The scope of copyright protection in India

Section 13 of the Copyright Act establishes a closed list of protected works. Original literary, dramatic, musical, and artistic works, as well as sound recordings and cinematographic works, are included. In India, copyright law also covers adjacent rights (such as broadcast reproduction rights and performers’ rights).

The act defines each kind of work independently, providing the relevant exclusive rights under section 14 and various other provisions applicable to neighboring rights such as section 37 (broadcast reproduction right) and section 38A (performers’ rights). Section 16 of the Copyright Act states that no copyright exists unless it is used in conformity with the act’s requirements. In other words, copyright is a legal concept.

Copyright protects what kinds of rights?

The Copyright Act of 1957 establishes the following rights for copyright owners.

• In the case of literary, dramatic, or musical works, the exclusive right to reproduce (including storage in any medium by electronic means, issuing copies, public performance, and the creation of any film or sound recording in relation to that work); to translate and adapt the work, and to communicate the work to the public (which is defined widely enough to cover dissemination over the internet).
• In the case of computer programs, this includes all of the rights described above for literary works, as well as the ability to sell or hire any copy of the computer program for commercial rental.
• In the case of artistic works, it is permissible to copy the work in any manner. This could entail preserving it on any medium, whether electronic or otherwise, or turning a two-dimensional work into a three-dimensional one or vice versa. The exclusive right to convey an artistic work in public, issue copies of it, include it in a cinematograph film, and translate or modify it in any way will be included in copyright in artistic work.
• In the case of cinematograph films, this includes making copies of the film (on any medium, electronic or otherwise), selling or giving on hire, or offering for sale or hire any copy of the film, selling, giving or offering for sale on commercial rental copies of the film, and communicating the film to the public.
• In the case of sound recordings, to make any other sound recording, including storing it on any medium, to sell or give on commercial rental, or to offer for sale such rental, and to convey the sound recording to the public.

Furthermore, the incorporation of a literary, dramatic, or musical work in a sound recording or cinematographic film does not extinguish the separate copyright in such works, which continues to exist in favor of the authors of such works, unless and until the copyright in these works has been specifically assigned to the producers of the sound recordings or cinematographic films by the authors of the works. After the 2012 modification to the Copyright Act, the authors of such works maintain an inalienable right to royalty in respect of commercial exploitation of such works in circumstances where such assignments have been engaged by the writers of such works.

The author has moral rights separate from copyright, such as paternity and integrity, which exist despite copyright assignment. This does not, however, apply to the adaptation of a computer program for the purposes of fair dealing. Violations of moral rights (particularly, the right to integrity) are to be considered objectively, according to the Copyright Act.

Moral rights can be enforced by the author’s legal representatives. The Copyright Act was amended in 2012 to allow a legal representative of an author to exercise both paternity and integrity rights in a work. By notably deleting the copyright term restriction on a claim for the right to integrity by the legal representative, the 2012 amendments purposefully exclude the previous co-extensive period of moral rights with copyright. Moral rights cannot be transferred (although on general principles as it is a civil right and not a fundamental right under the Indian constitution, moral rights can be waived).

What isn’t covered by copyright protection?

As in other common law jurisdictions, the ‘idea and expression’ dichotomy is applied broadly, as required by article 9.2 of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights. Furthermore, any work created primarily via the infringement of another work is not protected by copyright.

If a design is registered under the Designs Act 2000, it does not receive copyright protection under section 15 of the Copyright Act. Copyright in any design ceases to enjoy copyright protection if it is capable of being registered under the Designs Act 2000 but has not been, and more than 50 copies of the work have been made by any industrial process, according to section 15(2) of the Copyright Act 1957. However, it has been decided that in order for a work to be registrable as a design for the purposes of section 15(2), it must be ‘new,’ and that this is the only condition for section 15(2) to deny copyright protection to artistic works that are not registered as designs.