violation of copyright of imitation is the violation of the Eighth Commandment:”Thou shalt not steal” which forms the moral basis of the protective provisions of the Copyright Act of 1911. It is obvious that when a writer or a dramatist produces a drama it is a result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyrighted work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. It is also clear that it is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure, is sufficient to indicate that it is a copy. In Art. 418 Copinger states thus:-
“In many cases the alleged infringement does not consist of an exact, or verbatim copy, of the whole, or any part, of the earlier work, but merely resembles it in a greater or lesser degree.” In Art. 420 the author lays down the various tests to determine whether an infringement has taken place and observes as follows:-
“Various definitions of “copy” have been suggested, but it is submitted that the true view of the matter is that, where the court is satisfied that a defendant has, in producing the alleged infringement, made a substantial use of those features of the plaintiff”s work in which copyright subsists, an infringement will be held to have been committed; if he has made such use, he has exercised unlawfully the sole right which is conferred upon the plaintiff.”
16. Ball in “law of Copyright and Literary Property” page 364 points out that where the defendant materially changes the story he cannot be said to have infringed the copyright. In this connection, the author observes as follows:-
“In such composition the story is told by grouping and representing the important incidents in the particular sequence devised by the author whose claim to copyright must depend upon the particular story thus composed; and not upon the various incidents, which, if presented individually, without such unique sequential arrangement, would be common literary property. Consequently another dramatist who materially changes the story by materially varying the incidents should not be held to be an infringer.”
It is also pointed out by Mr. Ball that sometimes even though there may be similarities between the copyrighted work and the work of the defendant they may be too trivial to amount to appropriation of copyrighted material. The author observes thus:-
“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 incidential 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. They are comparable to similarities in two works of art made by different artists from the same original subject, and in the usual case are too trivial and unimportant to amount to a substantial appropriation of copyrighted material.”
The author further says that unless there is any substantial identity between the respective works in the scenes, incidents and treatment a case of infringement of copyright is not made out and observes thus:-
“But there was no substantial identity between the respective works in the scenes, incidents, or treatment of the common theme; the court held that the plaintiff”s copyrights were not infringed by the defendant”s photoplays.”
Dealing with the infringement of copyright of a play by a motion picture which appears to be an identical case in the present appeal, the author observes as follows:-
“In an action for the alleged infringement of the copyright of a play by a motion picture, wherein it appeared that both authors had used life in a boys” reform school as a background, but the only similarity between the two productions consisted of a few incidents and points in dialogue, such as one would expect to find in stories set against the same background, there was no infringement of copyright.”
To the same effect are the following observations of the author:
“Where the only evidence of similarities between two plays was based upon the author”s analysis and interpretation of an extensive list of “ parallel”, from which he inferred that many incidents, scenes and characters in the alleged infringing play were adapted from the plaintiff”s copyrighted play, but no such resemblance would be apparent to an ordinary observer, it was held that the meaning or interpretation which the author gives to his literary work cannot be accepted as a deciding test of plagiarism; and that, in the absence of any material resemblance which could be recognized by an ordinary observation, each play must be regarded as the independent work of the named author.”
17. Similar observations have been made in Corpus Juris Secundum Vol. 18 at page 139 where it is observed as follows:
“An author has, at common law, a property in his intellectual production before it has been published, and may obtain redress against anyone who deprives him of it, or, by improperly obtaining a copy, endeavors to publish or to use it without his consent.”
“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 of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by the statute on the owner of the copyright.”
This view was taken by the U. S. Supreme Court in the case of Bobbs-Merrill Company v. Isidor Straus and Nathan Straus (1907) 210 US 339.
18. In the American Jurisprudence also it is pointed out that the law does not recognize property rights in abstract ideas, nor is an idea protected by a copyright and it becomes a copyrighted work only when the idea is given embodiment in a tangible form. In this connection the following observations are made:-
“Generally speaking, the law does not recognize property rights in abstract ideas and does not accord the author or proprietor, the protection of his ideas, which the law does accord to the proprietor of personal property.”
“In cases involving motion pictures or radio or television broadcasts, it is frequently stated that an idea is not protected by a copyright or under the common law, or that there is no property right in an idea, apart from the manner in which it is expressed.”
“When an idea is given embodiment in a tangible form, it becomes the subject of common-law property rights which are protected by the courts, at least when it can be said to be novel and new.”
It was also pointed out in this book as to what constitutes colourable imitation. In this connection, the following observations have been made:-
“Infringement involves a copying, in whole or in part, either in haeca verba or by colourable variation.. … …. A “copy” as used in copyright cases, signifies a tangible object which is a reproduction of the original work. The question is not whether the alleged infringer could have obtained the same information by going to the same source used by the plaintiff in his work, but whether he did in fact go to the same source and do his own independent research. In other words, the test is whether one charged with the infringement made an independent production, or made a substantial and unfair use of the plaintiff”s work.”
“Intention to plagiarize is not essential to establish liability for infringement of a copyright or for plagiarism of literary property in unpublished books, manuscripts, or plays. One may be held liable for infringement which is unintentional or which was done unconsciously.”
“Similarity of the alleged infringing work to the author”s or proprietor”s copy- righted work does not of itself establish copyright infringement, if the similarity results from the fact that both works deal with the same subject or have the same common source …………. Nevertheless, it is the unfair appropriation of the labor of the author whose work has been infringed that constitutes legal infringement, and while identity of language will often prove that the offence was committed, it is not necessarily the sole proof; on the other hand, relief will be afforded, irrespective of the existence or nonexistence of any similarity of language, if infringement in fact can be proved.”
“The appropriation must be of a “substantial” or “material” part of the protected work … … … …. … The test is whether the one charged with the infringement has made a substantial and unfair use of the complainant”s work. 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 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.”
19. We shall now discuss some of the authorities that have been cited at the Bar as also some others with whom we have come across and which throw a flood of light on the point in issue. Dealing with the question of similarities Lord Kekewich, J. in Hanfstaengl case (supra) described various qualities of a copy and observed as follows:-
“In West v. Francis (1822) 1 B and Ald, 737, 743 Bayley J. uses language coming, as Lord Watson says, nearer to a definition than anything which is to be found in the books. It runs thus:”A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original … … … … …. … … …. …. If it were altered thus- “a copy is that which comes so near to the original as to suggest that original to the mind of every person seeing it” – the substance of the definition would be preserved and Lord Watson”s criticism would be avoided.”
The learned Judge aptly pointed out that an imitation will be a copy which comes so near to the original as to suggest original to the mind of every person seeing it. In other words, if after having seen the picture a person forms a definite opinion and gets a dominant impression that it has been based on or taken from the original play by the appellant that will be sufficient to constitute a violation of the copy-right.
20. In the case of Ladbroke (Football) Ltd. v. Nilliam Hill (Football) Ltd. (1964) I All ER 465 Lord Reid made the following pertinent observations:
“But, in my view, that is only a shortcut, and more correct approach is first to determine whether the plaintiff”s work as a whole is “original” and protected by copyright, and then to inquire whether the part taken by the defendant is substantial. A wrong result can easily be reached if one begins by dissecting the plaintiff”s work and asking, could section A be the subject of copyright if it stood by itself, could section B be protected if it stood by itself, and so on. To my mind, it does not follow that, because the fragments taken separately would not be copyright, therefore the whole cannot be.”
Lord Hodson expressed similar views at page No. 475 in the following words:-
“The appellants have sought to argue that the coupons can be dissected and that on analysis no copyright attaches to any of their component parts and accordingly no protection is available. In my opinion this approach is wrong and the coupons must be looked at as a whole. Copyright is a statutory right which by the terms of S. 2 of the Act of 1956 would appear to subsist, if at all, in the literary or other work as one entity.”
This case clearly lays down that a similarity here or a similarity there is not sufficient to constitute a violation of the copyright unless the imitation made by the defendant is substantial.
21. In the case of Corelli v. Gray (1913) 29 TLR 570 Sargant, J. observed as follows:-
“The plaintiff”s case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of the four hypotheses – namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed.”
“Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative, I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiff”s novel.”
Thus it was pointed out in this case where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, reasonable inference of colourable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by the Master of Rolls in the case of Corelli v. Gray (1914) 30 TLR 116.
22. The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited (1934) 1 Ch D 593 was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copy right was filed by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:-
“Having considered and heard this film. I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copyright could be reproduced apart from the actual picture film”.
Similar observations were made by Lord Slesser which may be extracted thus:-
“Anyone hearing it would know that it was the march called “Colonel bogey” and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is to say, there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right”.
23. In the case of Harman Pictures N. V. v. Osborne, (1967) 1 WLR 723 it was held that similarities of incidents and situations undoubtedly afforded prima facie evidence of copy and in the absence of any explanation by the defendant regarding the sources, the plaintiffs must succeed. It was however held that there was no copyright in ideas, schemes or systems or method and the copyright is confined only to the subject. In this connection Goff, J. observed as follows:-
“There is no copyright in ideas or schemes or systems or methods; it is confined to their expression …. …. …. ….. …. But there is a distinction between ideas (which are not copyright) and situations and incidents which may be …. …. …. ….. …. One must, however, be careful not to jump to the conclusion that there has been copying merely because of similarity of stock incidents, or of incidents which are to be found in historical, semi-historical and fictional literature about characters in history. In such cases the plaintiffs, and that includes the plaintiffs in the present case, are in an obvious difficulty because of the existence of common sources”.
“But I have read the whole of the script very carefully and compared it with the book and I find many similarities of detail there also…. …. …. ….. …. Again it is prima facie not without significance that apart from the burial of Captain Nolan the play ends with the very quotation which Mrs. Woodham Smith used to end her description of the battle…. …. …. ….. As Sir Andrew Clark points out, some of these might well be accounted for as being similar to other events already in the script, and in any event abridgment was necessary, but that may not be a complete answer”.
24. Similarly in the case of Donoghue v. Allied Newspapers Ltd., (1937) 3 All ER 503 it was pointed out that there was no copyright in an idea and in this connection Farwell, J. observed as follows:-
“This, at any rate, is clear, and one can start with this beyond all question that there is no copyright in an idea, or in ideas. … … … …. …. If the idea, however brilliant and however clever it may be, is nothing more than an idea, and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not until it is (if I may put it in that way) reduced into writing, or into some tangible form, that you get any right to copyright at all, and the copyright exists in the particular form of language in which, or, in the case of a picture, in the particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or look at it”.
25. Similarly in the case of Robl v. Palace Theatre Ltd., (1911) 28 TLR 69 at page No. 72 Justice Hamilton observed as follows:-
“If similarity between two works was sufficiently strong the evidence of copying would be so cogent that no one would believe any denial, but here the intrinsic evidence was really the other way …. …. …. The matter had been considered by Justice Scrutton in his book on copyright, and the conclusion there come to (Note h p. 83 of fourth edition) was that to which his own reflection during the progress of this case would have led him. He considered, therefore, that where the similarity was a mere coincidence there was no breach of copyright.
26. In the case of Tate v. Fullbrook, (1908) 77 LJ KB 577 Lord Vaughan Williams observed as follows:-
“I do not think that I need go at length through the similarities and dissimilarities of the two sketches. It is practically admitted that, so far as the words are concerned, the similarity is trifling…. …. …. ….. All that we find here is a certain likeness of stage situation and scenic effect, which, in my opinion, ought not to be taken into consideration at all where there is appreciable likeness in the words”.
27. In the case of Frederick B. Chattertom and Benjamin Webster v. Joseph Arnold Cave (1878) 3 AC 483 Lord Hatherley observed as follows:-
“And if the quantity taken be neither substantial nor material, if, as it has been expressed by some Judges, “ a fair use” only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances. They are not intended to be repeated by others or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book”.
“I think” my Lords, regard being had to the whole of this case, to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was brought, that this appeal should be dismissed, and dismissed with costs”.
28. In the case of Sheldon v. MetroGoldwyn Pictures Corporation, (1793) 81 F 2d 49 learned Judge Hand while considering a case which is very similar to the case in this appeal observed as follows:-
“But it is convenient to define such a use by saying that others may “copy” the “theme” or “ideas”, or the like, of a work, though not its “expression”. At any rate so long as it is clear what is meant, no harm is done …. …. …. ….. …. Finally, in concluding as we do that the defendants used the play pro tanto, we need not charge their witnesses with perjury. With so many sources before them they might quite honestly forget what they took; nobody knows the origin of his inventions; memory and fancy merge even in adults. Yet unconscious plagiarism is actionable quite as much as deliberate.”
“The play is the sequence of the confluents of all these means, bound together in an inseparable unity; it may often be most effectively pirated by leaving out the speech, for which a substitute can be found, which keeps the whole dramatic meaning. That as it appears to us is exactly what the defendants have done here; the dramatic significance of the scenes we have recited is the same, almost to the letter …. …. …. ….. …. It is enough that substantial parts were lifted; no plagiarist can excuse the wrong by showing how much of his work he did not pirate”.
In the aforesaid case the Court held that there was no plagiarism or violation of the copyright.
29. In the case of Shipman v. R. K. O. Radio Pictures, (1808) 100 F 2d 533 while holding that an idea cannot be the subject of copyright great stress was laid on the impression which the audience forms after seeing the copy. In this connection, Manton, J. observed as follows:-
“The Court concluded that it was the idea or impression conveyed to the audience which was the determining factor, and since the impressions were the same, held there was an infringement …. …. …. ….. …. From this case stemmed the modern law of copyright cases, with the result that it is now held that ideas are not copyrightable but that sequence of events is; the identity of impression must be capable of sensory perception by the audience.”
30. In the case of Michael V. Moretti v. People of the State of Illinois, (1960) 248 F 2d 799:356 US 947 it was held that law does not recognise property rights in ideas but only in the expression of the same in a particular manner adopted by the author. A writ of certiorari was taken against this judgment to the U.S. Supreme Court which was denied. To the same effect is an earlier decision in the case of Funkhouser v. Loew”s, (1920) 208 F 2d 185 where the following relevant observations were made on the various aspects of the matter:
“We are also mindful that the test used to determine infringement in cases of this class is whether ordinary observation of the motion picture photoplay would cause it to be recognised as a picturization of the compositions alleged to have been copied, and not whether by some hypercritical dissection of sentences and incidents seeming similarities are shown to exist …. …. …. ….. …. It recognised that there were similar incidents in the productions, but such similarities were due to the nature of the subject-matter and not to copying. Both the motion picture and plaintiff”s story “Old John Santa Fe” were set in the same geographical area and both had the typical western background …. …. …. ….. …. Appellant”s attempt to show similarities by comparing a word or phrase taken from his manuscript with the word or words appearing in the lyrics of a song in appellee”s motion picture is not in conformity with the test used in infringement cases and to which we have referred to above. We find no merit in the contention that any of the songs in defendant”s movie were taken from plaintiff”s manuscripts …. …. …. ….. …. Considering that both the movie and the manuscript presented activities of Harvey Girls, and information concerning them was received from the same source, we think it reasonable that some similarities in character portrayal could be discovered.”
