Intellectual property rights presentation

IPR

1. Topic 1.3: Subject Matter of Copyright, Economic and Moral Rights (ss2,13 &14) Text Book Title: Law Relating to Intellectual Property Law, Lexis Nexis, Third edition (18 July 2017) Author: V.K. Ahuja Name of Chapter: Subject Matter of Copyright

2. 1.3 SUBJECT MATTER OF COPYRIGHTS Classes of work in which Copyright subsists (Section 13) Copyright shall subsist throughout India in the following classes of works, that is to say,— original literary, dramatic, musical and artistic works; cinematograph films; and sound recording

3. Conditions for protection: ( i ) in the case of a published work , the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of work of architecture , the work is located in India.

4. Original Literary works- Section 2(o) 2(o) “literary work” includes computer programmes , tables and compilations including computer databases For copyright protection, all literary works have to be original as per Section 13 of the Act. Broadly speaking, there would be two classes of literary works: (a)  Primary or prior works : These are the literary works not based on existing subject-matter and, therefore, would be called primary or prior works; and (b)  Secondary or derivative works : These are literary works based on existing subject-matter. Since such works are based on existing subject-matter, they are called derivative work or secondary work. Originality in expression and not in idea. Since literary, expression of thought in print or writing.

5. Test of Originality Macmillan v. Cooper, AIR 1924 PC 75 “ Author must have bestowed upon work sufficient judgment, skill, labour or capital” Eastern Book Co. v. Navin J. Desai, AIR 2001 Del 185 No copyright in judgments and they are in public domain once published. In respect of Head-notes, court was of the opinion that copyright protection can be extended if one can show that there exists sufficient originality and intellect.

6. Copyright does not subsist in idea, principles, concepts etc. subsists only in material form: The idea-expression dichotomy was formulated to ensure that the manifestation of an idea (i.e. an expression) is protected rather than the idea itself. Donoghue v. Allied Newspaper Ltd, (1937) 3 ALL ER 503 Idea however brilliant and however clever it may be, is nothing more than an idea. Najma Heptulla v. M/s. Orient Longman Ltd. , AIR 1989 Del 63 Both subject matter and language are important. If there is intellectual contribution by two or more person pursuant to a pre-conceived joint design to the composition of literary work then those persons have to be regarded as a joint authors .

7. RG Anand v. Delux Films, AIR 1978 SC 1613 No copy right in abstract idea, themes or plots of literary work or films The plaintiff was the author of a play called Hum Hindustani . In 1954, the defendant Mohan Sehgal sent a letter to the plaintiff expressing his desire to make a movie based on the play. The plaintiff and the defendant met and discussed the entire play. The defendant did not commit anything, but the plaintiff later came to know that the defendant released a movie titled New Delhi .

8. After watching the movie, the plaintiff was of the opinion that it is based on the story of his play. So he filed a suit against the defendant for permanent injunction and damages. Both the District Court and the High Court ruled against the plaintiff on a finding of the facts. The case finally reached the Supreme Court of India. The Supreme Court held that the movie cannot be considered to be an infringement of the script of the play. The reason it gave was that though the idea behind both the stories was the same, the manner in which both had been expressed were vastly different from each other. Therefore it cannot be held to be copyright infringement.

9. Anil Gupta v. Kunal Das Gupta, 2002(25) PTC (Del) – Copyright in concept T he Delhi High Court found that Sony Entertainment Television had misappropriated confidential information provided to it by one Mr. Anil Gupta and created a new tv show based on the said information. Mr. Anil Gupta was a media consultant who came up with an idea for a television programme titled ‘ Swayamvar ’ and provided written notes, oral presentations describing the format to the company using which the created their own show “ Shubh Vivaah ”.

10. Mr. Anil Gupta started proceedings restraining Sony TV from airing the show. The Court held in favour of Mr. Gupta and stated that: Ideas, concepts and programme themes are raw materials for the entertainment industry and their protection is vital. When an idea is developed to a stage where it is actualized then the concept is capable of being a subject of ‘confidential information”.

11. Sweat of Brow Doctrine According to this doctrine, an author gains rights through simple diligence during the creation of a work. Substantial creativity or “originality” is not required. The creator is entitled to such rights on account of efforts and expense put in by him in the creation of such a work. For Example , the creator of a telephone directory must have a copyright over the product not because such a compilation of data showcases any creativity, or the author has expressed anything original, but merely because of the effort, time and money invested by the creator to collect and organise all the data in a specific manner.

12. Position in U.S, U.K & INDIA The United States rejected this doctrine in the 1991. US Supreme Court case  Feist Publications v. Rural Telephone Service, 499 U.S. 340 Under the  Feist  ruling in the US, mere collections of facts are considered unoriginal and thus not protected by copyright, no matter how much work went into collating them. The arrangement and presentation of a collection may be original, but not if it is "simple and obvious" such as a list in alphabetical or chronological order.

