Notes for Intellectual Property Law , Exams for Intellectual Property (IP). MATS University
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Notes for Intellectual Property Law , Exams for Intellectual Property (IP). MATS University

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1

HANDBOOK ON INTELLECTUAL PROPERTY RIGHTS IN

INDIA

Rajkumar S. Adukia

B. Com. (Hons.), FCA, ACS, AICWA, LL.B, Dip.IFR (UK), MBA

Mobile +91 98200 61049/+91 93230 61049

Fax +91 22 26765579

Email rajkumarfca@gmail.com

www.carajkumarradukia.com

http://rishabhacademy.com

PREFACE

Intellectual property rights (IPR) have become important in the face of changing trade

environment which is characterized by global competition, high innovation risks, short product

cycle, need for rapid changes in technology, high investments in research and development

(R&D), production and marketing and need for highly skilled human resources. Regardless of

what product an enterprise makes or what service it provides, it is likely that it is regularly using

and creating a great deal of intellectual property. There is an emergent need for enterprises and

professionals to systematically consider the steps required for protecting, managing and

enforcing intellectual property rights, so as to get the best possible commercial results from its

ownership. This book provides an insight into the laws related to intellectual property and the

administration of these laws.

2

INDEX

S.No Contents Pg Nos

1 Introduction 3

2 History of IPR in India 10

3 Overview of Laws related to Intellectual Property Rights in India

16

4 Copyright 17

5 Patent 38

6 Trademark 66

7 Designs 76

8 Geographical Indications of Goods 84

9 Semiconductor Integrated Circuits Design 91

10 Biological Diversity 96

11 Protection of Plant Varieties and Farmer Rights 101

12 Undisclosed Information 106

13 Indian Intellectual Property – Administrative Machinery

107

14 The Agreement of Trade Related Aspects of Intellectual Property Rights (TRIPS)

111

15 World Intellectual Property Organization (WIPO) 113

16 Intellectual Property Treaties 116

17 Commercialization of Intellectual Property Rights(IPR)

119

18 Important Websites 122

3

1. INTRODUCTION

Intellectual property Right (IPR) is a term used for various legal entitlements which attach to

certain types of information, ideas, or other intangibles in their expressed form. The holder of

this legal entitlement is generally entitled to exercise various exclusive rights in relation to the

subject matter of the Intellectual Property. The term intellectual property reflects the idea that

this subject matter is the product of the mind or the intellect, and that Intellectual Property rights

may be protected at law in the same way as any other form of property. Intellectual property laws

vary from jurisdiction to jurisdiction, such that the acquisition, registration or enforcement of IP

rights must be pursued or obtained separately in each territory of interest.

Intellectual property rights (IPR) can be defined as the rights given to people over the creation of

their minds. They usually give the creator an exclusive right over the use of his/her creations for

a certain period of time.

What is Intellectual Property?

Intellectual property is an intangible creation of the human mind, usually expressed or translated

into a tangible form that is assigned certain rights of property. Examples of intellectual property

include an author's copyright on a book or article, a distinctive logo design representing a soft

drink company and its products, unique design elements of a web site, or a patent on the process

to manufacture chewing gum.

What is Intellectual Property Rights?

Intellectual property rights (IPR) can be defined as the rights given to people over the creation of

their minds. They usually give the creator an exclusive right over the use of his/her creations for

a certain period of time.

Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works,

and symbols, names, images, and designs used in commerce.

4

Categories of Intellectual Property

One can broadly classify the various forms of IPRs into two categories:

• IPRs that stimulate inventive and creative activities (patents, utility models, industrial

designs, copyright, plant breeders’ rights and layout designs for integrated circuits) and

• IPRs that offer information to consumers (trademarks and geographical indications).

IPRs in both categories seek to address certain failures of private markets to provide for an

efficient allocation of resources

IP is divided into two categories for ease of understanding:

1. Industrial Property

2. Copyright

Industrial property, which includes inventions (patents), trademarks, industrial designs, and

geographic indications of source; and

Copyright, which includes literary and artistic works such as novels, poems and plays, films,

musical works, artistic works such as drawings, paintings, photographs and sculptures, and

architectural designs. Rights related to copyright include those of performing artists in their

performances, producers of phonograms in their recordings, and those of broadcasters in their

radio and television programs

Intellectual property shall include the right relating to:

i. Literary, artistic and scientific works;

ii. Performance of performing artists;

iii. Inventions in all fields of human endeavour;

iv. Scientific discoveries;

v. Industrial designs;

vi. Trademarks, service marks and etc;

5

vii. Protection against unfair competition.

