Copyright and Neighbouring Rights

The Copyright Act 1957 (in force 21 January 1958) replaced the Indian Copyright Act 1914 (which extended the UK Copyright Act 1911). It has been amended in 1983, 1984, 1991, 1994, 1999 and, most importantly, in 2012 (in force 21 June 2012; the Copyright Rules 2013 followed). The Copyright Board was merged into the IPAB (2017) and, after the Tribunals Reforms Act 2021, its functions passed to the High Court / Commercial Court. A Registrar of Copyrights maintains the Register (Section 44, 45). Registration is optional; the certificate is prima facie evidence (Section 48). Copyright subsists automatically on creation (Berne principle).

Copyright protects expression, not ideas, procedures, methods of operation or mathematical concepts (idea–expression dichotomy: R.G. Anand v. Delux Films, 1978; the test of substantial similarity is how the ordinary observer/lay viewer sees the two works). Section 13 lists the classes of work in which copyright subsists:

1. Original literary, dramatic, musical and artistic works

2. Cinematograph films

3. Sound recordings

Key definitions (Section 2):

• Literary work (2(o)) includes computer programmes, tables and compilations including computer databases.

• Dramatic work (2(h)) includes recitation, choreographic work or entertainment in dumb show, scenic arrangement (the acting form); it does not include a cinematograph film.

• Musical work (2(p)): music and any graphical notation; it does not include words or action intended to be sung, spoken or performed with the music (lyrics are a separate literary work).

• Artistic work (2(c)): painting, sculpture, drawing (including diagram, map, chart or plan), engraving, photograph, work of architecture, and any other work of artistic craftsmanship; the artistic quality of the work is irrelevant for paintings/sculptures/drawings/engravings/photographs.

• Cinematograph film (2(f)): any work of visual recording on any medium, including a sound recording accompanying it, and any work produced by video or any similar process.

• Sound recording (2(xx)): recording of sounds from which sounds can be produced, regardless of the medium.

• Author (2(d)): literary/dramatic – the author; musical – the composer; artistic – the artist; photograph – the photographer; cinematograph film and sound recording – the producer; computer-generated work – the person who causes the work to be created.

• Communication to the public (2(ff)): making a work available to the public by any means of display or diffusion, other than by issuing copies.

Originality. India moved from the English "sweat of the brow" standard (University of London Press v. University Tutorial Press, 1916) to the "modicum of creativity" standard in Eastern Book Company v. D.B. Modak (2008, SC): copy-edited judgments and headnotes of law reports qualify only if the editorial inputs show a minimum degree of creativity and skill, not mere labour. The US analogue is Feist Publications v. Rural Telephone (1991). Photographs, translations, compilations and adaptations are protected as derivative works if original.

No copyright in: ideas, titles and slogans (generally, as insufficient), news facts, works of the Government that are statutory (but Government works carry copyright under Section 17(d)), and works not original. A "work" must also be fixed or expressed; copyright does not subsist in unpublished works of foreign authors unless the author is a qualified person (Section 13(2)–(3); International Copyright Order).

The author is the first owner (Section 17), subject to exceptions in the absence of a contrary agreement:

• Journalist employed by a newspaper/magazine under a contract of service: the proprietor owns copyright for publication in the paper, but the journalist keeps the right for book publication (Section 17(a)).

• Commissioned photographs, paintings, portraits, engravings (for valuable consideration): the commissioner (Section 17(b)); cinematograph film made for valuable consideration – the producer is the author under Section 2(d)(v).

• Employment (contract of service or apprenticeship): the employer (Section 17(c)); contract for service (independent contractor) leaves ownership with the contractor unless assigned.

• Government work: the Government (Section 17(d)); public undertaking (Section 17(dd)); international organisation (Section 17(e)); public lecture/address: the person delivering (Section 17(cc)).

• Authors of literary/musical works in a film: the 2012 proviso to Section 17 states that nothing in clauses (b) or (c) affects the right of the author in works incorporated in a cinematograph film, other than as part of the film. The producer cannot take over lyricists' and composers' separate rights.

Section 14 gives exclusive rights, which differ by class of work:

• Literary, dramatic, musical works: reproduce; issue copies to the public (not already in circulation); perform in public/communicate to the public; make a cinematograph film or sound recording; make translations and adaptations. For computer programmes, also sell or give on commercial rental.

• Artistic works: reproduce (including in 3D from 2D and vice versa); communicate; adapt; issue copies.

• Cinematograph films: make a copy (including a photograph of any image); sell/hire; communicate to the public.

• Sound recordings: make any other recording; sell/hire; communicate.

Moral rights (Section 57), Special rights of the author: independent of the author's economic rights and survive assignment. They comprise:

• Right of paternity: claim authorship of the work.