31. In view of the aforesaid observation too much stress cannot always be laid on similarities or similar situations. A writ of certiorari against the judgment of the U. S. Court of Appeal to the U.S. Supreme Court was taken but certiorari was denied and the petition was rejected in limine as it appears from 348 US 843. This was also a case where a film was made on the basis of a play claimed to have been written by the plaintiff.
32. The case of Warner Bros. Pictures v. Collumbia Broadcasting System, (1928) 216 F 2d 945 is another illustration of the manner in which a copyright can be violated. Dealing with this aspect of the matter Stephens, J. observed as follows:-
“It is our conception of the area covered by the copyright statute that when a study of the two writings is made and it is plain the study that one of them is not in fact the creation of the putative authority, but instead has been copied in substantial part exactly or in transparent phrasing to produce essentially the story of the other writing, it infringes”.
A writ of certiorari was taken against the decision to the U.S. Supreme Court but was denied as reported in 348 US 971.
33. In the case of Otto Eisenchimi v. Fawcett Publications, (1958) 246 F 2d 598 Duffy, Chief Judge observed as follows:-
“An infringement is not confined to literal and exact repetition or reproduction; it includes also the various modes in which the matter of any work may be adopted, imitated, transferred, or reproduced, with more or less colourable alterations to disguise the piracy. Paraphrasing is copying and an infringement, if carried to a sufficient extent …. …. …. ….. …. The question of infringement of copy-right is not one of quantity but of quality and value”.
A writ of certiorari against this decision was taken to the U.S. Supreme Court but was denied which was reported on (1956) 2 L Ed 260:355 US 907.
34. In the case of Dorsey v. Old Surety Life Ins. Co., 98 F 2d 872 Phillips, J. observed as follows:-
“The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas …. …. …. ….. To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted material should be required”.
Similar observations were made in the case of Twentieth Century Fox Film Corporation v. Stonesifer, (1852) 140 F 2d 579 which are as follows:-
“In copyright infringement cases involving original dramatic compositions and motion picture productions, inasmuch as literal or complete appropriation of the protected property rarely occurs, the problem before the court is concrete and specific in each case to determine from all the facts and circumstances in evidence whether there has been a substantial taking from an original and copyrighted property, and therefore an unfair use of the protected work, ………………… The two words involved in this appeal should be considered and tested, not hypercritically or with meticulous scrutiny, but by the observations and impressions of the average reasonable reader and spectator ………………… We find and conclude, as did the court below, that the numerous striking similarities in the two works cannot in the light of all the evidence be said to constitute mere chance. The deduction of material and substantial unlawful copying of appellee”s original play in appellant”s motion picture is more in consonance with the record and with the probabilities of the situation therein disclosed.”
This authority lays down in unmistakable terms the cases where an infringement of the copyright would take place and has pointed out that before the charge of plagiarism is levelled against the defendant it must be shown that the defendant has taken a substantial portion of the matter from the original and have made unfair use of the protective work. The two works involved must be considered and tested not hypercritically but (sic) (nor) with meticulous scrutiny.
35. Similarly, in the case of Oliver Wendell Holmes v. George D. Hurst, (1898) 174 US 82 Justice Brown speaking for the Court and describing the incidents of a violation of the copyright observed as follows:
“It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes”.
The Judicial Committee in the case of Macmillan and Co. Ltd. v. K. and J. Cooper, 51 Ind App. 109 while pointing out the essential ingredients of the infringement of copyright Lord Atkinson observed as follows:-
“Third, that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright”.
36. In the case of Florence A. Deeks v. H. G. Wells, 60 Ind App 26 Lord Atkin speaking for the Judicial Committee summarised the nature of the evidence required to prove a violation of copyright and observed as follows:-
“Now their Lordships are not prepared to say that in the case of two literary works intrinsic evidence of that kind may not be sufficient to establish a case of copying, even if the direct evidence is all the other way and appears to be evidence that can be accepted; but such evidence must be of the most cogent force before it can be accepted as against the oath of respectable and responsible people whose evidence otherwise would be believed by the Court.”
37. In the case of N. T. Raghunathan v. All India Reporter Ltd., Bombay, AIR 1971 Bom 48 it was held that copyright law did not protect ideas but only the particular expression of ideas. In that case, the Bombay High Court however held that the defendant had copied not only the ideas but also the style of abridgment, the expression of ideas and the form in which they were expressed and thus held that a case for violation of copyright was made out.
38. K. R. Venugopala Sarma v. Sangu Ganesan, 1972 Cri LJ 1098 (Mad) was a case of infringement of copyright in picture and it was held that an infringement of the copyright was complete even though the reproduction was not exact, but the effect on the mind by study of the two pictures was that the respondent”s picture was nothing but a copy of the plaintiff”s picture. The Court while applying the various tests observed as follows :-
“Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the respondent”s pictures must get the suggestion that it is the appellant”s picture…. …. …. ….. …. One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction”.
39. To the same effect is an earlier decision of the Division Bench of the Madras High Court in the case of The Daily Calender Supplying Bureau, Sivakasi v. The United Concern, AIR 1967 Mad 381 where the Court observed as follows :-
“What is essential is to see whether there is a reproduction of substantial part of the picture. There can be no test to decide what a substantial part of a picture is. One useful test, which has been followed in several decisions of Courts, is the one laid down by Lord Herschel, L. C. in Hanfstaengl v. Bains and Co., 1895 AC 20:
“……. …. …. ….. …. it depends really, on the effect produced upon the mind by a study of the picture and of that which is alleged to be a copy of it, or at least of its design”.
40. In the case of C. Cunniah and Co. v. Balraj and Co., AIR 1961 Mad 111 the Court applying the test of resemblance observed as follows (at pages 112-13):
“Applying this test, the degree of resemblance between the two pictures, which is to be judged by the eye, must be such that the person looking at the respondent”s 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 “……. …. …. ….. We agree that this could not be the sole test, though, incidentally, the points of resemblance and dissimilarity assume some importance in the case of finding out whether, taken as a whole, the respondents” picture produces the impression in the mind of any observer, which amounts to a suggestion of the appellants” picture”.
“One picture can be said to be a copy of another picture only if a substantial part of the former picture finds place in the reproduction”.
41. In the case of Mohendra Chundra Nath Ghosh v. Emperor, AIR 1928 Cal 359 the Court while defining what a copy is held that a copy is one which is so near the original as to suggest the original to the mind of the spectator and observed as follows:-
“But the question is whether the offending pictures are copies of substantial portions of the copyright picture …. …. …. …… The figures may have been reduced in the offending pictures and slight modifications may have been introduced, or the clothes and colours may have been different, but there can be no doubt whatsoever that the main figures have an identical pose. These are not, in my opinion, coincidences due to the pictures being produced to represent common stock ideas”.
42. Similarly in the case of S. K. Dutt v. law Book Co., AIR 1954 All 570 it was held that in order to be an infringement of a man”s copyright there must be a substantial infringement of the work. A mere fair dealing with any work falls outside the mischief of the Copyright Act.
43. Similarly, in the case of Romesh Chowdhry v. Kh. Ali Mohamad Nowsheri, AIR 1965 J and K 101 a Division Bench of the Court to which one of us (Fazal Ali, J.) was a party and had written the leading judgment it was thus observed :
“It is well settled that in order to be actionable the infringement must be a colourable imitation of the originals with the purpose of deriving profit.”
44. In the case of Mohani Mohan Singh v. Sita Nath Basak, AIR 1931 Cal 233, a Division Bench of the Calcutta High Court while laying down the necessary concomitants of a colourable imitation Mukherji, J. observed as follows:-
“The question, therefore, is whether a colourable imitation has been made. Whether a work is a colourable imitation of another must necessarily be a question of fact. Similarity is a great point to be considered in this connection but mere similarity is not enough as it may be due to any one of four hypotheses as Copinger points out at page No. 134, Edn. 6, viz., (1) to mere chance, (2) to both works being taken from a common source, (3) to plaintiff”s work being taken from the defendant”s and (4) defendant”s work being taken from the plaintiff”s and each case must depend upon its own circumstances”, Guha, J. observed as follows:-
“It has to be determined whether in a particular case the work is a legitimate use of another man”s publication in the fair exercise of a mental operation deserving the character of original work.”
45. Thus, the position appears to be that an idea, principle, theme, or subject matter or historical or legendary facts being common property cannot be the subject-matter of copyright of a particular person. It is always open to any person to choose an idea as a subject-matter and develop it in his own manner and give expression to the idea by treating it differently from others. Where two writers write on the same subject similarities are bound to occur because the central idea of both is the same but the similarities or coincidences by themselves cannot lead to an irresistible inference of plagiarism or piracy. Take for instance the great poet and dramatist Shakespeare most of whose plays are based on Greek, Roman and British mythology or legendary stories like Merchant of Venice, Hamlet, Romeo Juliet, Julius Caesar etc. But the treatment of the subject by Shakespeare in each of his dramas is so fresh, so different, so full of poetic exuberance, elegance and erudition and so novel in character as a result of which the end product becomes an original in itself. In fact, the power and passion of his expression, the uniqueness, eloquence and excellence of his style and pathos and bathos of the dramas become peculiar to Shakespeare and leaves precious little of the original theme adopted by him. It will thus be preposterous to level a charge of plagiarism against the great playwright. In fact, throughout his original thinking, ability and incessant labour Shakespeare has converted an old idea into a new one, so that each of his dramas constitute a masterpiece of English literature. It has been rightly said that “every drama of Shakespeare is an extended metaphor”. Thus, the fundamental fact which has to be determined where a charge of violation of the copyright is made by the plaintiff against the defendant is to determine whether or not the defendant not only adopted the idea of the copyrighted work but has also adopted the manner, arrangement, situation to situation, scene to scene with minor charges or super-additions or embellishment here and there. Indeed, if on a perusal of the copyrighted work the defendant”s work appears to be a transparent rephrasing or a copy of a substantial and material part of the original, the charge of plagiarism must stand proved. Care however must be taken to see whether the defendant has merely disguised piracy or has actually reproduced the original in a different form, different tone, different tenor so as to infuse a new life into the idea of the copyrighted work adapted by him. In the latter case there is no violation of the copyright.
46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
1. There can be no copyright in an idea, subject-matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant”s work is nothing but a literal imitation of the copyrighted, work with some variations here and there it would amount to violation of the copy-right. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where, however, the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
47. We would now endeavour to apply the principles enunciated above and the tests laid down by us to the facts of the present case in order to determine whether or not the plaintiff has been able to prove the charge of plagiarism and violation of copyright levelled against the defendant by the plaintiff. The learned trial Judge who had also had the advantage of seeing the picture was of the opinion that the film taken as a whole is quite different from the play written by the plaintiff. In order to test the correctness of the finding of the trial Court we also got the play read to us by the plaintiff in the presence of counsel for the parties and have also seen the film which was screened at C. P. W. D. Auditorium, Mahadev Road, New Delhi. This was done merely to appreciate the judgment of the trial Court and the evidence led by the parties and was not at all meant to be just a substitute for the evidence led by the parties.
48. To begin with, we would like to give a summary of the play Hum Hindustani which is supposed to have been plagiarized by the defendants. The script of the play Ex. P-1 has been placed before us and we have gone through the same.
49. The main theme of the play is provincialism and the prejudice of persons belonging to one State against persons belonging to other States. In the play however the author chooses two families, viz., a Punjabi family and a Madrasi family to show what havoc can be caused by provincial-parochialism possessed by the two families. The Punjabi family and the Madrasi family were living as close neighbours having good and cordial relations and are on visiting terms with each other. The Punjabi consists of Dewan Chand, contractor, his wife Krishna, their grown-up daughter Chander and son Tinnu aged about 8 or 10 years. The Madrasi family however consists of Subramaniam, a Government official, his wife Minakshi and grown up son Amni and daughter Pitto who is aged about 8 or 10 years. As a result of the close association between the two families it appears that Amni the son of Subramaniam falls in love with Chander the daughter of Dewan Chand of the Punjabi family. When the parents are out Amni and Chander meet and talk. Unfortunately, however, the parents of both Amni and Chander are extremely adverse to the matrimonial union of Amni and Chander because the two families belong to two different provinces. When they get some scent of the love affairs between Amni and Chander the parents of Chander make a serious attempt to find a suitable match for her amongst their own caste namely Punjabis. Similarly, the parents of Amni also try to arrange a match for him amongst Madrasis. For this purpose, the services of a marriage broker named Dhanwantri are enlisted by both the parties without knowing that Dhanwantri was trying to negotiate marriages for both the couples. Later on, when this fact is discovered the relations of the two families become strained. Amni and Chander also persuade Dhanwantri to assist them in bringing about their marriage by persuading their parents to agree. This gives a chance to Dhanwantri to make a lot of money out of the two couples. Dewan Chand and his wife Krishna in sheer desperation hurriedly arranged the marriage of their daughter Chander to Bansi, a simpleton, son of Murari Lal who is a friend of Dewan Chand. In fact, Dewan Chand is not very impressed with Bansi but in view of the critical situation arising out of the love affair between his daughter and Amni he prefers Bansi to the Madrasi boy. When Chander and Amni come to know of this Chander asked Amni to speak to his parents in a free and frank manner and express his strong desire to marry Chander. Amni who appears to be a cowardly fellow prefers to commit suicide rather than dare to talk out this matter with his parents. Realising that no hope is left for Chander and Amni to go through the marriage ceremony both of them entered into a suicidal pact and write letters to their parents indicating their intention to commit suicide because they are not prepared to marry anybody else. Dhanwantri, however, intervenes and persuades Chander and Amni not to commit suicide as according to him they were not destined to die unless they had been actually married. Meanwhile, the parents of Amni and Chander on getting the suicide note mourn the loss of their children and it now dawns upon them that they had committed the saddest mistake of their life in refusing to marry the couple and repent for their act. Just at that time Amni and Chander appear on the scene after having been married to each other. The marriage was performed by Dhanwantri himself. Thus ends the story with the realisation by both the families that provincialism helps nobody. This in short is the story of the play written by the appellant.