What is a property?

Property designates those things that are commonly recognized as being the possessions of an

individual or a group. A right of ownership is associated with property that establishes the good

as being "one's own thing" in relation to other individuals or groups, assuring the owner the right

to dispense with the property in a manner he or she deems fit, whether to use or not use, exclude

others from using, or to transfer ownership.

Properties are of two types - tangible property and intangible property i.e. one that is physically

present and the other which is not in any physical form. Building, land, house, cash, jewellery

are few examples of tangible properties which can be seen and felt physically. On the other hand

there is a kind of valuable property that cannot be felt physically as it does not have a physical

form. Intellectual property is one of the forms of intangible property which commands a material

value which can also be higher than the value of a tangible asset or property.

Rights protected under Intellectual Property

The different types of Intellectual Property Rights are:

i. Patents

ii. Copyrights

iii. Trademarks

iv. Industrial designs

v. Protection of Integrated Circuits layout design

vi. Geographical indications of goods

vii. Biological diversity

viii. Plant varieties and farmers rights

ix. Undisclosed information

a. Intellectual Property

6

1. Inventions

2. Trademarks

3. Industrial design

4. Geographical indications

b. Copyright

1. Writings

2. Paintings

3. Musical works

4. Dramatics works

5. Audiovisual works

6. Sound recordings

7. Photographic works

8. Broadcast

9. Sculpture

10. Drawings

11. Architectural works etc.

IPR as Instruments of Development

a. Key drivers of economic performance in R&D based growth models

b. Intellectual property policies do affect the extent and nature of investments

undertaken by multinational enterprises. At the same time, relative to other

factors determining foreign investment decisions, IPRs seem to be of relatively

minor importance.

7

Duration of Intellectual Property Rights in a nutshell

1) Term of every patent will be 20 years from the date of filing of patent application,

irrespective of whether it is filed with provisional or complete specification. Date of

patent is the date on which the application for patent is filed.

2) Term of every trademark registration is 10 years from the date of making of the

application which is deemed to be the date of registration.

3) Copyright generally lasts for a period of sixty years.

4) The registration of a geographical indication is valid for a period of 10 years.

5) The duration of registration of Chip Layout Design is for a period of 10 years counted

from the date of filing an application for registration or from the date of first commercial

exploitation anywhere in India or in any convention country or country specified by

Government of India whichever is earlier.

6) The duration of protection of registered varieties is different for different crops namely

18 years for trees and vines, 15 years for other crops and extant varieties.

Global Intellectual Property Trends

Ø With over 3 million applications filed per year, trademark protection is the most sought

after form of IP worldwide with growth rates of a similar magnitude as those for patents.

Ø In 2009, one quarter of all trademark applications were filed at the China Trademark

Office. When combined with the shares held by India, the Republic of Korea and Japan,

these four offices located in Asia accounted for 37 percent of total trademark

applications. India showed the highest five-year growth (13.5%) from 2005 to 2009,

whereas China had one of the highest annual growth rates (20.8%) from 2008 to 2009.

Ø In 2009, China accounted for 50 percent of total industrial design filing activity while

growing by 12.3 percent from 2008 to 2009. India was in the 9th place.

Ø In 2009, 1,41,943 trademark applications were filed, 34,287 patent applications were

filed and 6,092 Industrial designs applications were filed.

8

Intellectual Property Trends – India

Ø During 2009-10, 34,287 patent applications were filed, 6069 examined and 6168 patents

granted. The number of applications filed by the Indian applicants was 7044. Out of the

applications filed by the Indian applicants, Maharashtra accounted for the maximum

number followed by Delhi, Tamil Nadu, Karnataka, Andhra Pradesh, West Bengal etc.

Ø During 2009-10, 6092 design applications were filed, 6266 examined and 6025

registered. The number of applications filed by the Indian applicants was 4267. The

number of registered designs in force at the end of 2009-10 was 39008.

