The provisions of the Indian Copyright Act, 1957 and the Copyright Rules, 1958 as amended from time to time and applicable as on today, governs the subject of copyright law in India. The history of copyright law in India can be traced back from colonial times. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. Also, The Copyright is granted and protected as per the provisions of the Act and there exists no common law right. Under the Constitution of India, the matter of Copyright fall under Entry 49 of List-11 which is the Union list and it is a subject of Central law. Thus, the parliament has the exclusive right to frame laws on this subject.
Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings.2 The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.2 The scope and duration of protection provided under copyright law vary with the nature of the protected work.
According to the Copyright Act, 19573, copyright means the exclusive right, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely Literary works other than computer Programs, Musical Works, Artistic Works, Cinematography Films, Sound Recording and Computer Programs, tables & Compilations.
Laws and Conventions governing copyright laws in India
India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Initially, India was not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) but subsequently entered the treaty in 2013.4
The object of the Act is to bring an Act to amend and consolidate the law relating to copyright.5 Also, to bring an act in conformity with two WIPO treaties, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (“WPPT”). Other functions of the Act include establishing provisions to protect the Music and Film Industry and address its concerns; to address the concerns of the physically disabled and to protect the interests of the author of any work; and enforcement of rights. The basic premise to be protected by copyright is originality. The work should be original and not infringing any other copyrighted material to enjoy one’s copyright status under the Copyright Act.
What is a copyright office?
The Act establishes a Copyright Office6, which shall be under the immediate control of the Registrar of Copyrights, who shall act under the superintendence and direction of the Central Government. A common seal is assigned for the Copyright Office. The Copyright Act,1957 also enumerates the appointment of such Registrar of Copyrights7, that is, by the Central Government. It also gives power to the Central Government to appoint one or more Deputy Registrar of Copyrights7 to carry out functions under the superintendence and direction of the Registrar of Copyrights as the Registrar may, from time to time, assigned to him under this Act. The Copyright Office is presently located at New Delhi8 or other regional offices where the Registrar of Copyrights, headed by the Registrar of Copyright maintained to provide registration for all types of work.
Registrar of Copyrights
The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of Civil Procedure in respect of the following matters, namely, summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavit; issuing commissions for the examination of witnesses or documents; requisitioning any public record or copy thereof from any court or office; any other matters which may be prescribed.
Copyright Registrar primarily serves as an office of record, a place where claims to copyright are registered and documents related to copyright are recorded. the purpose is to furnish information about the provisions of the copyright law and the procedures for making registration, to explain the operations and practices of the Copyright Office, and to report on facts found in the public records of the Office.
Application for registration of copyright
The applications for registration of all types of works can be filled at the Copyright Office. The applications are also accepted by post. Online registration through “E-filing facility” has been provided from 8 September 2009, which facilitates the applicants to file applications at the time and place chosen by them.9 There exists a set procedure for registration of a work under the Copyright Rules 1958 which has been suitably amended from time to time and registration is provided for both published and unpublished works.10
Landmark cases regarding copyright office and registration of copyright
Registration of work is not mandatory for availing the protection under the Copyright Act, 1957. Thus, we can say that such protection works as an “automatic” right. In the landmark case of Asian Paints (I) Ltd. Vs Jaikishan Paints & Allied Products11, the Hon’ble Bombay High Court observed: “Registration under the Copyright Act is optional and not compulsory. Registration is not necessary to claim a copyright. Registration under the Copyright Act merely raises a prima facie presumption in respect of the particulars entered in the Register of Copyright. The presumption is however not conclusive. The Copyright subsists as soon as the work is created and given a material form even if it is not registered”.
In another case of International Association of Lions Clubs Vs National Association of Indian Lions12, the Hon’ble Bombay High Court reiterated that registration thereofis only a prima facie evidence of ownership of such copyright and Design.
The Apex Court in R.G. Anand’s Case13 held that registration of works is not mandatory for availing copyright protection. Therefore, through various cases, the Courts in India have upheld the principle of ‘automatic protection’ and that registration is not a condition prerequisite for availing copyright protection.
Procedure to register a copyright
Even Section 48 of the Copyright Act, 1957, also enumerates that the Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom, certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original.
The procedure for registration is as follows: Firstly, an application for registration is to be made in Form IV as prescribed in the first schedule to the Rules accompanied by the requisite fees prescribed in the second schedule to the Rules, then separate applications are to be made for registration of each work and lastly, the applications shall be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed, and the same has to be annexed to the application form.14
COPYRIGHT BOARD OR APPELLATE BOARD
Section 11 of the Copyright Act, 1957 provides for the establishment of the “Copyright Board” or now termed as the “Appellate Board”15. It is a quasi-judicial body constituted by the Central Government. In accordance with Section 11 of the Copyright Act, 1957, the Appellate Board shall be the same board as established under Section 83 of the Trade Marks Act, 1999, that is, a board constituted by the Central Government, by notification in the Official Gazette, to be known as the Intellectual Property Appellate Board to exercise the jurisdiction, powers and authority conferred on it by the Act.