• Right of integrity: restrain or claim damages for any distortion, mutilation, modification or other act prejudicial to honour or reputation.

They can be enforced by the author or, after death, by the legal representatives. Cases: Amar Nath Sehgal v. Union of India (Delhi HC, 2005), destruction/neglect of a bronze mural at Vigyan Bhavan violated the integrity right, with relief granted; Mannu Bhandari v. Kala Vikas Pictures (Delhi HC, 1987), a film adaptation of a novel that mutilated it infringed integrity right (the right is not limited by the assignment). Performer's moral rights are in Section 38B (2012).

The term is computed from the beginning of the calendar year following the relevant event. India's life + 60 exceeds the Berne minimum of life + 50.

• Assignment (Sections 18–19): the owner may assign the existing or future copyright (a future work: assignment takes effect on coming into existence). The assignment must be in writing signed by the assignor, and identify the work, the rights assigned, the duration and the territorial extent. If duration is not stated, it is deemed 5 years; if territory is not stated, India; if the assignee does not exercise the rights within one year, the assignment is deemed to lapse (unless otherwise specified). The 2012 proviso: authors of literary and musical works in films cannot assign the right to receive royalties except to legal heirs or a copyright society.

• Licence (Sections 30–30A): the owner can grant exclusive or non-exclusive licences in writing. Licences are not assignments of ownership.

• Section 19A: disputes about assignment or licence (Copyright Board earlier; now the High Court under the 2021 Act).

• Compulsory licences: Section 31 (works withheld from the public), 31A (unpublished or orphan works; Indian works where author is dead/unknown/untraceable), 31B (for persons with disabilities, 2012), 31C (cover versions of sound recordings, after 5 years), Section 31D (statutory licence for broadcasting organisations for literary and musical works and sound recordings, on payment of royalty fixed by the Appellate Board / High Court). Tips Industries v. Wynk Music (Bombay HC, 2019) held that Section 31D covers radio and television broadcasts, not internet streaming; the point remains debated, following a DPIIT 2016 memorandum that extended it to internet broadcasting. Section 32 covers compulsory licence for translation.

• Copyright societies (Section 33–36A): associations of authors/owners that collect and distribute royalties: IPRS (Indian Performing Right Society, 1969, music composers/lyricists), PPL (Phonographic Performance Ltd), IRRO (Indian Reprographic Rights Organisation), ISRA (Indian Singers' Rights Association). Section 33: no person may carry on the business of issuing or granting licences in respect of a work without being registered/authorised as a copyright society.

Primary infringement (51(a)): a person infringes if, without a licence from the owner or the Registrar of Copyrights, he does anything the exclusive right to do which is conferred on the owner; or he permits for profit any place to be used for communication of the work to the public where such communication constitutes infringement (unless he was unaware and had no reasonable ground to believe it was infringement).

Secondary infringement (51(b)): making for sale or hire, selling or letting for hire, distributing for the purpose of trade, exhibiting in public by way of trade, or importing infringing copies (except two copies for private use, 2012).

Test of infringement: access plus substantial similarity of expression; the quantity and quality of what is taken are considered (R.G. Anand; Bobby Art International v. Om Pal Singh Hoon, SC 1996, "Bandit Queen"). Reproduction in a different medium is infringement. Authorising infringement is also an infringement (Super Cassette Industries v. Myspace, Delhi HC DB 2016: an intermediary with actual knowledge of infringing content may be liable; safe harbour under Section 79 IT Act is limited by Section 81 proviso).

Section 52 lists acts that are not infringement. Indian law uses the closed-list fair dealing model (unlike the open-ended US fair use). Main items:

• Fair dealing for private or personal use including research; criticism or review; reporting of current events and current affairs including lectures delivered in public (52(1)(a)). Not applicable to computer programmes (except as in (aa)). Cases: India TV Independent News Service v. Yashraj Films (Delhi HC 2013); Wiley Eastern v. Indian Institute of Management (Delhi HC 1996).

• Computer programmes: making backup copies, adaptation for the lawful use, observation/study/testing, and reverse engineering for interoperability (52(1)(aa)–(ad)).

• Transient or incidental storage for technological process, and for providing electronic links, access or integration, where not expressly prohibited by the right holder (52(1)(b)–(c), 2012).

• Judicial proceedings, reports of legislatures and committees; certified copies of public records.

• Educational: reproduction by a teacher or pupil in the course of instruction; as questions in an examination; performance in an educational institution (52(1)(i)–(j)). Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services (Delhi HC 2016), a single judge upheld photocopying of course packs for students as covered by Section 52(1)(i); the Division Bench (2017) set aside the order and remanded; the underlying issue remains in the exam-relevant discussion.

• Persons with disabilities (52(1)(zb)): conversion to accessible formats, aligned with the Marrakesh Treaty.