Ø During 2009-10, 1,41,943 trademark applications were filed, 25875 examined and 67,490

registered. The number of applications filed by the Indian applicants was 1,34,403. The

total number of registered trademarks as of 31st March, 2010 is 8,22,825.

Ø During 2009-10, 40 Geographical indications applications were filed and 14 were

registered. A total of 120 Geographical Indications have been registered till 31st March,

2010.

Ø During 2009-10, 142 applications were received for access of bio-resources for

research/commercial use, transfer of research results, intellectual property rights and third

party transfer. Totally, 13 agreements have been signed. So far, 11 patents have been

granted on the applications cleared by NBA. The NBA has also received a royalty

amount of Rs.37.89 lakhs from the applicants who have exported bio-resources.

Ø In 2010-11, a total of 642 applications representing 28 crops were received by the

Authority for seeking plant variety protection under the Act. The applications belong to

new (395), extant (216), farmers’ varieties (30) and essentially derived variety (1)

categories.

Initiatives of Government of India towards protection of IPR

1. The Government has brought out A Handbook of Copyright Law to create awareness of

copyright laws amongst the stakeholders, enforcement agencies, professional users like

the scientific and academic communities and members of the public.

9

2. National Police Academy, Hyderabad and National Academy of Customs, Excise and

Narcotics conducted several training programs on copyright laws for the police and

customs officers.

3. The Department of Education, Ministry of Human Resource Development, Government

of India has initiated several measures in the past for strengthening the enforcement of

copyrights that include constitution of a Copyright Enforcement Advisory Council

(CEAC), creation of separate cells in state police headquarters, encouraging setting up of

collective administration societies and organization of seminars and workshops to create

greater awareness of copyright laws among the enforcement personnel and the general

public.

4. Special cells for copyright enforcement have so far been set up in 23 States and Union

Territories, i.e. Andhra Pradesh, Assam, Andaman & Nicobar Islands, Chandigarh, Dadra

& Nagar Haveli, Daman & Diu, Delhi, Goa, Gujarat, Haryana, Himachal Pradesh,

Jammu & Kashmir, Karnataka, Kerala, Madhya Pradesh, Meghalaya, Orissa,

Pondicherry, Punjab, Sikkim, Tamil Nadu, Tripura and West Bengal.

5. The Government also initiates a number of seminars/workshops on copyright issues. The

participants in these seminars include enforcement personnel as well as representatives of

industry organizations.

10

2. HISTORY OF IPR IN INDIA

George Alfred DePenning is supposed to have made the first application for a patent in India in

the year 1856. On February 28, 1856, the Government of India promulgated legislation to grant

what was then termed as "exclusive privileges for the encouragement of inventions of new

manufactures" i.e the Patents Act. On March 3, 1856, a civil engineer, George Alfred DePenning

of 7, Grant’s Lane, Calcutta petitioned the Government of India for grant of exclusive privileges

for his invention - "An Efficient Punkah Pulling Machine". On September 2, DePenning,

submitted the Specifications for his invention along with drawings to illustrate its working.

These were accepted and the invention was granted the first ever Intellectual Property protection

in India.

History of Copyright Law in India

Modern copyright law developed in India gradually, in a span of more than 150 years.

Copyright law entered India in 1847 through an enactment during the East India Company's

regime. According to the 1847 enactment, the term of copyright was for the lifetime of the author

plus seven years post-mortem. But in no case could the total term of copyright exceed a period of

forty-two years. The government could grant a compulsory licence to publish a book if the owner

of copyright, upon the death of the author, refused to allow its publication. The act of

infringement comprised in a person’s unauthorized printing of a copyright work for (or as a part

of attempt of) "sale hire, or exportation", or "for selling, publishing or exposing to sale or hire".

Suit or action for infringement was to be instituted in the "highest local court exercising original

civil jurisdiction." The Act provided specifically that under a contract of service copyright in

"any encyclopedia, review, magazine, periodical work or work published in a series of books or

parts" shall vest in the "proprietor, projector, publisher or conductor." Infringing copies were

deemed to be copies of the proprietor of copyrighted work. Importantly, unlike today, copyright

in a work was not automatic. Registration of copyright with the Home Office was mandatory for

the enforcement of rights under the Act. However, the Act also specifically reserved the

11

subsistence of copyright in the author, and his right to sue for its infringement to the extent

available in law other than the 1847 Act. At the time of its introduction in India, copyright law

had already been under development in Britain for over a century and the provisions of the 1847

enactment reflected the learnings from deliberations during this period.