50. We might mention that before the play starts the author shows some voices reciting various persons proclaiming that they come from different States like the slogan that they belong to a particular State rather than that they belong to India.
51. Analysing therefore the essential features of the play the position is as follows:-
1. That the central idea of the play is based on provincialism and parochialism.
2. The evils of provincialism are illustrated by the cordial relations of the two families being marred because of an apprehended marriage tie which according to both the families was not possible where they belonged to different States.
3. That the Madrasi boy Amni is a coward and in spite of his profound love for Chander he does not muster sufficient courage to talk the matter out with his parents.
4. That in sheer desperation while the parents of the families are trying to arrange a match for the couple belonging to the same State Amni and Chander enter into a suicidal pact and write letters to their parents intimating their intention.
5. It was only after the letters are perused by the parents that they realise the horror of parochialism and are repentant for having acted so foolishly.
6. That after this realisation comes the married couple Amni and Chander appear before the parents and thus all is well that ends well.
52. As the play was read to us by the appellant we find that it was very exquisitely presented and the plot was developed with very great skill. It must be noted however that the author in writing out the play has concentrated only on one aspect of provincialism namely whether there can be a marriage between the persons belonging to one State with those belonging to other States. This is the only aspect of provincialism which has been stressed in the play. The play does not touch any other aspect nor does it contain anything to throw light on the evils of society or that of dowry etc. We have mentioned these facts particularly because the film revolves around not only the aspect of marriage but other aspects also which are given the same importance as the problem of marriage.
53. We shall now give the summary of the film, the script of which is Ex. D-2. The film starts showing Anand a young graduate from Punjab who comes to New Delhi for a course in Radio Engineering. At the Railway Station Anand meets a Madrasi girl Janki and due to some misunderstanding an altercation between the two takes place, as a result of which Janki feels that Anand was trying to tease her. Thereafter Anand comes and stays in a Sarai opposite the Railway station, but he is allowed to stay there only for three days after which he was expected to find accommodation elsewhere. Thereafter Anand runs from house to house trying to get some accommodation but is sadly disappointed because wherever he goes he finds that in every case the landlord is not prepared to give the house to any person who does not belong to his province. We might mention here that this is one of the very important aspect of provincialism which pervades through the entire film viz., that so parochial are the landlords that they were not even prepared to let out their houses or rooms to any person coming from outside their State. This particular aspect is completely absent from the story revealed in the play written by the appellant. One Kumarswamy a South Indian attendant at the Sarai comes to the rescue of Anand and suggests to him that he should attire as a South Indian and then go to any South Indian landlord to get the house. Thereafter Anand disguised as a South Indian approaches one Iyer for giving him accommodation and Iyer is only too glad to accommodate Anand on the ground that Anand is also a South Indian. Anand then meets Subramaniam father of Janki the girl with whom he had an altercation at the station. The film then proceeds involving several sequences of the meeting between Anand and Janki. Murli Dhar the Principal of a Dancing School takes Anand as his student and there he is introduced to Janki who is Professor of Dance and Music in that Institute, Janki then discovers that Anand is a good singer and is slowly and gradually attracted towards him. Janki invited him to her house for the celebration of Pongal festival and Anand goes there as usual attired as South Indian, witnesses the dance performance of Janki. He also comes to know that Janki”s father Subramaniam does not hold any good opinion about the Punjabis. Thereafter Anand leaves the place after making an appointment with Janki to meet near Rashtrapati Bhawan the following day. When Anand returns to his house he comes to know that his father Daulat Ram had been transferred to New Delhi and was expected any moment. Daulat Ram was posted as Manager in the same commercial company in which Subramanim was employed in a subordinate position. Anand receives his parents and his grown up sister Nikki at the railway station and takes them to his house. He also brings Kumarsamy, the attendant, at the Sarai to his own house as a cook. Thereafter Anand goes out on the pretext of taking his sister Nikki around the city. When they reach the Red Fort he meets Ashok Banerjee, a young Bengali painter whom he had met earlier in connection with the search for accommodation of the house but was refused accommodation because Anand did not happen to be a Bengali. Ashok Banerjee is impressed by Nikki and requests her to allow him to make Nikki”s portrait. Leaving his sister there Anand meets Janki and both of them come to the Red Fort. When Anand and Janki meet Nikki and Ashok, Anand in order to conceal his real identity tells Janki that Nikki is the daughter of his father”s friend, which naturally angers Nikki but later Anand apologises to her and explains that he did not want Janki or her father to know that he was not a Madrasi and thus upset the love affair between Anand and Janki. Subramaniam, father of Janki takes a fancy for Anand and asks Janki to invite Anand”s father to the house so that he could negotiate Janki”s marriage with Anand. This puts Anand in a most awkward position. In order to save the situation Anand hits upon an idea by introducing his cook Kumarswamy to Subramaniam as his father. Just at that time Daulat Ram happens to pass by Subramaniam”s house and is called in by Subramaniam, but the situation is saves by Kumarswamy feigning illness as a result of which he is taken to a room where he hides his face in a blanket. Anand leaves the house and returns with a false beard posing as a Doctor. Similarly, Ashok and Nikki get attached to each other and Ashok receives a telegram from his father summoning him to Calcutta. Before he leaves Ashok frankly declares his love to Nikki and gets her consent to marry him. The love affair of Nikki however is not in the knowledge of her parents. Murli Dhar, Principal of the Institution of Dance and Music arranges a performance in which the principal role is played by Anand and Janki. Up to this time neither Janki nor her father Subramaniam had ever known the real identity of Anand but both of them had taken him to be a South Indian. We might like to add that here the picture makes a completely new departure from the story contained in the play where both the parents of the couple knew the identity of each other. Before the performance starts Anand tries to disclose his identity to Janki but is unable to do so because Janki is in a hurry. The performance is applauded by the audience which includes Subramaniam, Daulat Ram and Kumarswamy. In the theater hall where the performance is staged Kumarswamy is given a prominent place as he is taken to be the father of Anand, Daulat Ram resents this fact because Kumarswamy was his servant. After the performance Murli Dhar introduces Subramaniam Janki”s father to the audience. Murli Dhar then calls Kumarswamy and introduces him to the audience as the father of Anand. This infuriates Dault Ram who comes to the stage and gives a thrashing to Kumarswamy. It is at this stage that the entire truth is revealed and both Subramaniam and Janki come to know that Anand was not a South Indian but a Punjabi and his father was Daulat Ram. Daulat Ram also does not like the relations of his son with Janki because he thinks that if the son marries outside the caste that will create difficulties for the marriage of his daughter. Nikki, Subramaniam then starts negotiation for Janki”s marriage with a South Indian boy. Anand goes to Janki and asks her to delay the negotiations for about a month or two till Nikki”s marriage is over after which he would marry Janki. Janki feels completely let down and when she goes home she is given a serious rebuke by her father. In utter frustration Janki decides to commit suicide and leaves a suicide note. She proceeds and Jamuna river. Before she is able to jump into the river she is saved by Sadhu Ram, a Punjabi Ghee Merchant, and a friend of Subramaniam, Sadhu Ram scoffs at the people”s preference for provincialism and their lack of appreciation of intrinsic human values. He takes Janki to his own house and tells Daulat ram that she is his niece and on that basis negotiates for the marriage of Janki with Anand. Daulat ram accepts the proposal because Janki appears as a Punjabi girl. On receiving the suicide note Subramaniam feels extremely sorry and realises his mistake. In the meanwhile when Daulat Ram returns to his house he finds Ashok Banerjee on very intimate terms with Nikki. Daulat Ram gets furious and turns out Ashok from his house. Thereafter Daulat Ram arranges the marriage of his daughter Nikki with the son of one Girdhari Lal. After the marriage party comes to the house of Daulat Ram, Girdhari Lal insists upon ` 15,000 as dowry from Daulat ram. Daulat Ram does not have such a large sum of money and implores Girdhari Lal not to insist and to save his honour but Girdhari Lal is adamant. Daulat Ram tries to enlist the support of his caste men but no one is prepared to oblige him. At this juncture Ashok Banerjee appears on the scene and offers his mother”s jewellery to Daulat Ram to be given in dowry to Girdhari Lal and thus seeks to save the honour of Daulat Ram. This act of Ashok Banerjee brings about a great mental change in the attitude of Daulat Ram, who stops Nikki”s marriage with Girdhari Lal”s son and turns them out along with the men of his brotherhood. Daulat Ram declares his happiness that he has found a bigger brotherhood, namely, the Indian brotherhood and asks Ashok to marry Nikki at the same marriage Pandal. At that time Sadhu Ram requests Daulat Ram that Mohini who is none other than Janki should also be married to Anand. Sadhu Ram discloses the true identity of Janki and then Daulat Ram realises his short-sightedness and welcomes the idea of the marriage of Anand with Janki. Subramaniam who is present there feels extremely happy and blesses the proposed marriage. Ashok and Nikki as also Anand and Janki and then married and thus the film ends.
54. Analysing the story of the film it would appear that it portrays three main themes:(1) Two aspects of provincialism viz, the role of provincialism in regard to marriage and in regard to renting out accommodation (2) Evils of a caste ridden society, and (3) the evils of dowry. So far as the last two aspects are concerned they do not figure at all in the play written by the plaintiff/appellant. A close perusal of the script of the film clearly shows that all the three aspects mentioned above are integral parts of the story and it is very difficult to divorce one from the other without affecting the beauty and the continuity of the script of the film. Further, it would appear that the treatment of the story of the film is in many respects different from the story contained in the play.
55. Learned counsel for the appellant however drew our attention to para 9 of the plaint at pages 18-19 of the paper book wherein as many as 18 similarities have been detailed. The similarities may be quoted thus:-
(i) Before the actual stage play, the producer gives a narrative. He states that although we describe ourselves as Hindustanis we are not really Hindustani. He questions the audience as to what they are and various voices are heard. To say in their own provincial language that they are Punjabis, Bengalis, Gujratis, Marathas, Madrasis, Sindhis, etc. In the said Film the same idea is conveyed and the hero of the picture is shown searching for a house in New Delhi and wherever he goes he is confronted by a landlord who describes himself not as a Hindustani but as a Punjabi, Bengali, Gujarati, Maratha, Madrasi or Sindhi.
(ii) Both the said play and the said film deal with the subject of Provincialism.
(iii) Both the said play and the said film evolve drama around the lives of two families, one a Punjabi and the other a Madrasi family.
(iv) In both the said play and the said film the name of the Madrasi father is Subramanyam.
(v) Both the said play and the said film have their locale in New Delhi.
(vi) Both the said play and the said film show cordiality of relations between the two families.
(vii) Both the said play and the said film show the disruption of cordial relations as soon as the heads of the families discover the existence of a love affair between their children.
(viii) In both the said play and the said film, both the parents warn their respective children not to have anything to do with each other on pain of corporal punishment.
(ix) The entire dialogue in both the said play and the said film before and after the disruption is based upon the superiority of the inhabitants of one Province over the inhabitants of the others.
(x) In both the said play and the said film the girl is shown to be fond of music and dancing.
(xi) In both the said play and the said film the hero is shown as a coward to the extent that he has not the courage to go to his parents and persuade them to permit him to marry a girl hailing from another Province.
(xii) Both in the said play and in the said film, when the parents of the girl are discussing marrying her off to somebody the girl is listening to the dialogue from behind a curtain. Thereafter the girl runs to the boy and explains the situation to him. (xiii) In both the said play and the said film, the girl writes a letter of suicide.
(xiv) In the said play reconciliation takes place when the children of the two families, who were in love, go out to commit suicide by drowning etc., whereas in the said film, it is only the daughter who goes out to commit suicide by drowning herself in the Jamna.
(xv) In the said play the children are stopped from committing suicide by an Astrologer whereas in the said film the girl is stopped from committing suicide by a friend of the family.
(xvi) In the said play reconciliation between the two families takes place only after they have experienced the shock of their children committing suicide on account of their provincial feelings whereas in the film, the father of the girl realised his mistake after experiencing the shock of his daughter committing suicide.
(xvii) In both the said play and the said film, stress is laid on the fact that although India is one country, yet there is acute feeling of provincialism between persons hailing from its various States even though they work together and live as neighbours.
(xviii) Both in the said play and in the said film, even the dialogue centres around the same subject of provincialism.
56. In the course of the argument also our attention was drawn to a comparative compilation of the similarities in the film and the play. The learned trial Judge after considering the similarities was of the opinion that the similarities are on trivial points and do not have the effect of making the film a substantial and material imitation of the play. Moreover apart from the fact that the similarities and coincidences mentioned above are rather insignificant as pointed out by the trial Judge and the High Court, in our opinion, they are clearly explainable by and referable to only the central idea, namely, evils of provincialism and parochialism which is common to both the play and the film. Nothing therefore turns upon the similarities categorised by the plaintiff (in para 9 of the plaint), in the peculiar facts and circumstances of this case.
57. After having gone through the script of the play and the film we are inclined to agree with the opinion of the Courts below. We have already pointed out that mere similarities by themselves are not sufficient to raise an inference of colourable imitation. On the other hand, there are quite a number of dissimilarities also, for instance:
(i) In the play provincialism comes on the surface only when the question of marriage of Amni with Chander crops up but in the picture it is the starting point of the story when Anand goes around from door to door in search of accommodation but is refused the same because he does not belong to the State from which the landlord hails, as a result thereof Anand has to masquerade himself as a Madrasi. This would, therefore, show that the treatment of the subject of provincialism in the film is quite different from that in the play and is actually a new theme which is not developed or stressed in the play.
(ii) Similarly, in the play the two families are fully aware of the identity of each other whereas in the film they are not and in fact it is only when the dance performance of Janki and Anand is staged that the identity of the two families is disclosed which forms one of the important climaxes of the film. Thus, the idea of provincialism itself is presented in a manner or form quite different from that adopted in the play.
(iii) In the film there is no suicidal pact between the lovers but only a suicide note is left by Janki whereas in the play both the lovers decide to end their lives and enter into a suicidal pact and leave suicide note to this effect. Furthermore, while in the play Amni and Chander get married and then appear before the parents in the picture the story takes a completely different turn with the intervention of Sadhu Ram who does not allow Janki to commit suicide but keeps her with him disguised as his niece and the final climax is reached in the last scene when Janki”s real identity is disclosed and Subramaniam also finds out that his daughter is alive.
