Copyright subsistence, assignment and the remedies for copying

Section 13(1) names the classes: original literary, dramatic, musical and artistic works, cinematograph films and sound recordings. Section 13(2) adds a territorial condition. A published work qualifies if it was first published in India, or if first published abroad and the author was an Indian citizen at publication (or at death, where the author had died by then). An unpublished work qualifies if the author was an Indian citizen or domiciled in India when the work was made, and a work of architecture qualifies if it is located in India. The condition does not apply to a work to which section 40 or section 41 applies: section 40 lets the Central Government extend the Act by Gazette order to works first published in a foreign country or made by its citizens, and section 41 gives copyright to works of certain international organisations. Section 13(3) withholds copyright from a film if a substantial part of it infringes another work, and from a sound recording if making it infringed the underlying literary, dramatic or musical work. Section 13(4) keeps the separate copyright in the underlying work alive.

Section 14 then says what the owner controls. For a literary, dramatic or musical work that is not a computer programme, the owner has the exclusive right to reproduce it in any material form including electronic storage, to issue copies to the public, to perform or communicate it to the public, to make a film or sound recording of it, and to translate or adapt it. For a computer programme the same acts apply, together with sale or commercial rental of copies. For an artistic work, reproduction includes depicting a two-dimensional work in three dimensions and the reverse. For a film, the owner controls copies, sale or commercial rental and communication to the public. For a sound recording, the owner controls other recordings embodying it, sale or rental, and communication to the public. Section 16 closes the list: no one has copyright or a similar right except under the Act or another law in force, although a claim to restrain a breach of trust or confidence is saved.

Section 22 gives a literary, dramatic, musical or artistic work published within the lifetime of the author sixty years from the beginning of the calendar year after the author's death, and for joint authors the reckoning runs from the author who dies last. Section 23 gives an anonymous or pseudonymous work sixty years from the beginning of the calendar year after first publication, or from the year after the author's death if the author's identity is disclosed before that period ends. Section 24 gives a literary, dramatic or musical work or an engraving that was unpublished at the author's death sixty years from the beginning of the calendar year after it is first published. Sections 26 and 27 give a film and a sound recording sixty years from the beginning of the calendar year after publication. Under section 21 the author can relinquish any right by a notice in the prescribed form to the Registrar of Copyrights or by public notice, and the Registrar must publish it in the Official Gazette and, within fourteen days of that, post it on the Copyright Office website for not less than three years. Relinquishment does not disturb rights that other persons already hold on the date of the notice.

Disputes at this stage turn on how much of the work is original and on whether the defendant took the expression or only the idea. Eastern Book Company v. D.B. Modak answers the first for editorial work on public-domain text, and R.G. Anand v. Delux Films answers the second for a film made on a theme already used in a play.

Section 17 starts from the author as first owner and then lists the exceptions, most of them subject to an agreement to the contrary (the speech clause and the clause for international organisations have no such words). A literary, dramatic or artistic work made by an employee of a newspaper, magazine or similar periodical under a contract of service or apprenticeship belongs to the proprietor for publication, and to the author in all other respects. A photograph taken, a painting or portrait drawn, an engraving or a cinematograph film made for valuable consideration at the instance of a person belongs to that person. Any other work made in the course of employment under a contract of service or apprenticeship belongs to the employer. The section also deals with a speech delivered in public (the speaker, or the person on whose behalf it is delivered), a Government work (the Government) and a work made or first published under the direction or control of a public undertaking (the undertaking). In Yennes Infotech (P) Ltd. v. The Managing Director, eNoah iSolution Pvt. Ltd. (O.S.A. No. 31 of 2020, Madras High Court, decided 13 August 2021) the Bench held that clause (c) covers only a contract of service and not a contract for service, so a software vendor that wrote a customised programme for a client was not within the employer exception, and the trial court was wrong to say that a person engaged for services could not own the copyright in what it wrote. The court nevertheless upheld the rejection of the plaint on a different ground, that the client held a licence through the vendor's agent, and left the money claim open.