In 1914, the then Indian legislature enacted a new Copyright Act which merely extended most

portions of the United Kingdom Copyright Act of 1911 to India. It did, however, make a few

minor modifications. First, it introduced criminal sanctions for copyright infringement (sections

7 to 12). Second, it modified the scope of the term of copyright; under section 4 the "sole right"

of the author to "produce, reproduce, perform or publish a translation of the work shall subsist

only for a period of ten years from the date of the first publication of the work." The author,

however, retained her "sole rights" if within the period of ten years she published or authorised

publication of her work a translation in any language in respect of that language.

The 1914 Act was continued with minor adaptations and modifications till the 1957 Act was

brought into force on 24th January, 1958.

History of Patent Law in India

The first legislation in India relating to patents was the Act VI of 1856. The objective of this

legislation was to encourage inventions of new and useful manufactures and to induce inventors

to disclose secret of their inventions. The Act was subsequently repealed by Act IX of 1857 since

it had been enacted without the approval of the sovereign. Fresh legislation for granting

‘exclusive privileges’ was introduced in 1859 as Act XV of 1859. This legislation contained

certain modifications of the earlier legislation, namely, grant of exclusive privileges to useful

inventions only and extension of priority period from 6 to 12 months. The Act excluded

importers from the definition of inventor. The 1856 Act was based on the United Kingdom Act

of 1852 with certain departures including allowing assignees to make application in India and

also taking prior public use or publication in India or United Kingdom for the purpose of

ascertaining novelty.

12

The Act of 1859 provided protection for invention only and not for designs whereas United

Kingdom had been protecting designs from 1842 onwards. To remove this lacuna, the ‘Patterns

and Designs Protection Act’ (Act XIII) was passed in 1872. This Act amended the 1859 Act to

include any new and original pattern or design or the application of such pattern to any substance

or article of manufacture within the meaning of ‘new manufacture’. The Act XV of 1859 was

further amended in 1883 by XVI of 1883 to introduce a provision to protect novelty of the

invention, which prior to making application for their protection were disclosed in the

Exhibitions of India. A grace period of 6 months was provided for filing such applications after

the date of the opening of such Exhibition.

In 1888, new legislation was introduced to consolidate and amend the law relating to invention

and designs in conformity with the amendments made in the UK law.

In 1911, the Indian Patents and Designs Act, 1911, (Act II of 1911) was brought in replacing all

the previous legislations on patents and designs. This Act brought patent administration under

the management of Controller of Patents for the first time. This Act was amended in 1920 to

provide for entering into reciprocal arrangements with UK and other countries for securing

priority. In 1930, further amendments were made to incorporate, inter-alia, provisions relating to

grant of secret patents, patent of addition, use of invention by Government, powers of the

Controller to rectify register of patent and increase of term of the patent from 14 years to 16

years. In 1945, another amendment was made to provide for filing of provisional specification

and submission of complete specification within nine months.

After Independence, it was felt that the Indian Patents & Designs Act, 1911 was not fulfilling its

objective. It was found desirable to enact comprehensive patent law owing to substantial changes

in political and economic conditions in the country. Accordingly, the Government of India

constituted a committee under the Chairmanship of Justice (Dr.) Bakshi Tek Chand, a retired

Judge of Lahore High Court, in 1949, to review the patent law in India in order to ensure that the

patent system is conducive to the national interest.

The Committee submitted its interim report on 4th August, 1949 with recommendations for

prevention of misuse or abuse of patent right in India and for amendments to sections 22, 23 &

13

23A of the Patents & Designs Act, 1911 on the lines of the United Kingdom Acts of 1919 and

1949.

Based on the recommendations of the Committee, the 1911 Act was amended in 1950 (Act

XXXII of 1950) in relation to working of inventions and compulsory licence/revocation.