• Religious ceremonies and amateur club performances (52(1)(za), (z)), certain architectural works, public art in sites, and sound recording of literary/musical works under compulsory conditions (cover versions).

Civil remedies (Chapter XII, Section 55): injunction (including interim, Anton Piller order for search and seizure and Mareva-type orders, and John Doe orders for unknown infringers), damages, account of profits, delivery up of infringing copies and plates (Section 58). Innocent infringement: no damages where defendant proves he was unaware and had no reasonable ground to believe copyright subsisted (Section 55(2)), but injunction/account still available. Jurisdiction (Section 62(2)): suit may be filed where the plaintiff actually and voluntarily resides, carries on business or personally works for gain; see Indian Performing Right Society v. Sanjay Dalia (SC 2015). Section 60: relief against groundless threats of infringement proceedings.

Criminal remedies (Chapter XIII):

• Section 63: knowingly infringing or abetting: imprisonment 6 months to 3 years and fine ₹50,000 to ₹2 lakh.

• Section 63A: enhanced penalty on second or subsequent conviction: imprisonment 1 to 3 years and fine ₹1 lakh to ₹2 lakh.

• Section 63B: knowing use of an infringing copy of a computer programme: imprisonment 7 days to 3 years, fine ₹50,000 to ₹2 lakh.

• Section 65A: circumvention of technological protection measures: imprisonment up to 2 years and fine. Section 65B: tampering with rights management information: up to 2 years and fine.

• Section 64: police may seize infringing copies without a warrant (officer not below Sub-Inspector).

• Section 53: the Registrar may ban import of infringing copies (Customs Act).

Rights related to copyright, protecting those who interpret, record or broadcast works:

• Broadcast reproduction right (Section 37): every broadcasting organisation has this right: re-broadcast, record, reproduce or sell/hire the broadcast. Term 25 years.

• Performer's right (Section 38–38B): a performer (Section 2(qq) includes actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance) has exclusive rights to make a sound/visual recording, reproduce, broadcast and communicate the performance. Term 50 years. Section 38A(2): once a performer consents to incorporation of the performance in a cinematograph film, he may not object to its exploitation, but is entitled to royalties for other uses; Section 38B gives moral rights (paternity and integrity in respect of performance).

• Phonogram producers (sound recording producers) have rights under Section 13/14 as authors of sound recordings (60 years).

• Section 39: acts that do not infringe performers' and broadcasters' rights.

• Cases: Fortune Films International v. Dev Anand (Bombay HC, 1979) on performer's rights; the 2012 Act brought performers' royalties into the statute.

• Introduced performers' moral rights and made rights of performers and broadcasters TRIPS/WPPT-compliant.

• Authors' right to royalties in films (non-assignable except to heirs/copyright societies).

• Section 31B, 52(1)(zb) for persons with disabilities; Section 31D (statutory licence for broadcasting); Section 31C (cover versions).

• Sections 65A and 65B on TPMs and RMI; ISP/transient storage exceptions in Section 52(1)(b)–(c).

• Sections 19(4)–(10): clear time/territory defaults and the one-year non-exercise rule.

• Section 33: copyright societies regulated, with owners' governance rights.

• Generative AI and copyright: ANI Media v. OpenAI (Delhi HC, filed 2024) on whether training on news content infringes; DPIIT expert committee working papers on AI training and licensing (2025) – verify current status. The Act has no "text and data mining" exception.

• Authorship of AI works: under Section 2(d)(vi) the author of a computer-generated work is the person who causes it to be created; the Copyright Office's registration of an AI co-authored work (RAGHAV) and its withdrawal remain a discussion point.

• Dynamic injunctions and website blocking for piracy: UTV Software Communication v. 1337X.to (Delhi HC 2019) allowed injunctions extending to mirror/redirect websites; Star India v. Moviemaza continues the line.

• Personality rights and voice cloning: Delhi and Bombay High Courts (e.g. Anil Kapoor v. Simply Life India, 2023; Arijit Singh v. Codible Ventures, Bombay HC 2024) granted injunctions against AI voice/image misuse.

• Statutory licensing for internet broadcasting and OTT royalties for lyricists remain contested.

Quick facts for revision (Section 4). Act: 1957; big amendment 2012. Term: life + 60; films/sound recordings/photographs 60; broadcast reproduction 25; performers 50. Default assignment: 5 years, India, lapse after 1 year of non-exercise. Moral rights: Section 57. Infringement: Section 51; fair dealing: Section 52; criminal: Sections 63–63B (6 months–3 yrs / ₹50,000–₹2 lakh). Orphan works licence: 31A. Disability: 31B / 52(1)(zb). Jurisdiction: 62(2). Copyright societies: 33–36.