(iv) The story in the play revolves around only two families, namely, the Punjabi and the Madrasi families, but in the film there are three important families, namely, the Punjabi family, the Madrasi family and the Bengali family and very great stress is laid down in the film on the role played by Ashok Banerjee of the Bengali family who makes a supreme sacrifice at the end which turns the tide and brings about a complete revolution in the mind and ideology of Daulat Ram.
(v) The film depicts the evil of casteridden society and exposes the hollowness of such a society when in spite of repeated requests no member of the brotherhood of Daulat Ram comes to his rescue and ultimately it is left to Ashok Banerjee to retrieve the situation. This aspect of the matter is completely absent in the play.
(vi) The film depicts another important social evil, namely, the evil of dowry which also appears to be the climax of the story of the film and the horrors of dowry are exhibited and demonstrated in a very practical and forceful fashion. The play however does not deal with this aspect at all. The aspects mentioned above which are absent from the play are not mere surplusage or embellishments in the story of the film but are important and substantial parts of the story.
58. The effect of the dissimilarities pointed out above clearly go to show that they far outweigh the effect of the similarities mentioned in para 9 of the plaint set out above. Moreover, even if we examine the similarities mentioned by the plaintiff they are trifling and trivial and touch insignificant points and do not appear to be of a substantial nature. The mere fact that the name of the Madrasi father was Subramaniam in both the film and the play is hardly of any significance because the name of a particular person cannot be the subject-matter of copyright because these are common names.
59. After careful consideration of the essential features of the film and the play we are clearly of the opinion that the plaintiff has not proved by clear and cogent evidence that the defendants committed colourable imitation of the play and have thus violated the copyright of the plaintiff.
60. It was lastly contended by counsel for the appellant that the correspondence between the plaintiff and the defendant would show that defendant No. 2 himself was aware of the story contained in the play even before he proceeded to make the film “New Delhi”. This is undoubtedly so because defendant No.2 admits in his evidence that he had come of Delhi and the entire play was narrated to him by the plaintiff. There is however a serious controversy on the question as to whether the defendant after hearing play said that the play was not suitable for being filmed as alleged. The plaintiff however seems to suggest that defendant No. 2 was undoubtedly attracted by the play and it was on the basis of this play that he decided to make the film. However, there is no reliable evidence to show that defendant No. 2 at any time expressed his intention to film the play written by the plaintiff. There can be no doubt that defendant No. 2 was aware of the story contained in the play and a part of the film was undoubtedly to some extent inspired by the play written by the plaintiff. But the definite case of defendant No. 2 also is that he was in search of a story based on provincialism and the play written by the plaintiff may have provided the opportunity for defendant No. 2 to produce his film though with a different story, different theme, different characterisation and different climaxes.
61. Thus, applying the principles enunciated above and the various tests laid down to determine whether in a particular case there has been a violation of the copyright we are of the opinion that the film produced by the defendants cannot be said to be a substantial or material copy of the play written by the plaintiff. We also find that the treatment of the film and the manner of its presentation on the screen is quite different from the one written by the plaintiff at the stage. We are also satisfied that after seeing the play and the film no prudent person can get an impression that the film appears to be a copy of the original play nor is there anything to show that the film is a substantial and material copy of the play. At the most the central idea of the play, namely, provincialism is undoubtedly the subject matter of the film along with other ideas also but it is well settled that a mere idea cannot be the subject-matter of copyright. Thus, the present case does not fulfil the conditions laid down for holding that the defendants have made a colourable imitation of the play.
62. On a close and careful comparison of the play and the picture but for the central idea (Provincialism which is not protected by copyright), from scene to scene, situation to situation, in climax to anti-climax, pathos, bathos, in texture and treatment and purport and presentation, the picture is materially different from the play. As already indicated above, applying the various tests outlined above we are unable to hold that the defendants have committed an act of piracy in violating the copyright of the play.
63. Apart from this the two courts of fact, having considered the entire evidence, circumstances and materials before them have come to a finding of fact that the defendants committed no violation of the copyright. This Court would be slow to disturb the findings of fact arrived at by the courts below particularly when after having gone through the entire evidence, we feel that the judgment of the courts below are absolutely correct.
64. The result is that the appeal fails and is accordingly dismissed. But in the circumstances there will be no order as to costs in this Court only.
65. JASWANT SINGH, J:-. Bearing in mind the well recognised principles and tests to determine whether there has been an infringement of the law relating to copyright in a particular case which were brought to our notice by the counsel on both sides and which have been elaborately considered and discussed by my learned brother Murtaza Fazal Ali in the course of the judgment prepared by him, we proceeded at the request of the counsel to hear the script of the play “Hum Hindustani” which was read out to us by the plaintiff himself in a fascinating dramatic style and to see the film “New Delhi” produced by defendants 1 and 2, the exhibition of which was arranged by the defendants themselves. On a careful comparison of the script of the plaintiff”s copyrighted play with the aforesaid film, although one does not fail to discern a few resemblances and similarities between the play and the film, the said resemblances are not material or substantial and the degree of similarities is not such as to lead one to think that the film taken as a whole constitutes an unfair appropriation of the plaintiff”s copyrighted work. In fact, a large majority of material incidents, episodes and situations portrayed by defendants 1 and 2 in their aforesaid film are substantially different from the plaintiff”s protected work and the two social evils viz. caste system and dowry system sought to be exposed and eradicated by defendants 1 and 2 by means of their aforesaid film do not figure at all in the plaintiff”s play. As such I am in complete agreement with the conclusions arrived at by my learned brother Murtaza Fazal Ali that there has been no breath on the part of the defendants of the plaintiff”s copyright and concur with the judgment proposed to be delivered by him.
66. PATHAK, J:-. It appears from a comparison of the script of the stage play “Hum Hindustani” and the script of the film “New Delhi” that the authors of the film script have been influenced to a degree by the salient features of the plot set forth in the play script. There can be little doubt from the evidence that the authors of the film script were aware of the scheme of the play. But on the other hand, the story portrayed by the film travels beyond the plot delineated in the play. In the play, the theme of provincial parochialism is illustrated only in the opposition to a relationship by marriage between two families hailing from different parts of the country. In the film the theme is also illustrated by the hostile attitude of proprietors of lodging accommodation towards prospective lodgers who do not belong to the same provincial community. The plot then extends to the evils of the dowry system, which is a theme independent of provincial parochialism. There are still other themes embraced within the plot of the film.Nonetheless, the question can arise whether there is an infringement of copyright even though the essential features of the play can be said to correspond to a part only of the plot of the film. This can arise even where changes are effected while planning the film so that certain immaterial features in the film differ from what is seen in the stage play. The relative position in which the principal actors stand may be exchanged or extended, and embellishments may be introduced in the attempt to show that the plot in the film is entirely original and bears no resemblance whatever to the stage play. All such matters fall for consideration in relation to the question whether the relevant part of the plot in the film is merely a colourable imitation of the essential structure of the stage play. If the treatment of the theme in the stage play has been made the basis of one of the themes in the film story and the essential structure of that treatment is clearly and distinctly identifiable in the film story, it is not necessary, it seems to me, for the Court to examine all the several themes embraced within the plot of the film in order to decide whether infringement has been established. In the attempt to show that he is not guilty of infringement of copyright, it is always possible for a person intending to take advantage of the intellectual effort and labours of another to so develop his own product that it covers a wider field than the area included within the scope of the earlier product, and in the common area covered by the two productions to introduce changes in order to disguise the attempt at plagiarism. If a reappraisal of the facts in the present case had been open in this Court, I am not sure that I would not have differed from the view taken on the facts by the High Court, but as the matter stands, the trial Court as well as the High Court have concurred in the finding that such similarities as exist between the stage play “Hum Hindustani” and the film “New Delhi” do not make out a case of infringement. The dissimilarities, in their opinion, are so material that it is not possible to say that the appellant”s copyright has been infringed. This court is extremely reluctant to interfere with concurrent findings of fact reached by the Courts below and for that reason I would allow the judgment under appeal to stand. In another, and perhaps a clearer case, it may be necessary for this court to interfere and remove the impression which may have gained ground that the copyright belonging to an author can be readily infringed by making immaterial changes, introducing insubstantial differences and enlarging the scope of the original theme so that a veil of apparent dissimilarity is thrown around the work now produced. The court will look strictly at not only blatant examples of copying but also at reprehensible attempts at colourable imitation.
67. The appeal is dismissed, but without any order as to costs.
The Digital Millennium Copyright Act is most relevant to cyber-piracy law in United States. Under the DMCA, which is essentially an update of the existing copyright law, several computer and web-related copyright regulations were introduced, including
1) the heightening of the penalties for copyright infringement on the Internet,
2) making it a crime to circumvent anti-piracy measures built into most commercial softwares,
3) outlawing the manufacture, sale, or distribution of code-cracking devices used to illegally copy softwares, and
4) limiting Internet service providers from copyright infringement liability for simply transmitting information over the Internet.
Published S.R.O. 270, dated 21.1.1958, published in the Gazette of India, Ext., Pt. II, Section 3(ii), dated 21.1.1958.
1. Short title, extent and commencement .—(1) These rules may be called The Copyright Rules, 1958.(2) They extend to the whole of India.(3) They shall come into force on the date on which the Act comes into force.
2. Interpretations .—In these rules, unless the context otherwise requires,—
(a) “Act” means the Copyright Act, 1957 (14 of 1957);
[(aa) “Copyright business” means the business of issuing or granting licence in respect of any class of works in which copyright or any other right conferred by the Act subsists, and includes the functions referred to in sub-section (3) of section 34;]
(b) “Form” means a form set out in the First Schedule;
(c) “Schedule” means a Schedule to these rules; and
(d) “Section” means a section of the Act.
The Copyright Board
3. Terms and conditions of office of the Chairman and members of the Copyright Board .—(1) The Chairman and other members of the Copyright Board shall be appointed for such period not exceeding five years as the Central Government may in each case deem fit.(2) The Chairman and other members of the Copyright Board shall, on the expiry of the period of their appointment, be eligible for reappointment.(3) The Chairman or any other member of the Copyright Board may resign his office by giving three months’ notice in writing to the Central Government.(4) The Chairman and other members of the Copyright Board shall be paid such salary or honorarium as may be determined by the Central Government in each case.(5) A non-official appointed as the Chairman or other member of the Copyright Board shall be entitled to travelling allowances for journeys performed on duty and to daily allowances for the period spent on duty on the scale provided in the rules applicable to the class of officers to which the Central Government may declare him to correspond in status:Provided that it shall be competent for the Central Government to provide a different scale of such allowance if the circumstances of any case so require.(6) An official appointed as the Chairman or other member of the Copyright Board shall be entitled to such travelling allowances for journeys performed on duty and to such daily allowances for the period spent on duty as may be admissible to him as such official.(7) The other conditions of service of the Chairman and other members of the Copyright Board shall be regulated by orders made in that behalf by the Central Government from time to time.
4. Functions of the Secretary of the Copyright Board .—The Registrar of Copyrights shall perform all secretarial functions relating to the Copyright Board under the direction and control of the Chairman of the Copyright Board.
Relinquishment Of Copyright
5. Notice of relinquishment .—The author of a work desiring to relinquish under section 21 all or any of the rights comprised in the copyright in the work shall give notice to the Registrar of Copyright in accordance with Form I.
Licences For Translations
6. Application for licence .—(1) An application for a licence under section 32 to produce and publish a translation of a literary or dramatic work in any language shall be made in triplicate in accordance with Form II and shall be accompanied by the fee prescribed in the Second Schedule.(2) Every such application shall be in respect of one work only and for translation of that work into one language only.
7. Notice of application .—(1) When any such application has been made, the Copyright Board shall, as soon as possible, give notice of the application in the Official Gazette and also, if the Copyright Board thinks fit, in one or two newspapers and shall send a copy of the notice to the owner of the copyright, wherever practicable.(2) Every such notice shall contain the following particulars:—
(a) the date of the application;
(b) the name, address and nationality of the applicant;
(c) particulars of the work which is to be translated;
(d) the date and country of the first publication of the work;
(e) the name, address and nationality of the owner of the copyright as stated in the application;
(f) the language in which the work is to be translated; and
(g) the Registration Number of the work in the Register of Copyrights, if any.
8. Consideration of the application .—(1) The Copyright Board shall consider the application after the expiry of not less than one hundred and twenty days from the date of the application of the notice in the Official Gazette.(2) The Copyright Board shall give an opportunity to the applicant and also, wherever practicable, to any person claiming any interest in the copyright of the work, to be heard and may take such evidence in respect of the application as it thinks fit.(3) If more than one application for translation of the work in the same language is pending before the Copyright Board at the expiry of one hundred and twenty days after the publication in the Official Gazette of the application first received, all such applications shall be considered together.(4) If the Copyright Board is satisfied that the licence for a translation of the work in the language applied for may be granted to the applicant, or if there are more applicants than one, to such one of the applicants as, in the opinion of the Copyright Board, would best serve the interest of the general public, it shall grant a licence accordingly.(5) Every such licence shall be subject to the condition provided in sub-section (4) of section 32 relating to the payment of royalties and shall specify—
(a) the period within which the translation shall be produced and published;
(b) the language in which the translation shall be produced and published;
(c) the rate at which royalties in respect of the copies of the translation of the work sold to the public shall be paid to the owner of the copyright in the work; and
(d) the person or persons to whom such royalties shall be payable.
(6) The grant of every such licence shall, as soon as possible, be notified in the Official Gazette and in the newspapers, if any, in which the notice under rule 7 was published and a copy of the licence shall be sent to the other parties concerned.
9. Manner of determining royalties .—The Copyright Board shall determine the royalties payable to the owner of the Copyright under sub-section (4) of section 32 after taking into consideration—
(a) the proposed retail price of a copy of the translation of the work;
(b) the prevailing standards of royalties in regard to translation of works; and
(c) such other matters as may be considered relevant by the Copyright Board.
10. Extension of the period of licence .—The Copyright Board may, on the application of the licensee and after notice to the owner of the copyright, wherever practicable, if it is satisfied that the licensee was for sufficient reasons unable to produce and publish the translation within the period specified in the licence, extend such period.