In 1952, an amendment was made to provide compulsory licence in relation to patents in respect

of food and medicines, insecticide, germicide or fungicide and a process for producing substance

or any invention relating to surgical or curative devices, through Act LXX of 1952. The

compulsory licence was also available on notification by the Central Government. Based on the

recommendations of the Committee, a bill was introduced in the Parliament in 1953 (Bill No.59

of 1953). However, the bill lapsed on dissolution of the Lok Sabha.

In 1957, the Government of India appointed Justice N. Rajagopala Ayyangar Committee to

examine the question of revision of the Patent Law and advise government accordingly. The

report of the Committee, which comprised of two parts, was submitted in September, 1959. The

first part dealt with general aspects of the patent law and the second part gave detailed note on

the several clauses of the lapsed bill of 1953. The first part also dealt with evils of the patent

system and solution with recommendations in regard to the law. The committee recommended

retention of the patent system, despite its shortcomings. This report recommended major changes

in the law which formed the basis of the introduction of the Patents Bill, 1965. This bill was

introduced in the Lok Sabha on 21st September, 1965, which, however, lapsed.

In 1967, an amended bill was introduced which was referred to a Joint Parliamentary Committee

and on the final recommendation of the Committee, the Patents Act, 1970 was passed. This Act

repealed and replaced the 1911 Act so far as the patents law was concerned. However, the 1911

Act continued to be applicable to designs. Most of the provisions of the 1970 Act were brought

into force on 20th April, 1972 with the publication of the Patents Rules, 1972.

This Act remained in force for about 24 years till December 1994 without any change. An

ordinance effecting certain changes in the Act was issued on 31st December 1994, which ceased

to operate after six months. Subsequently, another ordinance was issued in 1999. This ordinance

was later replaced by the Patents (Amendment) Act, 1999 that was brought into force

14

retrospectively from 1st January, 1995. The amended Act provided for filing of applications for

product patents in the areas of drugs, pharmaceuticals and agro chemicals though such patents

were not allowed. However, such applications were to be examined only after 31st December,

2004. Meanwhile, the applicants could be allowed Exclusive Marketing Rights (EMRs) to sell or

distribute these products in India, subject to fulfillment of certain conditions.

The second amendment to the 1970 Act was made through the Patents (Amendment) Act, 2002

(Act 38 0f 2002). This Act came into force on 20th May, 2003 with the introduction of the new

Patents Rules, 2003 by replacing the earlier Patents Rules, 1972.

The third amendment to the Patents Act, 1970 was introduced through the Patents (Amendment)

Ordinance, 2004 with effect from 1st January, 2005. This Ordinance was later replaced by the

Patents (Amendment) Act, 2005 (Act 15 Of 2005) on 4th April, 2005 which was brought into

force from 1st January, 2005.

History of Trademark Law in India

While some form of proprietary protection for marks in India dates back several millennia,

India’s statutory Trademarks Law dates back to 1860. Prior to 1940 there was no official

trademark Law in India. Numerous problems arouse on infringement, law of passing off etc and

these were solved by application of section 54 of the Specific Relief Act, 1877 and the

registration was obviously adjudicated by obtaining a declaration as to the ownership of a

trademark under Indian Registration Act 1908.

To overcome the aforesaid difficulties the Indian Trademarks Act was passed in 1940, this

corresponded with the English Trademarks Act. After this there was an increasing need for more

protection of Trademarks as there was a major growth in Trade and Commerce. The replacement

to this act was the Trademark and Merchandise Act, 1958. This Act was to provide for

registration and better protection of Trademarks and for prevention of the use of fraudulent

marks on merchandise. This Law also enables the registration of trademarks so that the

proprietor of the trademark gets legal right to the exclusive use of the trademark. The objective

of this act was easy registration and better protection of trademarks and to prevent fraud.