The 2012 proviso at the end of section 17 changes the position for film. Where a work is incorporated in a cinematograph work, nothing in clauses (b) and (c) affects the right of the author of the original literary, dramatic, musical or artistic work under section 13(1)(a). A producer who commissioned or employed the composer or writer therefore does not take the author's separate copyright in the underlying work by virtue of those two clauses alone. The 1977 decision in Indian Performing Right Society v. Eastern India Motion Pictures Association was decided without that proviso.

Section 57 lets the author claim authorship and restrain or claim damages for distortion, mutilation or modification that would prejudice honour or reputation, even after assigning the copyright, and the legal representatives can exercise the right. For works of art, section 53A gives the author, if the first owner under section 17, or the legal heirs a share in a resale of the original painting, sculpture, drawing or manuscript where the price exceeds ten thousand rupees. The Commercial Court fixes the share, and it cannot exceed ten percent of the resale price. The right ends with the term of copyright.

Section 44 keeps a Register of Copyrights at the Copyright Office, and section 45 says the author, publisher, owner or other interested person may apply in the prescribed form with the prescribed fee. Where an artistic work is used or capable of being used in relation to goods or services, the application must carry a statement to that effect and a certificate from the Registrar of Trade Marks that no identical or deceptively similar trade mark is registered or applied for by anyone else. Section 48 makes the Register prima facie evidence of the particulars entered, and certified extracts are admissible without further proof. The High Court corrects the Register on application under section 50, and an appeal from a final order of the Registrar lies to the High Court within three months under section 72, with a further appeal to a Bench within three months, and the time taken to get a certified copy excluded. Forms, fees and timelines are prescribed and are not stated in the Act.

An assignment is valid only if it is in writing signed by the assignor or the assignor's duly authorised agent (section 19(1)). In C. Prakash v. S.N. Media (OSA (CAD) No. 68 of 2021, Madras High Court, decided 29 October 2021, on an appeal against an order vacating an interim injunction) the Bench held that non-payment does not undo a written assignment: the Act does not make payment a condition of assignment, the unpaid assignor has a money claim, and the rights come back only by a further written re-assignment. Section 19(2) and (3) require it to identify the work, specify the rights assigned and their duration and territorial extent, and specify the royalty and any other consideration payable to the author or the author's legal heirs. If the period is not stated, section 19(5) deems it five years from the date of assignment, and if the territory is not stated, section 19(6) presumes India. Under section 19(4), rights that the assignee does not exercise within one year lapse unless the assignment says otherwise. These requirements do not apply to assignments made before the Copyright (Amendment) Act, 1994 came into force.

Section 18 adds limits that a drafter has to build around. An assignment of a future work takes effect only when the work comes into existence. An assignment does not reach a medium or mode of exploitation that did not exist or was not in commercial use when the assignment was made, unless the assignment refers to it specifically. The author of a literary or musical work in a film cannot assign or waive the right to an equal share of royalties for any use other than communication of the work with the film in a cinema hall, except to legal heirs or to a copyright society, and the author of such a work in a sound recording outside a film has the same protection for every use. An agreement to the contrary is void. Section 19(8) makes void an assignment that contradicts the rights already assigned to a copyright society of which the author is a member.

If the assignee sits on the rights, section 19A(1) lets the assignor complain to the Commercial Court, which may revoke an assignment where the assignee fails to make sufficient exercise of the rights and the failure is not the assignor's. In a dispute under section 19A(2) the Court will not revoke an assignment unless the terms are harsh to an assignor who is also the author, and it cannot revoke within five years of the assignment. Under section 19A(3) the Court is to try to pass a final order within six months of the complaint and must record reasons for any delay.

