1. Copyright Subsistence
1.1 What are the requirements for copyright to subsist in a work?
The first and foremost requirement is “originality”. The word “original” is not defined in the Copyright Act, 1957 (the Act), but has derived its connotation through case laws. It is largely understood as a work that “owes its origin to the author”; the work must originate from the skill and labour of the author and must not be a copy of any other work. Another prerequisite of copyright protection is the fixation of work in a tangible form. The Indian regime follows the fundamental rule of copyright law laid down in Article 9(2) of Trade Related Intellectual Property Rights (TRIPs) and Article 2 of WCT, 1996, that copyright does not subsist in ideas and only protects the original expression of the ideas.
1.2 Does your jurisdiction operate an open or closed list of works that can qualify for copyright protection?
The category of works that qualify for copyright protection is a closed and exhaustive list of categories, encompassing original literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings. However, the definition of some of these categories is inclusive. No straightforward definition is given for literary works under the Act, and it merely states that a literary work includes computer programs, tables and compilations, including computer databases. Similarly, dramatic works include any piece of recitation, choreographic work, or entertainment in a dumb show, as well as the scenic arrangement or acting form, which is fixed in writing or otherwise. Artistic works are also defined in inclusive terms and state that they mean a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, a work of architecture and any other work of artistic craftsmanship.
Furthermore, cinematograph film means any work of visual recording and includes a sound recording accompanying such visual recording. The word ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography, including video films. Musical works mean a work consisting of music and includes any graphical notation of such work but does not include any words or action intended to be sung, spoken or performed with the music. Sound recordings are the recordings of sounds from which such sounds may be produced, regardless of the medium or method by which such recordings are produced. So, while the list of qualifying works is closed, the definitions within each category are designed to be broad and inclusive, adapting to evolving forms of creativity and expression.
1.3 In what works can copyright subsist?
Copyright subsists in the following categories of works:
- Original literary, dramatic, musical and artistic works.
- Cinematograph films.
- Sound recordings.
It is important to highlight that the word “original” is prefixed to literary, dramatic, musical and artistic works and not to cinematograph films and sound recordings, as the latter are works made using the former categories of works. For example, a cinematograph film is made using a script, which is a dramatic work. Though there is no express stipulation regarding “originality” with respect to cinematograph films and sound recordings, copyright does not subsist in a cinematograph film if a substantial part of that film is an infringement of the copyright of any other work. Likewise, copyright does not subsist in a sound recording made with respect to a literary, dramatic or musical work if, in making the sound recording, copyright in such work has been infringed.
1.4 Are there any works which are excluded from copyright protection?
Copyright law does not protect ideas. Copyright only exists in the material form in which the ideas are expressed. Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Natural or historical events are also not copyrightable per se. However, the specific manner in which these events are depicted or presented may render them copyrightable. Judicial pronouncements are not subject to copyright as they are part of the public domain. However, headnotes or editorial notes of judgments are considered original literary works protected under the Act. A cinematograph film does not enjoy copyright protection if a significant portion infringes upon another work’s copyright. Similarly, copyright doesn’t apply to sound recordings made from literary, dramatic, or musical works if the recording violates the copyright of the original work. Regarding architecture, copyright covers only the artistic aspects and design, excluding construction methods or processes.
1.5 Is there a system for registration of copyright and, if so, what is the effect of registration?
Acquisition of copyright is automatic, and the right comes into existence as soon as the work is created. However, securing a formal registration is advisable for enforcement purposes because the registration certificate acts as prima facie evidence of ownership of copyright. The author/publisher/owner, or any other person interested in the copyright registration of any work, may make an application to the Registrar of Copyrights for entering particulars of that work in the Register of Copyrights. In the case of an artistic work which is used or is capable of being used in relation to any goods or services, the application must also include a statement that no trademark that is identical/deceptively similar to the said artistic work has been applied for registration or is registered under the Trade Marks Act in the name of any person other than the Applicant. This statement must also be corroborated by a certificate from the Registrar of Trade Marks.
After filing the application, a waiting period of 30 days is observed for any third-party objections that may come up against the copyright application. In case of no third-party objection, the application goes ahead for scrutinisation by the Examiner. In case of any discrepancy, a letter is sent to the Applicant for compliance and must be returned within 30 days. Based on the reply of the Applicant, the Registrar may allow the application to proceed to registration or may conduct a hearing if they are not satisfied with the response. If no discrepancy letter is issued, the application proceeds straight to registration.
Effect of registration:
The Register of Copyrights is prima facie evidence of the particulars entered therein. The 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 are admissible as evidence in all courts without further proof or production of the original.
1.6 What is the duration of copyright protection? Does this vary depending on the type of work?
The duration of copyright protection varies depending on the type of work. The term of protection for different kinds of works is as follows:
- Literary, dramatic, musical and artistic works – life of the author plus 60 years from the beginning of the calendar year, which follows the year in which the author dies.
- Cinematograph films – 60 years from the beginning of the calendar year, which follows the year in which the cinematograph film was published.
- Sound recording – 60 years from the beginning of the calendar year which follows the year in which the sound recording was published.
1.7 Is there any overlap between copyright and other intellectual property rights such as design rights and database rights?
India does not allow parallel protection and statutorily clarifies that copyright does not subsist in any design which has been registered under the Designs Act, 2000. Furthermore, though unregistered designs are protected under the realm of copyright law, copyright in any unregistered design that is capable of being registered under the Designs Act will cease to exist if the article to which the design has been applied is reproduced more than 50 times by an industrial process by the owner of the copyright or, under his licence, by any other person.
There is also an overlap with respect to the protection of artistic works between copyright law and trademark law. The artistic work that is used or capable of being used in relation to any goods or services can be protected both under trademark and copyright laws.
The definition of “literary work” includes computer programs, tables and compilations including computer databases. Thus, databases are protected under copyright law as literary work. However, to obtain copyright protection for tables, compilations and computer databases, the work must exhibit some creativity or originality in the selection or arrangement of the contents of the work. If the labour and skill required to make the selection and to compile the work that forms its content is negligible, then no copyright can subsist in it.
1.8 Are there any restrictions on the protection for copyright works which are made by an industrial process?
Copyright of any unregistered design which is capable of being registered as an industrial design will cease to exist if the article to which the design has been applied is reproduced more than 50 times by an industrial process by the owner of the copyright or, under his licence, by any other person.