15

The repeal of the Trademarks and Merchandise Act gave rise to the Trademark Act 1999; this

was done by the Government of India so that the Indian Trademark Law is in compliance with

the TRIPS obligation on the recommendation of the World Trade Organisation. The object of the

1999 Act is to confer the protection to the user of the trademark on his goods and prescribe

conditions on acquisition, and legal remedies for enforcement of trademark rights

16

3. OVERVIEW OF LAWS RELATED TO INTELLECTUAL PROPERTY RIGHTS

IN INDIA

The Rules and Laws governing Intellectual Property Rights in India are as follows:

1. The Copyright Act, 1957, The Copyright Rules, 1958 and International Copyright

Order, 1999

2. The Patents Act, 1970 The Patents Rules, 2003, The Intellectual Property Appellate

Board (Patents Procedure) Rules, 2010 and The Patents (Appeals and Applications to

the Intellectual Property Appellate Board) Rules, 2011

3. The Trade Marks Act, 1999, The Trade Marks Rules, 2002, The Trade Marks

(Applications and Appeals to the Intellectual Property Appellate Board) Rules, 2003

and The Intellectual Property Appellate Board (Procedure) Rules, 2003

4. The Geographical Indications of Goods (Registration and Protection) Act, 1999 and

The Geographical Indications of Goods (Registration and Protection) Rules, 2002

5. The Designs Act, 2000 and The Designs Rules, 2001

6. The Semiconductors Integrated Circuits Layout-Design Act, 2000 and The

Semiconductors Integrated Circuits Layout-Design Rules, 2001

7. The Protection of Plant varieties and Farmers’ Rights Act, 2001 and The Protection of

Plant varieties and Farmers Rights’ Rules, 2003

8. The Biological Diversity Act, 2002 and The Biological Diversity Rules, 2004

9. Intellectual Property Rights (Imported Goods) Rules, 2007

17

4. COPYRIGHT

4.1. What is Copyright?

Copyright is the set of exclusive rights granted to the author or creator of an original work,

including the right to copy, distribute and adapt the work. Copyright lasts for a certain time

period after which the work is said to enter the public domain. Copyright gives protection for the

expression of an idea and not for the idea itself. For example, many authors write textbooks on

physics covering various aspects like mechanics, heat, optics etc. Even though these topics are

covered in several books by different authors, each author will have a copyright on the book

written by him / her, provided the book is not a copy of some other book published earlier.

Copyright ensures certain minimum safeguards of the rights of authors over their creations,

thereby protecting and rewarding creativity. Creativity being the keystone of progress, no

civilized society can afford to ignore the basic requirement of encouraging the same. Economic

and social development of a society is dependent on creativity. The protection provided by

copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and

producers of sound recordings, cinematograph films and computer software, creates an

atmosphere conducive to creativity, which induces them to create more and motivates others to

create.

4.2. Copyright law in India

The Copyright Act of 1957, The Copyright Rules, 1958 and the International Copyright Order,

1999 governs the copyright protection in India. It came into effect from January 1958. The Act

has been amended in 1983, 1984, 1992, 1994 and 1999. Before the Act of 1957, copyright

protection was governed by the Copyright Act of 1914 which was the extension of British

Copyright Act, 1911.

The Copyright Act, 1957 consists of 79 sections under 15 chapters while the Copyright Rules,

1958 consists of 28 rules under 9 chapters and 2 schedules.

18

4.3. Meaning of copyright

According to Section 14 of the Act, “copyright” means the exclusive right subject to the

provisions of this Act, to do or authorise the doing of any of the following acts in respect of a

work or any substantial part thereof, namely:-

(a) in the case of a literary, dramatic or musical work, not being a computer programme, -

(i) to reproduce the work in any material form including the storing of it in any medium

by electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts

specified in relation to the work in sub-clauses (i) to (vi);

(b) in the case of a computer programme,-

(i) to do any of the acts specified in clause (a);

(ii) to sell or give on commercial rental or offer for sale or for commercial rental any

copy of the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes

where the programme itself is not the essential object of the rental.

(c) in the case of an artistic work,-

(i) to reproduce the work in any material form including depiction in three dimensions of

a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to

the work in sub-clauses (i) to (iv);

19

(d) In the case of cinematograph film, -

(i) to make a copy of the film, including a photograph of any image forming part thereof;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of

whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) In the case of sound recording, -

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording

regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

Explanation : For the purposes of this section, a copy which has been sold once shall be deemed

to be a copy already in circulation.