A licence under section 30 has to be in writing by the owner or the owner's authorised agent. Section 30A applies sections 19 and 19A, with the necessary adaptations, to a licence under section 30, so the five-year and India defaults of section 19 and revocation under section 19A apply to a licence too. Where the owner refuses, there are three statutory routes. Section 31 lets a complainant ask the Commercial Court to direct the Registrar of Copyrights to grant a licence where the owner refuses to republish, to allow public performance, or to allow broadcast, and the refusal is unreasonable. Section 31A lets any person apply to the Commercial Court for a licence for a work that is withheld from the public in India where the author is dead, unknown or cannot be traced, after publishing the proposal in an English daily newspaper. Section 31D gives a broadcasting organisation a statutory licence for published literary, musical and sound recording content on prior notice and payment of royalties at the rate the Commercial Court fixes, with separate rates for radio and television. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd. was decided when the Copyright Board heard these matters.

Section 33(1) forbids anyone to carry on the business of issuing or granting licences in respect of copyright works except under a registration granted under that section. An owner can still license his own works individually, consistently with his duties as a member of a registered society. The second proviso added in 2012 goes further: the business of licensing literary, dramatic, musical and artistic works incorporated in a cinematograph film or sound recording must be carried out only through a registered copyright society.

The Central Government registers the society, and ordinarily not more than one for the same class of works. The registration lasts five years and is renewable, and renewal depends on the society's collective control continuing to be shared with the authors as owners or as holders of the right to royalty. The Central Government can suspend registration for up to one year and appoint an administrator, or cancel it, if the society is managed to the detriment of authors and other owners of rights.

Section 33A obliges every society to publish its tariff scheme. A person aggrieved by the tariff may appeal to the Commercial Court, which can order removal of any unreasonable element, anomaly or inconsistency and can fix an interim tariff. The appellant must keep paying the fee that falls due, and no order can stay collection of it while the appeal is pending. For a venue, broadcaster or producer using film or recorded music, this is the route to contest a tariff, and the licence has to be taken from the society, not from the individual author.

Section 52(1)(a) permits a fair dealing with a work other than a computer programme for three stated purposes: private or personal use including research, criticism or review of that work or any other work, and reporting current events and current affairs including a lecture delivered in public. Storing the work in an electronic medium for those purposes is not infringement. The clause does not name quotation or education as purposes of fair dealing. Education appears elsewhere in section 52(1): reproduction by a teacher or pupil in the course of instruction, or in an examination question or answer (clause (i)), and performance by the staff and students of an educational institution, or before a limited audience of staff, students, parents and guardians (clause (j)). A content business that quotes a passage in an article has to fit it under review, criticism or current events reporting, or under one of the narrower clauses. In Syndicate of the Press of the University of Cambridge v. B.D. Bhandari (RFA (OS) No. 21 of 2009, Delhi High Court, decided 3 August 2011) the Division Bench upheld the dismissal of a suit against student guide books that reproduced the exercises of a prescribed grammar textbook. It found the guides different in character and pattern of use from the textbook and not a substitute for it, and described that as 'fair use', borrowing the transformative-use test of the American Amazon.com decision. The Act's own term is fair dealing, and the court held that the teacher, pupil and examination exception (now section 52(1)(i)) gave a commercial publisher no cover. The judgment predates the 2012 rewrite of clause (a).

Computer programmes have their own clauses. A lawful possessor may make copies or adaptations to use the programme for the purpose it was supplied for or as back-up copies (clause (aa)), may do what is needed for interoperability with an independently created programme where the information is not otherwise readily available (clause (ab)), may observe, study and test the programme to find the underlying ideas and principles (clause (ac)), and may copy from a personally legally obtained copy for non-commercial personal use (clause (ad)). Engineering Analysis Centre of Excellence Private Limited v. Commissioner of Income Tax records what the Supreme Court said about clauses (aa) and (ad) in a tax appeal.