11. Cancellation of licence .—The Copyright Board may, after giving the licensee an opportunity of being heard, cancel the licence on any of the following grounds, namely:—
(a) that the licensee has failed to produce and publish the translation within the time specified in the licence or within the time extended on the application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact;
(c) that the licensee has contravened any of the terms and conditions of the licence.
Compulsory Licence For Publication Of Unpublished Works, Translation And Reproduction Of Works
11-A. Application for licence .—An application for a licence under section 31-A, sub-section (1-A) of section 32 and section 32-A to publish any unpublished work or to translate any work in any language or to reproduce any published work shall be made in triplicate in accordance with Form 11-A and shall be accompanied by the fee prescribed in the Second Schedule.
11-B. Every such application shall be in respect of one work only and in respect of translation of a work into one language only.
11-C. Notice of application .—(1) A copy of such application shall be served by registered mail on the owner of copyright and if the owner of such copyright is not known or is not traceable, a copy of the application shall be served on the publisher whose name appears on the work.(2) The Copyright Board shall give an opportunity to the applicant and also, wherever practicable, to any person claiming any interest in the copyright of the work, to be heard and may take such evidence in respect of the application as it thinks fit.(3) If more than one application for translation of the work in the same language or for reproduction of the work or for publication of any unpublished work is pending before the Copyright Board, all such applications shall be considered together.(4) If the Copyright Board is satisfied that the licence for a translation of the work in the language or for reproduction of the work or for publication of unpublished work, applied for may be granted to the applicant, or if there are more applicants than one, to such one of the applicants, as in the opinion of the Copyright Board, would best serve the interests of the general public, it shall grant a licence accordingly.(5) Every such licence shall be subject to the conditions provided in sub-section (7) of section 31-A, clause (i) of sub-section (4) of section 32 and clause (i) of sub-section (4) of section 32-A relating to the payment of royalties and shall specify—
(a) the period within which such work shall be published;
(b) the rate at which royalties in respect of the copies of such work sold to the public shall be paid to the owner of the copyright in the work;
(c) in a case of translation of the work, the language in which the translation shall be produced and published; and
(d) the person or persons to whom such royalties shall be payable.
(6) The grant of every such licence shall, as soon as possible, be notified in the Official Gazette and a copy of the licence shall be sent to the other parties concerned.
11-D. Manner of determining royalties .—The Copyright Board shall determine the royalties payable to the owner of the copyright under sub-section (7) of section 31-A, clause (i) of sub-section (4) of section 32 and clause (i) of sub-section (4) of section 32-A after taking into consideration:
(a) the proposed retail price of a copy of such work;
(b) the prevailing standards of royalties in regard to such works; and
(c) such other matters as may be considered relevant by the Copyright Board.
11-E. Extension of the period of licence .—The Copyright Board may, on the application of the licensee and after notice to the owner of the copyright, wherever practicable, if it is satisfied that the licensee was for sufficient reasons unable to produce and publish the translation or reproduce the work or publish the unpublished work within the period specified in the licence, extend such period.
11-F. Cancellation of licence .—The Copyright Board may, after giving the licensee an opportunity of being heard, cancel the licence on any of the following grounds, namely:—
(a) that the licensee has failed to produce and publish such work within the time specified in the licence or within the time extended on the application of the licensee;
(b) that the licence was obtained by fraud or misrepresentation as to any essential fact;
(c) that the licensee has contravened any of the terms and conditions of the licence.
11-G. Notice for termination of licence .—Notice for termination of licence under proviso to sub-section (1) or sub-section (2) of section 32-B shall be served on the person holding the licence by the owner of copyright in Form 11-B of the First Schedule to these rules.]
12. Conditions for submission of applications for registration of copyright societies .—(1) Any association of persons, whether incorporated or not, comprising seven or more owners of copyright (hereinafter referred to as “the Applicant”) formed for the purpose of carrying on the business of issuing or granting licences in respect of any class of works in which copyright subsists or in respect of any other right conferred by the Act may file with the Registrar of Copyrights an application in Form II-C for submission to the Central Government for grant of permission to carry on such business and for its registration as a copyright society.(2) An application under sub-rule (1) shall be signed by all the members of the Governing Body (by whatever name called) and the Chief Executive of the Applicant (who need not be a member of the Applicant).
13. Application for registration by performing right societies .—A performing right society functioning in accordance with the provisions of section 33 on the date immediately before the coming into force of the Copyright (Amendment) Act, 1994 (38 of 1994), and desirous of carrying on the business as a copyright society under the Act shall submit an application in Form II-C to the Registrar of Copyrights as early as possible but not later than ten months from the date of commencement of the said Act.
14. Conditions for grant of permission to carry on copyright business .—An Applicant including a performing right society referred to in rule 13 for registration of it as a copyright society shall not be eligible to be considered for such registration unless—
(i) the instrument by which the Applicant is established or incorporated creates a commitment on it to deal with only copyright business and other activities ancillary thereto; and
(ii) the Applicant is willing to comply with the provisions of the Act and the rules made thereunder.
Explanation .—In this rule, and in rule 14-A, “instrument” means the memorandum and articles of association.
14-A. Documents accompanying applications .—Every application made under rule 12 or rule 13 shall be accompanied by—
(a) a true copy of the instrument by which the Applicant is established or incorporated;
(b) the consent in writing of the individuals named in the application to act as members of the Governing Body (by whatever name called) of the Applicant;
(c) a declaration containing the objectives of the Applicant, the bodies through which it will function and arrangements for accounting and auditing;
(d) an undertaking to the effect that the instrument by which the application is established or incorporated provides for conforming the same to the provisions of the Act and these rules.
14-B. Conditions for registration of a copyright society .—(1) When an application for registration is submitted to the Central Government through the Registrar of Copyrights, that Government may, within sixty days from the date of its receipt by the Registrar of Copyrights either register the Applicant as a copyright society or, if—
(i) the Applicant has no professional competence to carry on its business or has not sufficient funds to manage its affairs; or
(ii) there exists another copyright society registered under the Act for administering the same class of works and it is functioning well; or
(iii) the Central Government has reason to believe that the members of the Applicant are not bona fide copyright owners or they have not voluntarily signed the instrument setting up the Applicant and the application for registration; or
(iv) the application is found to be incomplete in any respect, reject the applications:
Provided that no such application shall be rejected without giving the Applicant an opportunity of being heard.(2) Upon the registration of a copyright society by the Central Government, the Registrar of Copyrights shall issue a Certificate of Registration in Form II-D under his hand and seal.(3) On and from the date of its registration as specified in the Certificate of Registration, the copyright society shall be entitled to commence and carry on the permitted copyright business in the name by which it has been so registered.
14-C. Procedure for holding inquiry .—If the Central Government, on a complaint of the Registrar of Copyrights or of any owner of rights, has reason to believe that a copyright society is being managed in a manner detrimental to the interests of the owners of rights concerned, it may after making an inquiry in the following manner, cancel or suspend the registration of the copyright society made under these rules, namely:—
(i) The Central Government shall provide a copy of the complaint to the society and require the society to submit within such time as may be specified by the Central Government a written statement of its defence and to state whether it desires to be heard.
(ii) If, after considering the written statement furnished by the society, the Central Government is satisfied that a prima facie case is established, it shall order an inquiry into the allegations and appoint an Inquiry Officer not below the rank of a Deputy Secretary to the Government of India for holding the inquiry.
(iii) On being appointed as such, the Inquiry Officer shall conduct the inquiry having regard to the principles of natural justice.
(iv) The Inquiry Officer may, if he consider it necessary, engage a Chartered Accountant or an Audit Officer in the office of the Comptroller and Auditor-General of India to assist him in the inquiry. The concerned copyright society shall render all assistance and shall make available all such documents as may be called for by the Inquiry Officer to enable him to complete the inquiry within a period of three months or such further time as may be allowed by the Central Government.
(v) If, according to the findings of the Inquiry Officer, the complaints against the copyright society are found to be true or if the society fails to cooperate with the Inquiry Officer, the Central Government shall cancel the registration of the copyright society.
14-D. Suspension of registration and appointment of administrator .—If, pending inquiry under sub-section (4) of section 33, the Central Government is of the opinion that in the interests of the owners of rights concerned, it is necessary so to do, it may, by order, suspend the registration of the society for a period not exceeding one year as may be specified in that order and shall appoint an administrator to discharge the functions of the copyright society.
14-E. Powers and functions of the administrator .—(1) On the appointment of the administrator referred to in rule 14-D under sub-section (5) of section 33, all powers of the copyright society shall vest in him and all other representative bodies or committees of the copyright society other than the General Body shall stand dissolved.(2) The administrator shall, within six months before the expiry of the period of suspension, arrange election for reconstituting the dissolved bodies failing which, the bodies so superseded shall stand revived at the end of the period of suspension for their remaining term, excluding the period of suspension.
14-F. Cancellation of registration of a copyright society .—The registration of a copyright society as such may be cancelled by the Central Government, if—
(a) any of the particulars furnished in the application for registration is, at any time, found to be untrue or incorrect and misleading in any manner;
(b) after holding an inquiry by an officer duly appointed by the Central Government and giving the copyright society a reasonable opportunity of being heard, the Central Government is satisfied that the copyright society is being managed in a manner detrimental to the interests of the owners of rights concerned or if the copyright society persistently fails to manage its affairs properly or if it persistently fails to properly maintain its accounts and get them audited or it utilises its funds for purposes other than the copyright business.
14-G. Conditions subject to which a copyright society may accept authorisation and an owner of rights may withdraw such authorisation .—(1) Copyright society may accept from an owner of rights or his duly authorised agent exclusive authorisation to administer any right in a work if such owner or such agent enters into an agreement, in writing with the copyright society specifying the rights to be administered, the duration for which such rights are authorised to be administered the quantum of fees agreed to and the frequency at which such fees shall be paid by the copyright society in accordance with its Scheme of Tariff and Distribution.(2) The owner of copyrights shall without prejudice to the rights under the agreement and subject to the condition of a prior notice of sixty days be free to withdraw such authorisation in case the copyright society fails to fulfil its commitments as laid down in the agreement.
14-H. Conditions subject to which a copyright society may issue licences, collect fees and distribute such fees .—(1) A copyright society may issue licences and collect fees in accordance with its Scheme of Tariff in relation to only such works as it has been authorised to administer in writing by the owners of rights and for the period for which it has been so authorised.(2) The distribution of fees collected shall be subject to a deduction not exceeding fifteen per cent. of the collection on account of administrative expenses incurred by the copyright society.
14-I. Procedure for obtaining approval of owners of rights for collection and distribution of fees, etc .—Every copyright society shall maintain the following registers at its Registered or Administrative Office:—
(i) A register of owners of copyright and other rights to be called the “Register of Owners” in respect of which the copyright society has been authorised by the owners to issue or grant licences. The Register shall contain the names of the owners, their addresses, the nature of rights authorised to be administered by the copyright society, date of publication of the work, the date on which the copyright society becomes entitled to and the duration of such right.
(ii) A register to be called the “Register of Agreements” containing a copy of every agreement entered into by the copyright society with the owners for the purpose.
(iii) A register to be called the “Register of Fees” containing particulars of fees and mentioning the name of persons or organisations from whom the fees have been realised, the amount so realised and the date of realisation.
(iv) A register to be called the “Disbursement Register” containing details of disbursements made to each owner of copyright, categorywise, mentioning the name of the owner, nature of his copyright and the date and amount of disbursement made to him.
14-J. Tariff Scheme .—As soon as may be, but in no case later than three months from the date on which a copyright society has become entitled to commence its copyright business, it shall frame a scheme of tariff to be called the “Tariff Scheme” setting out the nature and quantum of fees or royalties which it proposes to collect in respect of such copyright or other rights administered by it.
14-K. Distribution Scheme .—(1) As soon as may be, but in no case later than three months from the date on which a copyright society has become entitled to commence its copyright business, it shall frame a scheme to be called the “Distribution Scheme” setting out the procedure for collection and distribution of the fees or royalties specified in the Tariff Scheme among the owners of copyright or other rights whose names are borne on its Register of Owners [maintained under clause (i) of rule 14-I for the approval of such owners.(2) Any distribution under the Distribution Scheme shall, as far as possible, be in proportion to the income of the copyright society from actual use of the work or works of each owner of rights.
14-L. Meeting of copyright societies .—(1) As soon as the Tariff Scheme and the Distribution Scheme have been prepared, the copyright society shall call a general meeting of the owners of rights whose names are recorded in the Register of Owners to approve the same.(2) A notice of not less than twenty-one clear days shall be given to every such owner of rights of the meeting and a copy each of the proposed Tariff Scheme and Distribution Scheme shall be annexed to the notice.(3) The notice under sub-rule (2) shall specify that any owner of rights who objects to the Tariff Scheme or Distribution Scheme shall be entitled to withdraw the authorisation given to the copyright society to administer any right in his work.(4) The copyright society shall keep a record of the owners of rights who have given their approval and those who have objected thereto.(5) Approval by owner of rights for the Schemes shall be by a majority of such owners present in persons.(6) The quorum for a general meeting shall be one-third of the members.(7) The copyright society shall not amend an approved Tariff Scheme or Distribution Scheme except with the consent of the owners obtained at a subsequent general meeting called for the purpose.
14-M. Accounts and audit .—(1) Every copyright society shall maintain proper accounts of the fees and royalties collected in a financial year, payments made out of such collections to the owners of rights and other expenditure incurred for meeting administrative expenses and related matters with the approval of the owners or rights.Provided that a copyright society shall not spend more than fifteen per cent. of its collection towards its administrative expenses.(2) Every copyright society shall get its accounts audited by a Chartered Accountant annually.
14-N. Annual general meeting of owners of rights .—(1) Every copyright society shall, within a period of twelve months from the holding of a meeting in pursuance of sub-rule (1) of rule 14-L, hold a general meeting of owners of rights, herein called the annual general meeting of owners:Provided that a special meeting of the owners of rights may also be held, if considered necessary.(2) The meetings of owners of rights shall be held in the town or city in which its registered or Administrative Office is situated and the notice calling the meeting shall specify the time, date and address of the venue of the meeting.