4.4. Classes of works for which copyright protection is available

Indian Copyright Act affords separate and exclusive copyright protection to the following 7

clauses of work:

1. Original Literary Work

2. Original Dramatic Work

3. Original Musical Work

4. Original Artistic Work

5. Cinematograph Films

6. Sound recording

7. Computer Programme

Copyright will not subsist in any cinematograph film if a substantial part of the film is an

infringement of the copyright in any other work or in any sound recording made in respect of a

literary, dramatic or musical work, if in making the sound recording, copyright in such work has

20

been infringed. In case of work of architecture, copyright will subsist only in the artistic

character and design and will not extend to processes or methods of construction.

4.5. Ownership of Copyright

The author of the work will be the first owner of the copyright in the following instances:

i. In the case of a literary, dramatic or artistic work made by the author in the course of his

employment by the proprietor of a newspaper, magazine or similar periodical under a

contract of service or apprenticeship, for the purpose of publication in a newspaper,

magazine or similar periodical, the said proprietor will, in the absence of any agreement

to the contrary, be the first owner of the copyright in the work in so far as the copyright

relates to the publication of the work in any newspaper, magazine or similar periodical, or

to the reproduction of the work for the purpose of its being so published, but in all other

respects the author will be the first owner of the copyright in the work.

ii. In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a

cinematograph film made, for valuable consideration at the instance of any person, such

person will, in the absence of any agreement to the contrary, be the first owner of the

copyright therein.

iii. In the case of a work made in the course of the author’s employment under a contract of

service or apprenticeship, the employer will, in the absence of any agreement to the

contrary, be the first owner of the copyright therein.

iv. In the case of any address or speech delivered in public, the person who has delivered

such address or speech or if such person has delivered such address or speech on behalf

of any other person, such other person will be the first owner of the copyright therein

notwithstanding that the person who delivers such address or speech, or, as the case may

be, the person on whose behalf such address or speech is delivered, is employed by any

other person who arranges such address or speech or on whose behalf or premises such

address or speech is delivered.

v. In the case of a government work, government in the absence of any agreement to the

contrary, will be the first owner of the copyright therein.

21

vi. In the case of a work made or first published by or under the direction or control of any

public undertaking, such public undertaking in the absence of any agreement to the

contrary, will be the first owner of the copyright therein.

vii. In case of any work which is made or first published by or under the directions or control

of any international organisation, such international organisation will be the first owner

of the copyright therein.

4.6. Assignment of copyright

Sec.18 of the Copyright Act, 1957 deals with assignment of copyright. The owner of the

copyright in an existing work or the prospective owner of the copyright in a future work may

assign to any person the copyright either wholly or partially and either generally or subject to

limitations and either for the whole term of the copyright or any part thereof.

The mode of assignment should be in the following manner:

• Assignment should be given in writing and signed by the assignor or by his duly

authorized agent.

• The assignment should indentify the work and specify the rights assigned and the

duration and territorial extent of such assignment.

• The assignment should also specify the amount of royalty payable, if any, to the author

or his legal heirs during the currency of the assignment and the assignment may be

subject to revision, extension or termination on terms mutually agreed upon by the

parties.

• Where the assignee does not exercise the rights assigned to him within a period of one

year from the date of assignment, the assignment in respect of such rights will be deemed

to have lapsed after the expiry of the said period unless otherwise specified in the

assignment.

The period of assignment will be deemed to be 5 years from the date of assignment unless

specifically mentioned. If the territorial extent of assignment of the rights is not specified, it will

be presumed to extend within India.

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If any dispute arises with respect to the assignment of any copyright the Copyright Board may,

on receipt of a complaint from the aggrieved party and after holding such inquiry as it considers

necessary, pass such order as it may deem fit including an order for the recovery of any royalty

payable, provided that the Copyright Board may not pass any order to revoke the assignment

unless it is satisfied that the terms of assignment are harsh to the assignor, in case the assignor is

also the author, provided further that no order of revocation of assignment, be made within a

period of five years from the date of such assignment.

4.7. Transmission of copyright by testamentary disposition

Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical

work, or to an artistic work, and the work was not published before the death of the testator, the

bequest can, unless the contrary intention is indicated in the testator's will or any codicil thereto,

be construed as including the copyright in the work in so far as the testator was the owner of the

copyright immediately before his death. Manuscript means the original document embodying the

work, whether written by hand or not.