The Board consists of a Chairman and other members16. The person to be appointed as a Chairman of the Copyright Board shall be qualified to hold the office of a judge of a High Court or could be holding such position or must have held. There is no qualification mentioned about the members of the Board. The Chairman and the members shall hold their office for five years. The members as aforesaid shall be eligible for reappointment.
The Board shall be deemed to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 and all proceedings before the Board shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code.17
POWERS AND PROCEDURE OF THE COPYRIGHT BOARD
The Appellate Board may exercise and discharge its powers and functions through Benches constituted by the Chairman of the Appellate Board from amongst its members. Provided that, if the Chairman is of opinion that any matter of importance is required to be heard by a larger bench, he may refer the matter to a special bench consisting of five members.18
The Board has been entrusted with the following powers and functions. These include the power to:
- Possess certain powers of Civil Court19
Such powers as exercised by a civil court under the Code of Civil Procedure, 1908, in respect of the following matters, namely, summoning and enforcing the attendance of any person and examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavits; issuing commissions for the examination of witnesses or documents; requisitioning any public record or copy thereof from any court or office and any other matter which may be prescribed.
- Hear appeals against the orders of the Registrar of Copyright20
Such an appeal must be filed by the aggrieved party within three months of such decision or order of the Registrar of Copyright.
Also, any person aggrieved by a final decision or order of the Appellate Board (not being a decision or order made under Section 6 and an appeal under sub-section (1) of Section 72, may, within three months from the date of such decision or order, appeal to the High Court within whose jurisdiction the appellant actually and voluntarily resides or carries on business or personally works for gain.
- Adjudicate upon disputes on assignment of copyright21
The Appellate Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment. If any dispute arises with respect to the assignment of any copyright, the Appellate 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. Every complaint received shall be dealt with by the Appellate Board as far as possible and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the complaint and any delay in compliance of the same, the Appellate Board shall record the reasons thereof.
- Regulate its own procedure22:
The Appellate Board has the power to regulate its own procedure, including the fixing of places and times of its sittings, subject to certain conditions and the provisions of the Copyright Act, 1957. The Appellate Board may exercise and discharge its powers and functions through Benches constituted by the Chairman of the Appellate Board from amongst its members.
- Grant compulsory licence to publish or republish works (in certain circumstances)23:
The Board may grant compulsory licence to publish or republish works for the benefit of the disabled persons, on an application by such person.
- Grant compulsory licence to produce and publish a translation of a literary or dramatic work
In any language after a period of seven years from the first publication of the work
- Hear and decide disputes as to
whether a work has been published or about the date of publication or about the term of copyright of a work in another country;
- Fix rates of royalties in respect of sound recordings under the cover-version provision24
One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each calendar year in which copies of it are made. The Appellate Board may, by general order, fix a lower minimum in respect of works in a particular language or dialect having regard to the potential circulation of such works.
- Fix Resale Share
The Appellate Board may fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.
- Hear applications for rectification of entries in the Register of Copyrights25:
The Appellate Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by— the making of any entry wrongly omitted to be made in the register, or the expunging of any entry wrongly made in, or remaining on the register, or the correction of any error or defect in the register.
1. Schedule 7, List I Entry 49: Patent, Inventions and Design; Copyright, Trade-marks and Merchandise marks.
2. http://www.wipo.int/wipolex/en/text.jsp?file_id=352024 (WIPO Lex)
3. Section 14, the Copyright Act, 1957
5. Preamble, Copyright Act, 1957
6. Section 9, Copyright Act, 1957, Chapter II
7. Section 10 Copyright Act, 1957
8. Boudhik Sampada Bhawan, Plot No. 32, Sector 14, Dwarka, New Delhi-110078
10. Chapter X of the Indian Copyright Act 1957 and Form IV of Copyright Rules are relevant for the registration process.
11. 2002 (6) Bom CR 1: (2002) 4 Bom LR 941: 2002(4) MAH LJ 536.
12. 2006 (33) PTC 79 (BOM) 91
13. AIR 1978 SC 1613
15. Substituted by Act 7 of 2017, Section 160 (c), for “Copyright Board” (w.e.f. 26-5-2017); Chapter II of the Copyright Act, 1957
16. Section 12, Copyright Act, 1957
17. Section 12 (7), the Copyright Act, 1957
18. Section 12 (2), the Copyright Act, 1957
19. Section 74, the Copyright Act, 1957
20. Section 72, the Copyright Act, 1957
21. Section 19A, the Copyright Act, 1957
22. Section 12 (1), the Copyright Act, 1957
23. Section 31B, the Copyright Act, 1957
24. Section 31C, the Copyright Act, 1957
25. Section 50, the Copyright Act, 1957
Tanvi hails from Vivekananda Institute of Professional Studies and spends most of her time reading and researching. Her Interest areas are Property Law, Human Rights Law and Constitutional Law. For any clarifications, feedback, and advice, you can reach us at firstname.lastname@example.org