14-O. Documents to be presented in the annual general meeting of owners of rights .—Every copyright society shall place before its annual general meeting the following documents, namely:—
(i) an up-to-date list of the owners of rights, their names and addresses as recorded in the Register of Owners maintained by the copyright society, as provided in sub-rule (1) of rule 14-I;
(ii) audited accounts of the society for the previous year;
(iii) the Tariff Scheme;
(iv) the Distribution Scheme;
(v) a statement approved by its Governing Body (by whatever name called) setting out a full and detailed account of all its activities during the previous year; and
(vi) details of budget estimates for the succeeding year and a programme of action for the succeeding year.
14-P. Returns to be filed by the copyright societies with the Registrar of Copyrights .—Every copyright society shall file a return called the Annual Return with the Registrar of Copyrights within one month from the conclusion of each annual general meeting of owners setting out the following details, namely:—
(i) the date of the annual meeting of owners held immediately preceding the filing of the Annual Return, the number of owners who attended the meeting in person or by proxy, and the minutes of such meeting;
(ii) the up-to-date list of the owners of rights, their names and addresses as recorded in the Register of Owners maintained by the copyright society, as provided in rule 14-I;
(iii) audited accounts of the copyright society;
(iv) the Tariff Scheme;
(v) the Distribution Scheme; and
(vi) a statement approved by its Governing Body or Board of Directors setting out a full and detailed account of all its activities during the year in relation to the rights of the owners.]
Registration Of Copyright
15. Form of Register of Copyrights .— [(1) The Register of Copyrights shall be kept in six parts as follows:—Part I : Literary works other than computer programmes, tables and compilations including computer data bases and Dramatic Works.Part II : Musical Works.Part III : Artistic Works.Part IV : Cinematograph Films.Part V : Sound Recordings.Part VI : Computer Programmes, tables and compilations including computer data bases.](2) The Register of Copyrights shall contain the particulars specified in Form III.
16. Application for Registration of Copyright .—(1) Every application for registration of copyright shall be made in accordance with Form IV and every application for registration of changes in the particulars of copyright entered in the Register of Copyrights shall be made in accordance with Form V.(2) Every such application shall be in respect of one work only, shall be made in triplicate and shall be accompanied by the fee specified in the Second Schedule in this behalf.[(3) The person applying for registration shall give notice of his application to every person who claims or has any interest in the subject-matter of the copyright or disputes the rights of the application to it.](4) If no objection to such registration is received by the Registrar of Copyrights within thirty days of the receipt of the application by him, he shall, if satisfied about the correctness of the particulars given in the application, enter such particulars in the Register of Copyrights.(5) If the Registrar of Copyrights receives any objection for such registration within the time specified in sub-rule (4), or, if he is not satisfied about the correctness of the particulars given in the application he may, after holding such inquiry as he deems fit, enter such particulars of the work in the Register of Copyrights as he considers proper.(6) The Registrar of Copyrights shall, as soon as may be, send, wherever practicable, a copy of the entries made in the Register of Copyrights to the parties concerned.
17. Correction of entries in the Register of Copyrights .—The Registrar of Copyrights may, on his own motion or on an application of any interested person, amend or alter the Register of Copyrights in the manner specified in section 49 after giving, wherever practicable, to the person affected by such amendment or alteration, an opportunity to show cause against such amendment or alteration and communicate to such person the amendment or alteration made.
18. Indexes .—(1) There shall be kept at the Copyright Office the following indexes for each part of the Register of Copyrights, namely:—
(i) a general Author Index;
(ii) a general Title Index;
(iii) an Author Index of works in each language; and
(iv) a Title Index of works in each language.
(2) Every index shall be arranged alphabetically in the form of cards.
19. Inspection of the Register of Copyrights and Indexes .—The Register of Copyrights and indexes thereof shall at all reasonable times be open to inspection by any person in such manner and subject to such conditions as the Registrar of Copyrights may specify.
20. Copies and extracts of the Register of Copyrights and indexes .—(1) Any person shall be entitled to take copies of, or make extracts from, the Register of Copyrights or indexes on payment of the fee specified in the Second Schedule subject to such supervision as the Registrar of Copyrights may arrange.(2) The Registrar of Copyrights shall, on an application made in that behalf and on payment of the fee specified in the Second Schedule, furnish a certified copy of any entries made in the Register of Copyrights and indexes thereof.
[MAKING OF SOUND RECORDINGS]
21. Making of records .— [(1) Any person intending to make sound recordings under clause (j) of sub-section (1) of section 52 shall give a notice of such intention to the owner of the copyright and to the Registrar of Copyrights at least fifteen days in advance of making of the sound recordings and shall pay to the owner of the copyright, alongwith the notice, the amount of royalties due in respect of all the sound recordings to be made at the rate fixed by the Copyright Board in this behalf and provide copies of all covers and labels with which the sound recordings are to be sold.](2) Such notice shall contain the following information, namely:—
(a) the particulars of the work in respect of which [sound recording] are to be made;
(b) alterations [* * *], if any, which are proposed to be made for the adaptation of the work to the [sound recording];
(c) the name, address and nationality of the owner of the copyright in the work;
(d) particulars of the [sound recording] made previously recording the work;
(e) the number of [sound recording] intended to be made; and
(f) the amount paid to the owner of the copyright in the work by way of royalties and the manner of payment.
Importation Of Infringing Copies
22. Importation of infringing copies .—Every application under sub-section (1) of section 53, shall be made in accordance with Form VI and shall be accompanied by the fee specified in the Second Schedule.
23. Procedure for examination of infringing copies .—The Registrar of Copyrights or the person authorised by him in this behalf shall, in taking action under sub-section (2) of section 53, act in collaboration with Customs authorities.
24. Mode of making applications, etc .—Every application, notice, statement or any other document to be made, given, filed, or sent under the Act or under these Rules may, unless otherwise directed by the authority concerned, be sent by hand or pre-paid registered post.
25. Mode of communication by the Copyright Board, etc.—Every written intimation from the Copyright Board, the Copyright Office or the Registrar of Copyrights shall be deemed to have been duly communicated to any person if such intimation is sent to the known address of such person by pre-paid registered post.
26. Fees .—(1) The fees payable under this Act in respect of any matter shall be as specified in the Second Schedule.(2) The fees may be paid to the Registrar of Copyrights, New Delhi, by a postal order or Bank draft issued by a Scheduled Bank as defined in the Reserve Bank of India Act, 1934 (2 of 1934), or by deposit into a Government Treasury or a branch of the Reserve Bank of India or the State Bank of India under the head of Account: Major Head—“XLVI-Miscellaneous”, Minor Head “Naturalisation, Passport and Copyright Fees”.(3) Postal orders and bank drafts shall be crossed and drawable in New Delhi.(4) Payment by bank drafts shall not be valid unless the amount of bank commission is included therein.(5) Where payment is made by deposit in a Government Treasury or a branch of the Reserve Bank of India or the State Bank of India, the challan evidencing the payment shall be sent to the authority concerned by pre-paid registered post.
27. Right of audience .—In any proceedings before the Copyright Board or the Registrar of Copyrights any party may appear and be heard either in person or by a pleader or other person duly authorised by such party.
28. Costs .—The costs of, and incidental to, the proceedings before the Copyright Board or the Registrar of Copyrights shall be in the discretion of the Copyright Board or the Registrar of Copyrights, as the case may be.
NOTICE OF RELINQUISHMENT OF COPYRIGHT
[See rule 5]
ToThe Registrar of Copyrights,Copyright Office,New Delhi.Sir,In accordance with section 21 of the Copyright Act, 1957 (14 of 1957), I hereby give notice that, with effect from the date of this notice, I do relinquish, to the extent specified in the enclosed affidavit, my rights in the work described in the said affidavit.
FORM OF AFFIDAVIT REFERRED TO ABOVE
I…………….. of (full name in block letters) ……………….. do hereby or (address) solemnly affirmation state that—(1) I am the author of the work described in the statement below;(2) I am the owner of the copyright in the said work to the extent specified in the said statement; and(3) I do hereby relinquish my rights in the said work to the extent specified in the said statement :
Description of the work :(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).
(b) Title of the works.
(c) Full name, address and nationality of the author.
(d) Language of the work.
(e) Name, address and nationality of the publisher.
(f) Year of first publication.
(g) Country of first publication.
(h) If the copyright in the work is regstered under section 45, the Registration number.
2. Rights owned by the deponent on the date of the affidavit.(If the rights are owned jointly with others, state names, addresses and nationalities of the joint owners.)3. Extent to which rights are relinquished.4. Reasons for reliquishment of the rights.(The information given here will be kept strictly confidential).5. Remarks, if any.Place……………………………..Date……………………………..
Solemnly affirmed before me by………. (Name of deponent in block letters) who is known to me personally.Who is identified to me by…………………….(Name of identifier in block letters) who is known to me personally.Place…………….Date……………..
(Signature and seal of the Magistrate)
Application for a licence for translation
[See rule 6]
(To be submitted in triplicate)
ToThe Registrar of Copyrights/Secretary,Copyright Board,Copyright Office,New Delhi.Sir,In accordance with section 32 of the Copyright Act, 1957 (14 of 1957), I hereby apply to the Copyright Board for a licence to produce and publish a translation of the work in accordance with the particulars given in the enclosed statement.2. I hereby undertake to abide strictly by the terms and conditions of the licence, if granted to me.Yours faithfully,Place……………………….Date……………………….
1. Full name of the applicant……………..(in block letters)2. Full address and nationality of the applicant.3. Telegraphic address, if any.4. Description of the work :
(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).
(b) Title of the work.
(c) Full name, address and nationality of the author and if the author is deceased, the date of his decease.
(d) Language of the work.
(e) Name, address and nationality of the publisher.
(f) Year of first publication.
(g) Country of first publication.
(h) Price of a copy of the work.
(i) If the copyright in the work is registered under section 45, the Registration number.
5. Language into which the work is proposed to be translated.6. Full name, qualifications and address of the translator.7. Qualification of the applicant to produce and publish the translation.8. Number of copies of the translation proposed to be published.9. Estimated cost of production and publication of the translation.10. Proposed retail price per copy of the translation.11. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner.12. Means of the applicant for payment of the royalty.13. Whether the prescribed fee has been paid and, if so, particulars of payment (give Postal Order/Bank Draft/Treasury challan number).14. (a) Full name, address and nationality of the person competent to issue a licence for translation.
(b) Whether the applicant was able to find the said person.
(c) Whether the applicant had requested and had been defined authorisation by the said person to produce and publish the translation.
(d) If the applicant was unable to find that owner, whether he had sent a copy of the request for authorisation to the publisher. If so, the date on which the copy was sent.
15. Whether the author of the work has withdrawn from circulation copies of the work.16. (a) Whether a translation in the same language has been published before.
(b) Whether the earlier translation is out-of-print.
(c) Full name, address and nationality of the earlier translator and, if the said translator is deceased, the date of his decease.
(d) Title of the earlier translation.
(e) Full name, address and nationality of the publisher of the earlier translation.
(f) Year of publication.
(g) Price per copy of the earlier translation.
(h) If the earlier translation is registered under section 45, the Registration number.
(i) Rate and amount of royalty paid to the copyright owner in respect of the earlier translation, if known.
17. (a) Whether translation has been made into any language other than the language stated in 5 above.
(b) Full name, address and nationality of the translator and, if the said translator is deceased, the date of his decease.
(c) Title of the translation.
(d) Language of the translation.
(e) Full name, address and nationality of the publisher of the translation.
(f) Year of publication.
(g) Price per copy of the translation.
(h) If the translation is registered under section 45, the Registration number.
(i) Rate and amount of royalty paid to the copyright owner, if known.
18. Remarks, if any.19. List of enclosures.Place……………………………………Date…………………………………….
APPLICATION FOR A LICENCE FOR PUBLICATION/TRANSLATION/REPRODUCTION
[See Rule 11-A]
(To be submitted in triplicate)
ToThe Registrar of Copyrights/Secretary,Copyright Board,Copyright Office,New Delhi.Sir,1. In accordance with section 31/32/32A of the [Copyright Act, 1957 (14 of 1957)], I hereby apply to the Copyright Board for a licence to publish an unpublished Indian work, or reproduce a published work or to translate a work in accordance with the particulars given in the enclosed Statement.2. I hereby undertake to abide strictly by the terms and conditions of the licence, if granted to me.3. I hereby verify that the particulars given in this Form are true to the best of my knowledge, belief and in Formation and nothing has been concealed therefrom.Place…………………………..Date……………………………
1. Full name of the applicant…………..(In block letters)2. Full address and nationality of the applicant.3. Telegraphic address, if any.4. Description of the work :
(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).
(b) Title of the work.
(c) Full name, address and nationality of the author and if the author is deceased, the date of his decease.
(d) Language of the work.
(e) Name, address and nationality of the publisher.
(f) Year of first and last publication.
(g) Country of first and last publication.
(h) Price of a copy of the work.
(i) If the copyright in the work is registered under section 45, the Registration Number.
5. If the licence is applied for translation, state :
(a) Language into which the work is proposed to be translated.
(b) Full name, qualifications and address of the translator.
(c) Qualifications of the applicant to produce and publish the translation.
6. Indicate the purpose for which the licence is required.7. Number of copies of work proposed to be published under the licence applied for.8. Estimated cost of the work to be published.9. Proposed retail price per copy of the work.10. Rate of royalty, which the applicant considers reasonable, to be paid to the copyright owner.11. Means of the applicant for payment of the royalty.12. Whether the prescribed fee has been paid and, if so, particulars of payment (give Postal Order/Bank Draft/Treasury Challan number).13. (a) Full name, address and nationality of the person competent to issue a licence.
(b) Whether the applicant after due diligence on his part was unable to find the owner.
(c) Whether the applicant has requested and had been denied authorisation by the said person to produce and publish the translation or reproduce the work or publish the unpublished work.
(d) If the applicant was unable to find the owner, whether he had sent a copy of the request by registered air mail post to the publisher whose name appears on the work. If so, the date on which the copy was sent.
14. Whether the author of the works has withdrawn from circulation copies of the work.15. In case of application for translation furnish following additional in Formation :—
(a) Whether a translation in the same language has been published before.
(b) Whether the earlier translation is out of print.
(c) Full name, address and nationality of the earlier translator and if the said translator is deceased, the date of his decease.
(d) Title of the earlier translation.
(e) Full name, address and nationality of the publisher of the earlier translation.
(f) Year of publication.
(g) Price per copy of the earlier translation.
(h) If the earlier translation is registered under section 45, the Registration Number.
(i) Rate and amount of royalty paid to the copyright owner in respect of the earlier translation, if known.