13. In U.K, this doctrine “sweat of the brow” was used in  Walter v. Lane,1900 AC 539 where the Court said that it is immaterial whether work is wise or foolish, accurate or inaccurate, or whether it has or does not any literary merit. The case reiterated the requirement of ‘ labour , skill and judgment’ and the requirement of originality is limited to the extent that the work originated from the author. University of London Press v. University Tutorial Press, [1916] 2 Ch. 601 The Court held that the Copyright Act does not require that expression be in an original or novel form. It does, however, require that the work not be copied from another work. It must originate from the author. The question papers are original within the meaning of copyright laws as they were originated from the authors .

14. In India - Eastern Book Company v. DB Modhak , 2008 (36) PTC 1 (SC) The notion of  “ flavour of minimum requirement of creativity ” was introduced in this case. It was held that to establish copyright, the creativity standard applied is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. The Court held that these inputs made by the editors of SCC can be given copyright protection because such tasks require the use of legal knowledge, skill and judgement of the editor. Thus, this exercise and creation thereof has a flavour of minimum amount of creativity and enjoy the copyright protection.

15. Computer Programme - Section 2( ffc ) “computer programme ” means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result; In  Tata Consultancy Services v. State of Andhra Pradesh, 271 ITR 401 (2004) , the Supreme Court considered computer software is intellectual property

16. Dramatic works – Section 2(h) “dramatic work” includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film; Inclusive definition, not exhaustive

17. Original Musical works – Section 2(p) musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music

18. Original Artistic works - Section 2(c) artistic work” means— ( i ) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship

19. Cinematograph films- Section 2(f) “cinematograph film” means any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films. Sound recordings – Section 2(x) sound recording” means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced

20. Whose rights are protected? (Section 2(d) and 17) Copyright protects the right of Author, i.e. creator of Intellectual Properties. -  He/She is also called the First Owner of Copyright . WORK CREATOR OF THE WORK Literary or dramatic work Author Musical work Composer Artistic work Artist Photograph person taking the photograph Cinematograph Film or Sound Recording Producer Any literary, dramatic, musical or artistic- computer-generated person who causes the work to be created

21. Term of copyright Generally copyright lasts for Life + 60 years in India. Work Term Original literary, dramatic, musical and artistic works 60-year from the year following the death of the author. In case of joint authorship, the date has reference to author who dies last. Posthumous Work 60 years from date of demise of the owner Anonymous and pseudonymous publications 60 years from the beginning of the calendar year following the year of publication Photographs 60 years from the beginning of the calendar year following the year in which the photograph is published Cinematographic film 60 year from the post calendar year of the release of the Film

22. Joint Authorship – The leading case of joint authorship in India is Najma Heptulla v. Orient Longman Ltd. and Ors , AIR 1989 Del 63 In this case, the plaintiff is the legal heir of the author of the book India Wins Freedom . The defendant is the publisher of said book. The defendant entered into an agreement with one Prof. Humayun Kabir to make contents of the book known to the public. The plaintiff obtained an injunction restraining defendants from breaking seals of covers of the complete

23. book India Wins Freedom and from making its contents known to the public. According to the preface to the said book written by Kabir, Maulana Azad used to describe his experiences in Urdu, on the basis of which a draft in English would be prepared by Kabir. The court held that active and close intellectual collaboration and cooperation between Maulana Azad implied that Kabir is a joint author of the book with Maulana Azad. Hence, the defendants were allowed to break the seals of the covers of the complete book India Wins Freedom and make its contents known to the public.

24. CONTRACT OF SERVICE & CONTRACT FOR SERVICE University of London Press v. University Tutorial Press (1916) 2 Ch. 601 In the case of a work made in the course of the author's employment under a contract of service or apprenticeship, the employer shall be the first owner of the copyright Diljeet Titus v. Alfred A. Adebare , 2006 (32) PTC 609 (Del) , the defendant, an advocate, was working at the plaintiff’s law firm. On termination of employment, the defendant took away important confidential business data, such as client lists and proprietary drafts, belonging to the plaintiff.

25. The defendants contended that, they were the owners of the copyright work as it was done by them during their employment since the relation between parties was not that of an employer and employee. The Delhi High Court rejected this contention and ruled that the plaintiff had a clear right in the material taken away by the defendant. Accordingly, the Delhi High Court restrained the defendant from using the information taken away illegally. Court did not prohibit the defendants from carrying on a similar service. The defendants were only restrained from using the information they took, as this was necessary to protect the interests of the plaintiff.

26. - COMMISIONED WORK Gee Pee Film Pvt Ltd v. Pratik Chowdhury & Others , (2002) 24 PTC 392 In the case of the Government work , Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

27. Author Composer Artist person taking the photograph Producer person who causes the work to be created