Unlike patents, copyright is easy to obtain and also, unfortunately, easy to infringe. One of the salient features of copyright is that it need not be formally registered with any authority, unlike other intellectual properties that require to be registered with the relevant government authority. Copyright persists in literary, artistic, dramatic, and cinematographic works1, which through today’s technology, can be quickly disseminated not only domestically but also globally. However, this also paves the way for more accessible means to infringe copyright. Hence, municipal laws need to address the growing issue of protecting “foreign works” under their national system and recognizing international copyrights. Territoriality2 marks intellectual property rights protection. Intellectual property cannot be covered in territories in which it is not registered, and it is not feasible to note your intellectual property in every country. Hence, several International Conventions were established to address this need and formulate a uniform, global system to ensure international protection of intellectual property rights3. The national laws of various countries on copyright may vary to a certain degree. Hence it was imperative to establish global norms that can be followed by every country when dealing with international copyright issues.
International Copyrights are protected through various Conventions like the
•TRIPS Agreement4 (Agreement on Trade-Related Aspects of Intellectual Property Rights),
•Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties5
•Universal Copyright Protection Convention6
•The Berne Convention7
•Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms8.
INTERNATIONAL COPYRIGHT UNDER THE INDIAN SYSTEM
In India, Copyright is regulated by the Copyright Act of 1957 and the Copyright Rules of 2013, and the International Copyright Order, 1999. The Copyright Act of 1957 is the primary Act concerning Copyright, while the Copyright Rules of 2013 and the International Copyright Order of 1999 are supplementary laws.
THE COPYRIGHT ACT OF 1957
While the Act itself deals with international copyright under Chapter IX, the terms ‘foreign works’ or ‘international copyright’ are nowhere defined in the Act9. However, section 2(l) of the Act defines ‘Indian work’ as a literary, dramatic, or musical work where
(i) the author of which is a citizen of India; or
(ii) which is first published in India; or
(iii) the author of which, in the case of an unpublished work is, at the time of the making of the book, a citizen of India
Hence we can presume that works other than Indian Works fall under the category of Foreign Works. Also, the meaning of ‘Foreign Work’ can be culled from section 40 of the Act.
Chapter IX deals with International Copyright under sections 40 to 43. In short, the Act treats the Foreign Works of the countries mentioned in the International Copyright Order, 1999 as if they were Indian Works, also giving the Central Government power to restrict the rights of foreign authors under certain circumstances.
SEC 40 – POWER TO EXTEND COPYRIGHT TO FOREIGN WORKS
This provision of the Copyright Act enables the Central Government to extend copyright to foreign works by publishing an Order in the Official Gazette. An essential feature of this provision is that only the countries mentioned in the Order, which is The International Copyright Order, 1999, can be accorded copyright in India. The “territories outside India” mentioned in subsections of this section must be included in the International Copyright Order of 1999. Hence countries which do not find their names in the International Copyright Order, 1999 cannot claim copyright for their works in India. The Central Government can extend any or all provisions of the Copyright Act to the works falling under the following categories, thus treating them in a manner as if they were Indian Works.
(a) Works published in any territory outside India to be treated in a manner as if they were first published in India
(b) Unpublished works whose authors at the time of making the work were subjects or citizens of a foreign country to be treated in a manner as if the authors were Indian citizens.
(c) With respect to the domicile of an author in any territory outside India, the Copyright Act will apply to him as if his domicile were in India
(d) Any work whose author at the date of the first publication of the work was a subject or citizen of a foreign country, or who was dead at the time of the first publication and a subject or citizen of a foreign country, the Copyright Act will apply to him as if he were an Indian citizen at that date or time.
PROVISO TO SECTION 40 OF THE COPYRIGHT ACT OF 1957
However, the proviso to this section dictates that before adding a country (other than those countries with which India has entered into a Treaty or which is a party to a Convention to which India is a party too) to the International Copyright Order, 1999 or any other Order made under this section, the Central Government should make sure that the concerned country has made or undertaken to make provisions for the protection, in that country, of the works entitled to copyright under the provisions in the Copyright Act of 1957, in other words, the concerned foreign country should accord protection to works of Indian authors.
The term of copyright protection in India shall not exceed the term of protection accorded in the country of origin of the foreign work. Also, the term of protection accorded by the foreign country should not exceed the term of protection accorded by India.
The enjoyment of the rights accorded by the Copyright Act of 1957 shall be subject to the fulfilment of the formalities and conditions prescribed by the International Copyright Order, 1999. Also, the International Copyright Order may provide that the whole of the Copyright Act, 1957 or any part of it shall not apply to foreign works made before the commencement of the Order or the Copyright Act; or to works first published before the commencement of the Order.