16. (a) Whether translation has been made into any language other than the language stated in 5 above.
(b) Full name, address and nationality of the translator and if the said translator is deceased, the date of his decease.
(c) Title of the translation.
(d) Language of the translation.
(e) Full name, address and nationality of the publisher of the translation.
(f) Year of publication.
(g) Price per copy of the translation.
(h) If the translation is registered under section 45, the Registration Number.
(i) Rate and amount of royalty paid to the copyright owner, if known.
17. Remarks, if any.18. List of enclosures.Place………………………………..Date………………………………….
[See rule 11-G]
ToSir,[In accordance with first proviso to sub-section (1) or the first proviso to sub-section (2) of section 32B of the Copyright Act, 1957 (14 of 1957)], I hereby give notice, that copies of translation/reproduction of the work given below (mention language) have been published by me/under my authorization.Place………………………………..Date…………………………………
1. Title of the work.2. Name and address of the owner of copyright.3. Year and country of first publication and name, address and nationality of the publisher.4. Name and address of the author who has translated the work.5. Name and address of the publisher and year in which the translation has been published in India.6. Name and address of the publisher and year in which the reproduction of the work has been published in India.7. Retail price of the published work.
[See rules 12 and 13]
APPLICATION FORM FOR PERMISSION TO CARRY ON COPYRIGHT BUSINESS AND FOR REGISTRATION AS A COPYRIGHT SOCIETY
1. Names and addresses of the persons Forming the association of persons (in capital letters) (hereinafter referred to as “applicant”)2. The profession or occupation of such persons3. Details of works in which copyright or other rights of such individuals subsist4. The class or category of works or the rights in respect of which the applicant proposes to carry on the copyright business.5. The territory or territories to which the business shall extend6. The name in which the applicant desires registration as copyright society7. The names and addresses of individuals comprising the governing body (by whatever name called) of the applicant in whom the ultimate management, control and direction of the applicant is vested8. Address of the registered or administrative office of the applicant at which its records will be maintained and kept and the designation of the chief executive officer of the applicant with address on whom communications may be served.9. Financial position of the applicant on the date of making the application i.e., last audited balance sheet and income and expenditure account/bank balance.10. Signature along with the name of the members of the governing body.11. Name and signature of the chief executive.Place……………………..Date………………………..*In the case of a per Forming rights society functioning as such immediately before the commencement of the Copyright (Amendment) Act, 1994, the application shall be accompanied by any documentary proof in support of its claim of functioning as a per Forming right society.
[See rule 14-B]
CERTIFICATE OF REGISTRATION UNDER SECTION 33(3) OF THE COPYRIGHT ACT, 1957
It is certified that…………..(name of the society and address) has been registered by the Central Government, vide Registration No………….as a copyright society under subsection (3) of section 33 of the Copyright Act, 1957 (14 of 1957) and permitted to commence and carry on the copyright business in……………………..(here indicate the name of the particular class of works).The registration and the permission hereby granted are subject to the following conditions and liable to be cancelled on non-compliance with, or contravention of, any of them, namely :—
(i) that the particulars furnished in the application are true and correct and not misleading in any manner; and
(ii) that the copyright society shall duly comply with all the obligations imposed on it by or under the Copyright Act, 1957 (14 of 1957) and the Copyright Rules, 1958.
Registrar of Copyrights
FORM OF REGISTER OF COPYRIGHTS
[See rule 15]
1. Registration number.2. Name, address and nationality of the applicant.3. Nature of the applicant’s interest in the copyright of the work.4. Class and description of the work.5. Title of the work.6. Language of the work.7. Name, address and nationality of the author and, if the author is deceased, the date of his decease.8. Whether work is published or unpublished.9. Year and country of first publication and name, address and nationality of the publisher.10. Years and countries of subsequent publications, if any, and names, addresses and nationalities of the publishers.11. Names, addresses and nationalities of the owners of the various rights comprising the copyright in the work and the extent of rights held by each, together with particulars of assignments and licences, if any.12. Names, addresses and nationalities of other persons, if any, authorised to assign or license the rights comprising the copyright.13. If the work is an artistic work the location of the original work, including name, address and nationality of the person in possession of it (in the case of an architectural work, the year of completion of the work should also be shown.)14. Remarks, if any.
APPLICATION FOR REGISTRATION OF COPYRIGHT
[See rule 16]
ToThe Registrar of Copyrights,Copyright OfficeNew Delhi.Sir,In accordance with section 45 of the Copyright Act, 1957 (14 of 1957), I hereby apply for registration of copyright and request that entries may be made in the Register of Copyrights as in the enclosed statement of particulars sent herewith in triplicate.1. I also send herewith duly completed the statement of further particulars relating to the work.2. In accordance with rule 16 of the Copyright Rules, 1958, I have sent by pre-paid registered post copies of this letter and of the enclosed statement(s) to the other parties concerned, as shown below :
|Name and address of the parties||Date of despatch|
3. The prescribed fee has been paid, as per details below :4. Communications on this subject may be addressed to :5. I hereby declare that to the best of my knowledge and belief, no person, other than to whom a notice has been sent as per paragraph 2 above has any claim or interest or dispute to my copyright of this work or to its use by me.]6. I hereby verify that the particulars given in this Form and the Statement of Particulars and Statement of further Particulars are true to the best of my knowledge, belief and in Formation and nothing has been concealed therefrom.]5. List of enclosures.Place…………………………….Date……………………………..
Statement of Particulars
(To be sent in triplicate)
1. Registration number (To be filled in the Copyright Office)2. Name, address and nationality of the applicant3. Nature of the applicant’s interest in the copyright of the work4. Class and description of the work5. Title of the work6. Language of the work7. Name, address and nationality of the author and, if the author is deceased, the date of his decease8. Whether work is published or unpublished9. Year and country of first publication and name, address and nationality of the publishers.10. Years and countries of subsequent publications, if any, and names, addresses and nationalities of the publisher.11. Names, address and nationalities of the owners of the various rights comprising the copyright in the work and the extent of rights held by each, together with particulars of assignment and licences, if any.12. Names, addresses and nationalities of their persons, if any, authorized to assign or license the rights comprising the copyright.13. If the work is an “artistic work”, the location of the original work, including name, address and nationality of the person in possession of the work. (In the case of an architectural work, the year of completion of the work should also be shown).[13-A. If the work is an ‘artistic work’ which is used or is capable of being used in relation to any goods, the application shall include a certificate from the Registrar of Trade Marks in terms of the proviso to sub-section (1) of section 45 of the Copyright Act, 1957.]14. Remarks, if any.Place……………………………Date……………………………..
Statement of Further Particulars
(For Literary, Dramatic, Musical and Artistic Works only)
(To be sent in triplicate)
1. Is the work to be registered—
(a) an original work ?
(b) a translation of a work in the public domain ?
(c) a translation of a work in which copyright subsists ?
(d) an adaptation of a work in the public domain ?
(e) an adaptation of a work in which copyright subsists ?
2. If the work is a translation or adaptation of a work in which copyright subsists :
(a) Title of the original work.
(b) Language of the original work.
(c) Name, address and nationality of the author of the original work and, if the author is deceased, the date of his decease.
(d) Name, address and nationality of the publisher, if any, of the original work.
(e) Particulars of the authorization for a translation or adaptation including the name, address and nationality of the party authorising.
3. Remarks, if any.Place……………………………………Date……………………………………..
APPLICATION FOR REGISTRATION OF CHANGES IN THE PARTICULARS OF COPYRIGHT ENTERED IN THE REGISTER OF COPYRIGHTS
[See rule 16]
ToThe Registrar of Copyrights,Copyright Office,New Delhi.Sir,In accordance with rule 16 of the Copyright Rules, 1958, I hereby apply for registration of changes in the particulars of copyright entered in the Register of Copyrights and request that changes in the existing entries may be made as specified in the enclosed statement of particulars.2. I have sent by registered post copies of this letter and of the statement of particulars to the other parties concerned as shown below :
|Name and address of the parties||Date of despatch|
3. The prescribed fee has been paid, as per details below :4. Commissioner on subject may be addressed to :5. I hereby declare that, to the best of my knowledge and belief, no person other than to whom a notice has been sent as per paragraph 2, has any claim, interest or dispute to my copyright of this work, or to its use by me.]6. I hereby verify that the particulars given in this Form and the Statement of particulars are true to the best of my knowledge, belief and in Formation and nothing has been concealed therefrom.]Place………………………………….
Statement of Particulars
1. Registration number in the Register of Copyrights.2. Changes sought in the particulars of copyright as entered in the Register of Copyrights.
|Reference to column number of the Register of Copyrights||Existing entry in the Register of Copyrights||Proposed entry in place of the existing entry in the Register of Copyrights||Reasons for the changes proposed|
Note. — Where the changes proposed are consequent on assignment or licences of copyright, attested copies of the deeds of assignments or licences should be enclosed.3. List of enclosures.Place………………………………………Date: …………………………………….
APPLICATION UNDER SECTION 23 OF THE ACT
[See rule 22]
ToThe Registrar of Copyrights,Copyright Office,New Delhi.Sir,In accordance with section 53 of the Copyright Act, 1957 (14 of 1957), I hereby state that—I am the owner of the copyright/I am the duly authorised agent of………….(Full name) who is the owner of copyright in the I am the duly authorised agent of (full name) work specified in the enclosed affidavit and I hereby apply for an order that the copies of the said work as specified in the said affidavit shall not be imported into India.2. I am also enclosing a copy of the work the copyright in which is being infringed.3. I produce herewith the following additional evidence in proof of infringement of copyright by the works in respect of which the order is sought—
4. The prescribed fee has been paid as per details below :—
5. Communications on this subject may be addressed to—Place……………………………………Date……………………………………..
FORM OF AFFIDAVIT
I,…………………., of (full name in block letters) …… do hereby (full address) on solemn affirmation state that—
(1) the particulars in the statement below are true to the best of my knowledge and belief;(2) the works which are being imported in accordance with the particulars in the said statement are infringing copies of the work described in the said statement; and(3) I am interested in the prevention of importation of the said infringing copies for the following reasons :
(4) the infringing copies are not being imported for the private and domestic use of the importer.
- Particulars of the Work and Rights held :
1. Full name, address and nationality of the applicant.2. Telegraphic address of the applicant.3. If the applicant is not the owner of the copyright, full name, address and nationality of the owner of the copyright.4. Description of the work :
(a) Class of the work (Literary, Dramatic, Musical, Artistic, Cinematograph Film, Record).
(b) Title of the work.
(c) Full name, address and nationality of the author and, if the author is deceased, the date of his decease.
(d) Language of the work.
(e) Name and address of the publisher.
(f) Year of first publication.
(g) Country of first publication.
(h) If the copyright in the work is registered under section 45, the registration number.
- Details of import of infringing copies.
1. Country of origin of the infringing copies.2. Name, address and nationality of the importer in India.3. Name, address and nationality of the maker of the infringing copies.4. Expected time and place of import of the infringing copies into India.5. In case a consignment of the infringing copies is detected and detained, will the applicant be prepared to go himself or depute an authorised agent to identify the said copies to the satisfaction of the Registrar of Copyrights ?
- Any other relevant in Formation not covered above.
Solemnly affirmed before me by…………… (full name of deponent in block letters) who is known to me personally/who is identified to me by…………………………………….(name of identifier inblock letters) who is known to me personally.Place………………………………………Date……………………………………….
(Signature and seal of the Magistrate)
[See rule 26]
|1.||For a licence to republish a literary, dramatic, musical or artistic work (sections 31, 31-A and 32-A)||Rs. 400 per work|
|2.||For a licence to republish a cinematograph film (section 31)||Rs. 600 per work|
|3.||For a licence to republish a sound recording (section 31)||Rs. 400 per work|
|4.||For a licence to per Form an Indian work in public or to communicate the work to the public by broadcast (section 31)||Rs. 200 per work|
|5.||For an application for a licence to produce and publish a translation of a literary or dramatic work in any language (sections 32 and 32-A)||Rs. 200 per work|
|6.||For an application for registration of copyright in a —|
|(a) literary, dramatic, musical or artistic work||Rs. 50 per work|
|(b) provided that in respect of a literary or artistic work which is used or is capable of being used in relation to any goods (section 45)||Rs. 400 per work|
|7.||For an application for change in particulars of copyright entered in the Register of Copyrights in respect of a —|
|(a) Literary, Dramatic, Musical or Artistic Work||Rs. 50 per work|
|(b) provided that in respect of a literary, or artistic work which is used or is capable of being used in relation to any goods (section 45)||Rs. 200 per work|
|8.||For an application for registration of copyright in a cinematograph film (section 45)||Rs. 600 per work|
|9.||For an application for registration of changes in particulars of copyright entered in the Register of cinematograph film (section 45)||Rs. 400 per work|
|10.||For an application for registration of copyright in a sound recording (section 45)||Rs. 400 per work|
|11.||For an application for registration of changes in particulars of copyright entered in the Register of Copyrights in respect of a sound recording (section 45)||Rs. 200 per work|
|12.||For taking extracts from the Register of Copyrights (section 47)||Rs. 20 per work|
|13.||For taking extracts from the Indexes (section 47)||Rs. 20 per work|
|14.||For a certified copy of an extract from the Register of Copyrights or the Indexes (section 47)||Rs. 20 per work|
|15.||For a certified copy of any other public document in the custody of the Registrar of Copyrights or the Copyright Board||Rs. 20 per work|
|16.||For an application for prevention of importation of infringing copies (section 53)||Rs. 400 per work, per place of entry|
Published vide S.O. 228(E), dated 24.3.1999, published in the Gazette of India, Ext., Pt. II, Section 3(i) dated 6.4.1999.
In exercise of the powers conferred by section 40 of the Copyright Act, 1957 (14 of 1957), and in supersession of the International Copyright Order, 1991, the Central Government hereby makes the following Order, namely:—
1. (1) This Order may be called The International Copyright Order, 1999.(2) It shall come into force on the date of its publication in the Official Gazette.