4.8. Relinquish copyright

The author of a work can relinquish all or any of the rights comprised in the copyright in the

work by giving notice in Form I to the Registrar of Copyrights and thereupon such rights will

cease to exist from the date of the notice. On receipt of notice the Registrar of Copyrights will

publish it in the Official Gazette and in such other manner as he may deem fit. The

relinquishment of all or any of the rights comprised in the copyright in a work will not affect any

rights subsisting in favour of any person on the date of the notice given to the Registrar.

4.9. Term of copyright

Section 22 to 29 of the Copyright Act, 1957 deals with the term of copyright. Copyright

generally lasts for a period of sixty years.

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ü In the case of literary, dramatic, musical or artistic works, the sixty year period is counted

from the year following the death of the author.

ü In the case of cinematograph films, sound recordings, photographs, posthumous

publications, anonymous and pseudonymous publications, works of government and

public undertakings and works of international organisations, the 60-year period is

counted from the date of publication.

ü In case of Broadcast reproduction right - 25 years from the beginning of the calendar year

next following the year in which the broadcast is made.

ü In case of Performers right - 25 years from the beginning of the calendar year next

following the year in which the performance is made.

4.10. Rights of Broadcasting Organisation and of Performers

Every broadcasting organisation will have a special right to be known as 'broadcast reproduction

right' in respect of its broadcasts. The broadcast reproduction right will subsist until twenty-five

years from the beginning of the calendar year next following the year in which the broadcast in

made.

This would prevent any person other than the broadcasting organisation from:

i) Re-broadcasting what has already been broadcasted

ii) Causing the broadcast to be seen or heard by the public on payment of charges

iii) Making any sound/visual recording of the broadcast

iv) Making any reproduction of such sound recording ro visual recording where such

initial recording was done without licence or, where it was licensed, for any purpose not

envisaged by such licence

v) Selling or hiring or offering to sell or hire sound/visual recordings.

Where any performer appears or engages in any performance, he will have a special right known

as the 'performer's right' in relation to such performance. The performer's right will subsist until

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fifty years from the beginning of the calendar year next following the year in which the

performance is made. These rights are:

i) No person may make a sound/visual recording of the performer’s performances

ii) Reproduce a sound/visual recording

iii) Broadcast the performance

iv) Communicate to the public otherwise than by broadcast

4.11. Intellectual Property Rights (IPR) of Computer Software

In India, the Intellectual Property Rights (IPR) of computer software is covered under the

Copyright Law. Accordingly, the copyright of computer software is protected under the

provisions of Indian Copyright Act 1957. Major changes to Indian Copyright Law were

introduced in 1994 and came into effect from 10 May 1995. These changes or amendments made

the Indian Copyright law one of the toughest in the world.

The amendments to the Copyright Act introduced in June 1994 were, in themselves, a landmark

in the India's copyright arena. For the first time in India, the Copyright Law clearly explained:

• The rights of a copyright holder

• Position on rentals of software

• The rights of the user to make backup copies

Since most software is easy to duplicate, and the copy is usually as good as original, the

Copyright Act was needed.

Some of the key aspects of the law are:

• According to section 14 of this Act, it is illegal to make or distribute copies of

copyrighted software without proper or specific authorization.

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• The violator can be tried under both civil and criminal law.

• A civil and criminal action may be instituted for injunction, actual damages (including

violator's profits) or statutory damages per infringement etc.

• Heavy punishment and fines for infringement of software copyright.

• Section 63 B stipulates a minimum jail term of 7 days, which can be extended up to 3

years

4.12. Copyright Infringements

Some of the commonly known acts involving infringement of copyright:

o Making infringing copies for sale or hire or selling or letting them for hire;

o Permitting any place for the performance of works in public where such performance

constitutes infringement of copyright;

o Distributing infringing copies for the purpose of trade or to such an extent so as to affect

prejudicially the interest of the owner of copyright ;

o Public exhibition of infringing copies by way of trade; and

o Importation of infringing copies into India.

Civil Remedies for Copyright Infringement

A copyright owner can take legal action against any person who infringes the copyright in the

work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

The Criminal Offence

Any person who knowingly infringes or abets the infringement of the copyright in any work

commits criminal offence under Section 63 of the Copyright Act. The minimum punishment for

infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-

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