The 2012 clauses (b) and (c) matter for platforms. Clause (b) exempts transient or incidental storage purely in the technical process of electronic transmission or communication to the public. Clause (c) exempts transient or incidental storage for providing electronic links, access or integration where the right holder has not expressly prohibited it, unless the person responsible knows or has reasonable grounds to believe the stored copy is infringing. On a written complaint from the owner, that person must stop facilitating access for twenty-one days or until a court order arrives, and may resume if no order comes within the twenty-one days.

The later clauses of section 52(1) reach a content business in a few places. The proviso after clause (y) makes an acknowledgment a condition of several exceptions, among them criticism or review in clause (a)(ii), clause (b)(i) and clauses (d), (f), (g), (m) and (p): the act must identify the work by its title or other description and, unless the work is anonymous or the author has asked for no acknowledgment, the author. Clause (d) allows reproduction of a work for a judicial proceeding or a report of one, and clause (m) allows a newspaper, magazine or other periodical to reproduce an article on current economic, political, social or religious topics unless the author has expressly reserved that right. Clause (q) allows reproduction of matter published in an Official Gazette other than an Act of a Legislature, of an Act of a Legislature together with commentary or other original matter, of the report of a committee or commission appointed by the Government and laid on the Table of the Legislature unless the Government prohibits it, and of any judgment or order of a court or tribunal unless it prohibits the reproduction. Clause (u) allows an artistic work permanently situated in a public place, or any other artistic work only by way of background or incidentally, to appear in a film, and clause (zb) allows accessible formats for persons with disability on a non-profit basis. Clause (n) lets a non-commercial public library store a work electronically for preservation if it already holds a non-digital copy, and clause (o) lets such a library make not more than three copies of a book that is not available for sale in India. Section 52(2) applies all of these to a translation or adaptation of a work.

Under section 51(a), copyright is infringed when a person without a licence does anything that the owner alone may do under the Act, or permits for profit a place to be used for communicating the work to the public where that is an infringement, unless he was unaware and had no reasonable ground to believe it. Section 51(b) catches making for sale or hire, selling, letting for hire, trade display, distribution, public exhibition by way of trade and import of infringing copies. The only import carve-out is one copy for the private and domestic use of the importer. The Explanation treats reproduction of a literary, dramatic, musical or artistic work in a film as an infringing copy.

Section 55(1) gives the owner injunction, damages, accounts and the other remedies available for infringement of a right. If the defendant proves that he was not aware, and had no reasonable ground to believe, that copyright subsisted, the owner gets only an injunction and a decree for the whole or part of the profits from sale of the infringing copies. Section 55(2) presumes that a person whose name appears on published copies as author or publisher is the author or publisher, until the contrary is proved. Section 62 sends the suit to the district court having jurisdiction, and that includes the district court where the person instituting the suit actually and voluntarily resides, carries on business or personally works for gain, notwithstanding the Code of Civil Procedure. Indian Performing Rights Society Ltd. v. Sanjay Dalia says how far that extra forum goes.

A platform that hosts third-party content has two statutory points to consider. Section 52(1)(c) covers transient or incidental storage, which hosted uploads are not. Section 79 of the Information Technology Act, 2000 says an intermediary is not liable for third party information made available or hosted by it, if its function is limited to providing access to a communication system over which third party information is transmitted or temporarily stored or hosted, or it does not initiate the transmission, select the receiver or select or modify the information, and in either case it observes due diligence and the guidelines the Central Government prescribes. The protection does not apply if the intermediary conspired, abetted, aided or induced the unlawful act, or if on actual knowledge, or on being notified by the appropriate Government or its agency, it fails to expeditiously remove or disable access. Sections 65A and 65B add offences, each with imprisonment up to two years and a fine, for circumventing an effective technological measure with intent to infringe and for removing or altering rights management information without authority. Section 65A(2) saves, among other things, acts done for a purpose the Act does not expressly prohibit (a person who helps must keep a record of whom he helped), encryption research, lawful investigation, security testing with the owner's authorisation and measures in the interest of national security.