2. In this Order, unless the context otherwise requires,—
(a) “Berne Convention Country” means a country which is a member of the Berne Copyright Union, and includes a country mentioned either in Part I or in Part II of the Schedule;
(b) “Phonogram” means an exclusively aural fixation of a performance or other sounds;
(c) “Phonograms Convention Country” means a country which has either ratified, or accepted, or acceded to the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, done at Geneva on the twenty-ninth day of October, one thousand nine hundred and seventy-one, and includes a country mentioned in Part V of the Schedule;
(d) “Schedule” means the Schedule appended to this Order;
(e) “Universal Copyright Convention Country” means a country which has either ratified or accepted, or acceded to the Universal Copyright Convention, and includes a country mentioned either in Part III or in Part IV of the Schedule;
(f) “World Trade Organisation Country” means a country which is a member of the World Trade Organisation and which has either ratified, or accepted, or acceded to the Agreement on Trade Related Aspects of Intellectual Property Right, 1994, and includes a country mentioned in Part VI of the Schedule.
3. Subject to the provisions of paragraphs 4, 5 and 6, all the provisions of the Copyright Act, 1957 (14 of 1957) (hereafter referred to as the Act), except those in Chapter VIII, and those other provisions which apply exclusively to Indian works, shall apply:—
(a) to any work first made or published in a country mentioned in Part I, II, III, IV or VI of the Schedule, in like manner as if it was first published in India;
(b) to any work first made or published in a country other than a country mentioned in Part I, II, III, IV or VI of the Schedule, the author of which was, at the date of such publication, or, where the author was dead on that date, he was at the time of his death, a national of a country mentioned in Part I, II, III, IV or VI of the Schedule, in like manner, as if the author was a citizen of India at that point of time;
(c) to an unpublished work, the author whereof was, at the time of the making or publication of the work, a national or domiciled in any country mentioned in Part I, II, III, IV or VI of the Schedule, in like manner, as if the author was a citizen of, or domiciled in India;
(d) to any work first made or published by a body corporate incorporated under any law of a country mentioned in Part I, II, III, IV or Part VI of the Schedule, in like manner, as if it was incorporated under a law in force in India; and
(e) to a sound recording first made, the producer of which was, at the date of such production, a national of a country mentioned in Part V or Part VI of the Schedule or a body corporate incorporated under a law in force in such a country, in like manner as if the producer was the citizen of India or a body corporate incorporated under a law in force in India, as the case may be, at that point of time.
4. Notwithstanding anything contained in paragraph 3, the provisions of Chapter VIII of the Act shall apply to a Broadcasting Organisation and a Performer in a World Trade Organisation Country mentioned in Part VI of the Schedule.
5. Notwithstanding anything contained in clause (a) of paragraph 3 and paragraph 4 the provisions of sub-section (1) of section 32 of the Act—
(i) shall not apply to a work first made or published in any Berne Convention Country mentioned in Part I or Part II of the Schedule;
(ii) shall not apply to a work first made or published in any World Trade Organisation Country mentioned in Part VI of the Schedule;
(iii) shall apply to a work first made or published in any Universal Copyright Convention Country mentioned in Part III or Part IV of the Schedule, only in respect of the translation of such work into any language specified in the Eighth Schedule to the Constitution of India.
6. The provisions of sections 32 [excluding its sub-section (1), 32-A and 32-B shall apply to a work first made or published in a Berne Convention Country mentioned in Part I of the Schedule or in a Universal Copyright Convention Country mentioned in Part III of the Schedule or in a World Trade Organisation Country mentioned in Part VI of the Schedule.
7. The term of copyright in a work shall not exceed that which is enjoyed by it in its country of origin.
Explanation .—In this paragraph, “the country of origin” shall mean—
(a) in the case of a work first made or published in a Berne Convention Country or a Universal Copyright Convention Country or a World Trade Organisation Country, that country;
(b) in the case of a work made or published simultaneously either in a Berne Convention Country or a Universal Copyright Convention Country or in a World Trade Organisation Country and in a country which is neither a Berne Convention Country nor a Universal Copyright Convention Country nor a World Trade Organisation Country, the former country;
(c) in the case of a work which is made or published simultaneously in several Berne Convention Countries, the country whose laws grant the shortest term of copyright to such a work;
(d) in the case of a work which is made or published simultaneously in several Universal Copyright Convention Countries, the country whose laws grant the shortest term of copyright to such a work;
(e) in the case of a work which is made or published simultaneously in several World Trade Organisation Countries, the country whose laws grant the shortest term of copyright to such a work;
(f) in the case of an unpublished work or a work first made or published in a country other than a Berne Convention Country or a Universal Copyright Convention Country or a World Trade Organisation Country, the country of which the author was a citizen, or the country in which he was domiciled at the time of its first publication, whichever grants the longer term of copyright.
PART – I
Berne Convention Countries Which Have Ratified/accepted/ Acceded To The 1971 Text Of The Convention
[See Paragraph 2(a)]
|1. Albania||71. Kyrgyzstan|
|2. Algeria||72. Latavia|
|3. Antigua and Barbuda||73. Lesotho|
|4. Argentina||74. Liberia|
|5. Armenia||75. Libiyan Arab Jamahiriya|
|6. Australia||76. Liechtenstein|
|7. Austria||77. Lithuania|
|8. Azerbaijan||78. Luxumberg|
|9. Bahamas||79. Malawi|
|10. Bahrain||80. Malaysia|
|11. Bangladesh||81. Mali|
|12. Barbados||82. Malta|
|13. Belarus||83. Mauritania|
|14. Belgium||84. Mauritius|
|15. Belize||85. Mexico|
|16. Benin||86. Monaco|
|17. Bolivia||87. Mongolia|
|18. Bosnia & Herzegovina||88. Morocco|
|19. Botswana||89. Namibia|
|20. Brazil||90. Netherlands|
|21. Bulgaria||91. Niger|
|22. Burkina Faso||92. Nigeria|
|23. Cameroon||93. Norway|
|24. Canada||94. Oman|
|25. Cape Verde||95. Panama|
|26. Central African Republic||96. Paraguay|
|27. Chile||97. Peru|
|28. China||98. Philippines|
|29. Colombia||99. Poland|
|30. Congo||100. Portugal|
|31. Costa Rica||101. Qatar|
|32. Cote d’lvoire||102. Republic of Korea|
|33. Croatia||103. Republic of Moldova|
|34. Cuba||104. Panama|
|35. Cyprus||105. Russian Federation|
|36. Czech Republic||106. Rwanda|
|37. Democratic Republic of the Congo||107. Saint Kitts & Nevis|
|38. Denmark||108. Saint Lucia|
|39. Domonica||109. Saint Vincent and the Grenadines|
|40. Dominican Republic||110. Senegal|
|41. Ecuador||111. Singapore|
|42. Egypt||112. Slovakia|
|43. El Salvador||113. Slovenia|
|44. Equatorial Guinea||114. South Africa|
|45. Estonia||115. Spain|
|46. Finland||116. Sri Lanka|
|47. France||117. Surinam|
|48. Gabon||118. Swaziland|
|49. Gambia||119. Sweden|
|50. Georgia||120. Switzerland|
|51. Germany||121. Tajikstan|
|52. Ghana||122. Thailand|
|53. Greece||123. The Former Yugoslavia Republic of Macedonia|
|54. Grenada||124. Togo|
|55. Guatemala||125. Trinidad and Tobago|
|56. Guinea||126. Tunisia|
|57. Guinea-Bissau||127. Turkey|
|58. Guyana||128. Ukraine|
|59. Haiti||129. United Kingdom|
|60. Holy See||130. United Republic of Tanzania|
|61. Honduras||131. United States of America|
|62. Hungary||132. Uruguay|
|63. Iceland||133. Venezuela|
|64. Indonesia||135. Zambia|
|65. Italy||136. Zimbabwe|
Berne Convention Countries Which Are Yet To Ratify/ Accept/ Accede To The 1971 Text Of Convention
[See Paragraph 2(a)]
1. Chad 2. Fiji 3. Ireland 4. Israel 5. Lebanon 6. Madagascar 7. New Zealand 8. Pakistan
Universal Copyright Convention Countries Which Have Ratified/ Accepted/acceded To The 1971 Text Of The Convention
[See Paragraph 2(e)]
|1. Algeria||30. Kenya|
|2. Australia||31. Mexico|
|3. Austria||32. Monaco|
|4. Bahamas||33. Morocco|
|5. Bangladesh||34. Netherlands|
|6. Barbados||35. Niger|
|7. Bolivia||36. Norway|
|8. Bosnia & Herzegovina||37. Panama|
|9. Brazil||38. Peru|
|10. Bulgaria||39. Poland|
|11. Cameroon||40. Portugal|
|12. China||41. Republic of Korea|
|13. Colombia||42. Russian Federation|
|14. Costa Rica||43. Rwanda|
|15. Croata||44. Saint Vincent and the Grenadines|
|16. Cyprus||45. saudi Arabia|
|17. Czech Republic||46. Senegal|
|18. Denmark||47. Slovakia|
|19. Dominican Republic||48. Slovenia|
|20. Ecudor||49. Spain|
|21. El Salvador||50. Sri Lanka|
|22. Finland||51. Sweden|
|23. France||52. Switzerland|
|24. Germany||53. Trinidad and Tobago|
|25. Guinea||54. Tunisia|
|26. Holy See||55. United Kingdom|
|27. Hungary||56. United States of America|
|28. Italy||57. Uruguay|
|29. Japan||58. Yugoslavia|
Universal Copyright Convention Countries Which Are Yet To Ratify/ Accept/accede To The 1971 Text Of The Convention
[See Paragraph 2(e)]
|1. Andorra||19. Lao People’s Democratic Republic|
|2. Argentina||20. Lebanon|
|3. Belarus||21. Liberia|
|4. Belgium||22. Liechtenstein|
|5. Belize||23. Luxembourg|
|6. Cambodia||24. Malawi|
|7. Canada||25. Malta|
|8. Chile||26. Mauritius|
|9. Cuba||27. New Zealand|
|10. Fiji||28. Nicaragua|
|11. Ghana||29. Nigeria|
|12. Greece||30. Pakistan|
|13. Guatemala||31. Paraguay|
|14. Haiti||32. Phillippines|
|15. Iceland||33. Tajikistan|
|16. Ireland||34. Ukraine|
|17. Israel||35. Venezuela|
|18. Kazakhistan||36. Zambia|
Phonograms Convention Countries
[See Paragraph 2(c)]
|1. Argentina||30. Israel|
|2. Australia||31. Italy|
|3. Austria||32. Jamaica|
|4. Barbados||33. Japan|
|5. Brazil||34. Kenya|
|6. Bulgaria||35. Latvia|
|7. Burkina Faso||36. Liechenstein|
|8. Chile||37. Lithuania|
|9. China||38. Luxembourg|
|10. Colombia||39. Mexico|
|11. Costa Rica||40. Monaco|
|12. Cyprus||41. Netherlands|
|13. Croatia||42. New Zealand|
|14. Czech Republic||43. Norway|
|15. Democratic Republic of the Congo||44. Panama|
|16. Denmark||45. Paraguay|
|17. Ecuador||46. Peru|
|18. Egypt||47. Republic of Korea|
|19. El Salvador||48. Republic of Maoldova|
|20. Estonia||49. Romania|
|21. Fiji||50. Russian Federation|
|22. Finland||51. Slovakia|
|23. France||52. Slovenia|
|24. Germany||53. Spain|
|25. Greece||54. Sweden|
|26. Guatemala||55. Switzerland|
|27. Holy See||56. The Former Yugoslav Republic of Macedonia|
|28. Honduras||57. Trinidad and Tobago|
|29. Hungary||58. Ukraine|
|59. United Kingdom|
|60. United States of America|
The World Trade Organisation Countries
[See Paragraph 2(1)]
|1. Albania||71. Kyrygyz Republic|
|2. Angola||72. Latavia|
|3. Antigua and Barbuda||73. Lesotho|
|4. Argentina||74. Liechtenstein|
|5. Australia||75. Luxembourg|
|6. Austria||76. Macau, China|
|7. Bahrain||77. Madagascar|
|8. Bangladesh||78. Malawi|
|9. Barbados||79. Malaysia|
|10. Belgium||80. Maldives|
|11. Belize||81. Mali|
|12. Benin||82. Malta|
|13. Bolivia||83. Mauritania|
|14. Botswana||84. Mauritius|
|15: Brazil||85. Mexico|
|16. Brunei Oarussalam||86. Mongolia|
|17. Bulgaria||87. Morocco|
|18. Burkina Paso||88. Mozambique|
|19. Burundi||89. Myanmar|
|20. Cameroon||90. Namibia|
|21. Canada||91. Netherlands- for the Kingdom in Europe and for theNetherlands Antilles|
|22. Central African Republic||92. New Zealand|
|23. Chad||93. Nicaragua|
|24. Chile||94. Niger|
|25. Colombia||95. Nigeria|
|26. Congo||96. Norway|
|27. Costa Rica||97. Pakistan|
|28. Cote d’lvoire||98. Panama|
|29. Cuba||99. Papua New Guinea|
|30. Cyprus||100 Paraguay|
|31. Czech Republic||101. Peru|
|32. Democratic Republic of the Congo||102. Philippines|
|33. Denmark||103. Poland|
|34. Djibouti||104. Portugal|
|35. Dominica||105. Qatar|
|36. Dominican Republic||106. Romania|
|37. Ecuador||107. Rwanda|
|38. Egypt||108. Saint Kitts & Nevis|
|39. El Salvador||109. Saint Lucia|
|40. Estonia||110. Saint Vincent and the Grenadines|
|41. European Community||111. Senegal|
|42. Fiji||112. Sierra Leone|
|43. Finland||113. Singapore|
|44. France||114. Slovak Republic|
|45. Gabon||115. Slovenia|
|46. Gambia||116. Solomon Islands|
|47. Georgia||117. South Africa|
|48. Germany||118. Spain|
|49. Ghana||119. Sri Lanka|
|50. Greece||120. Suriname|
|51. Grenada||121. Swaziland|
|52. Guatemala||122. Sweden|
|53. Guinea||123. Switzerland|
|54. Guinea-Bissau||124. Tanzania|
|55. Guyana||125. Thailand|
|56. Haiti||126. Togo|
|57. Honduras||127. Trinidad and Tobago|
|58. Hong Kong, China||128. Tunisia|
|59. Hungary||129. Turkey|
|60. Iceland||130. Uganda|
|61. Indonesia||131. United Arab Emirates|
|62. Ireland||132. United Kingdom|
|63. Israel||133. United States of America|
|64. Italy||134. Uruguay|
|65. Jamaica||135. Venezuela|
|66. Japan||136. Zambia|
|67. Jordan||137. Zimbabwe|
|69. Korea, Republic of|