SECTION 40A – APPLICATION OF CHAPTER VIII TO BROADCASTING ORGANISATIONS AND PERFORMERS
This provision empowers the Central Government to extend the rights under Chapter VIII to broadcasts and performances of foreign countries if it is satisfied that such country has made or undertaken to make the necessary provisions for the protection of rights in that country, as it is available in India under the Copyright Act of 1957. The Central Government can extend the rights of Broadcasting Organizations conferred under Chapter VIII of the Copyright Act, 1957
(a) To Broadcasting organizations whose headquarters is situated in a country which is included in the International Copyright Order, 1999 or the broadcast was transmitted from a transmitter situated in a country included in the Order, as if the headquarters of such organization were situated in India or such broadcast was transmitted from a transmitter situated in India
(b) To performances that took place in a territory outside India in a manner as if they took place in India
(c) To performances that are incorporated in a sound recording that was published in a country included in the Order as if it were published in India
(d) To performances not fixed on a sound recording broadcast by a broadcasting organization whose headquarters is located in a country which is included in the Order as if the headquarters were situated in India or where the broadcast is transmitted from a transmitter situated in a country which is included in the Order as if such broadcast was transmitted from India
This section also empowers the International Copyright Order to apply Chapter VIII either fully or in part to the foreign broadcasts or performances; to generally or to classes of broadcasts or performances. The term of the rights of the broadcast organizations and performers in India should not, however, exceed the term of rights accorded by the country of origin of the foreign work, provided it does not exceed the period provided in the Copyright Act of 1957. The enjoyment of the rights under Chapter VIII shall be subject to the fulfilment of the formalities and conditions specified in the Order. Chapter VIII does not extend to any performances or broadcasts made before the commencement of the Order.
SECTION 41 – EXISTENCE OF COPYRIGHT THROUGHOUT INDIA
According to this section, copyright in a foreign work would exist throughout India where
(a) A (foreign) work is made or first published by or under the direction or control of any organization and
(b) There is no copyright in the work in India at the time of the first publication of the work and
(c) Either, the work is published in pursuance of an agreement in that behalf with the author where the agreement does not reserve to the author the copyright in the work (or) under section 17, which deals with the concept of First Owner of Copyright, any copyright in the work would belong to the organization.
Any international organization which at the material time did not have the legal capacity of a body corporate shall have and deemed at all material times to have had the legal capacity of a body corporate for the purpose of holding, dealing with, and enforcing copyright and in relation to all legal proceedings related to copyright. The organizations which come under this section are those organizations which are included in the International Copyright Order, 1999.
SECTION 42, 42A AND 43 – POWER OF CENTRAL GOVERNMENT TO RESTRICT THE RIGHTS OF FOREIGN WORKS
Section 42 empowers the Central Government to retract or restrict the rights of such foreign works, whose authors are not Indian and not domiciled in India, first published in India when it feels that the concerned country has not reciprocated the protection given by the Indian government by not giving adequate protection to the works of Indian authors.
This is an important provision in terms of diplomacy and international trade as protection is given to certain intellectual properties on a reciprocal basis. This provision serves as a safeguard to protect the interest of Indian authors and their works internationally.
Section 42A is similar to section 42 but applies to foreign broadcasting organizations and performers which are incorporated in such foreign country or are subjects or citizens of such foreign country and not domiciled in India.
Section 43 dictates that every Order made by the Central Government under Chapter VIII should be laid before both the Houses of the Parliament as soon as it is made, and shall be subject to the modifications the Parliament may make during that session or the session immediately following.
THE INTERNATIONAL COPYRIGHT ORDER, 1999
The International Copyright Order is an important piece of law concerning the copyright of foreign works. It was passed on 24th March 1999 and came to force on 6th April 1999. It was passed by the Central Government in the exercise of its power given in Section 40 of the Copyright Act, 1957. It was passed in supersession of its predecessor, the International Copyright Order of 1991.
The Order contains the conditions and formalities for foreign works and a schedule which is divided into six parts which list out the countries that are eligible for copyright protection in India. The countries which are parties to the
• Berne Convention, 1971
• Universal Copyright Convention, 1951
• Geneva Phonograms Convention, 1971
• Trade-Related Aspects of Intellectual Property Rights Agreement
that have either ratified, accepted or acceded to the above-mentioned Conventions or are yet to ratify, accept or accede to the above-mentioned Conventions are eligible to avail protection under the Copyright Act, 1957.
Copyright protection of foreign works in India is achieved through Chapter IX of the Copyright Act, 1957 and the International Copyright Order, 1999. Only the countries mentioned in the Schedule of the International Copyright Order, 1999 are eligible to avail the copyright protection and it is deemed to exist throughout the territory of India. This protection accorded by the Indian Government is dependent on the protection accorded by the concerned foreign country to the works of Indian authors. Hence the Copyright Act, 1957 empowers the Central Government to retract any protection or right extended to a foreign work if it is not satisfied that the country of origin of such foreign work has not taken enough steps to protect the works of Indian authors. The foreign works are treated as if they are Indian works. Also, the term of protection accorded in India shall be the same extended to Indian Works and should not exceed the term of protection accorded in the country of origin. This is in consonance with the Principle of National Treatment.
1. Section 13, Copyright Act 1957
2. Verkey, E. (2015). Intellectual property: law and practice (1st ed., Vol. 1). Lucknow: Eastern Book Company
3. Kumar, M. A., & Ali, M. I. (2008). Intellectual property rights. New Delhi: Serials Publications
4. Overview of TRIPS Agreement, retrieved from https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
7. Summary of Berne Convention, retrieved from https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
8. https://www.wipo.int/treaties/en/ip/phonograms/9. S.S. Rana & Co. (2018, April 3). Enforceability Of Foreign Country Registered / Unregistered Copyright. Retrieved from http://www.mondaq.com/india/x/688472/Copyright/Enforceability Of Foreign Country Registered Unregistered Copyright
Swetha hails from Tamil Nadu Dr Ambedkar Law University, Chennai and spends most of her leisure time gardening and writing poetry. Her Interest areas are International Law, Criminal Law and Human Rights. For any clarifications, feedback, and advice, you can reach us at firstname.lastname@example.org