Rule 75 of the Copyright Rules, 2013 turns the twenty-one day window into a procedure. The owner's written complaint must describe the work, show that the complainant owns it or is its exclusive licensee, show that the stored copy is infringing and not within section 52, give the location, and undertake to sue and produce the court's order within twenty-one days. A person who is satisfied by the complaint must act within thirty-six hours and display a notice giving reasons for restraining access. If the complainant produces no court order in time, the platform may restore the storage and need not answer further notices from the same complainant on the same work and location. The Delhi High Court Division Bench held in MySpace Inc. v. Super Cassettes Industries Ltd. (FAO(OS) 540/2011, decided 23 December 2016, on an interim appeal and under the 2011 Intermediary Guidelines Rules) that permanently hosting uploaded content is not the transient or incidental storage that clauses (b) and (c) protect, so that procedure suits caches and links and not a platform that hosts uploads. The court left the defence open at trial if the platform shows it stores temporary information to aid access to the permanent content. On the safe harbour, it read section 51(a)(ii) together with section 79 of the Information Technology Act, 2000 and held that for an internet intermediary the Copyright Act provision means actual knowledge and not general awareness. It replaced the interim injunction over all the owner's works with a notice-based order: the owner supplies the specific works and their locations, and the platform removes them within thirty-six hours of the notice.

Section 63 punishes a person who knowingly infringes or abets infringement of copyright or of any other right conferred by the Act, other than the resale share right of section 53A, with imprisonment of not less than six months and up to three years and a fine of not less than fifty thousand rupees and up to two lakh rupees. Where the infringement was not for gain in the course of trade or business, the court may, for adequate and special reasons stated in the judgment, go below those minimums. Section 63A raises the minimum for a second or later conviction to one year of imprisonment and one lakh rupees, with the same upper limits, and lets the court go below those figures, for adequate and special reasons stated in the judgment, where the infringement was not for gain in the course of trade or business. Section 63B punishes knowing use of an infringing copy of a computer programme on a computer, with imprisonment from seven days to three years and a fine of not less than fifty thousand rupees and up to two lakh rupees. Where the programme was not used for gain or in the course of trade or business, the court may for adequate and special reasons impose no imprisonment and a fine of up to fifty thousand rupees. Section 70 bars any court below a Metropolitan Magistrate or a Judicial Magistrate of the first class from trying these offences. M/s Knit Pro International v. State of NCT of Delhi treats section 63 as cognizable and non-bailable.

Section 64 lets a police officer not below the rank of sub-inspector seize without warrant all copies of the work and the plates used for infringing copies, where he is satisfied that an offence under section 63 has been, is being or is likely to be committed. The copies must be produced before a Magistrate as soon as practicable, and a person interested in them can apply to the Magistrate for their restoration within fifteen days of the seizure. Section 68, which penalised false statements made to deceive or influence an authority or officer, was omitted by the Jan Vishwas (Amendment of Provisions) Act, 2023 with effect from 1 August 2024, so no penalty under it remains.

At the border, the substituted section 53 lets the owner, or an authorised agent, give written notice to the Commissioner of Customs with proof of ownership, asking that infringing copies expected at a stated time and place be treated as prohibited goods for a period not exceeding one year. The Commissioner may act after scrutinising the evidence and may require a security deposit towards demurrage, storage and compensation to the importer if the goods turn out not to be infringing. The importer and the notice giver must be told within forty-eight hours of detention, and the goods are released if the owner produces no order from a court having jurisdiction within fourteen days of detention. Section 53(2) excludes goods in transit. Section 11(2)(n) of the Customs Act, 1962 separately lists the protection of copyrights among the purposes for which importation can be prohibited. The Gramophone Company decision on the meaning of import was decided under the earlier section 53, and its transit holding no longer governs the border notice.