Copyright AND Literary Works Author By: Megha Hurkat | Volume II Issue II |

Abstract

Copyright is a part of Intellectual property Rights that protects the original work of the author. These laws are codified under the Copyright Act, 1957. Copyright is granted for 60 years from publication and lifetime ownership to the owner. This article deals with copyright and the use of copyright in literary works. It discusses the history of how the Copyright Act, 1957 came into force. Earlier computer programs were not included in literary works. This article gives a brief about how computer programs were included in it. It covers everything that can be copyrighted under a literary category like books, novels, concept notes, almanac, dictionary, directories, lyrics, etc. Government works and judicial reports, foreign works and exceptions to it. The main focus of the article is the subject matter under literary works and how can these works be registered for copyright protection. This article has been written by studying various sources from the internet.

COPYRIGHT AND LITERARY WORKS

In this tech world, Intellectual property enhances almost every aspect of human lives. In our daily lives, we come in contact with products protected with IP. Intellectual property rights reward innovators for their ideas. Eg. From a better glass of mojito to a more energy-efficient cooler, from a knitted piece of cloth to a more efficient car. It influences the world in a variety of ways. We always seek new, innovative, Qualitative and efficient products. To protect the original works of the authorship or innovator IP rights are granted which are mainly of 3 types: 1) Trademark 2) Patent 3) Copyright

This article will focus on copyright.

Copyright (or author’s right) is a legal term used to describe the rights that the creator has over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings.[1] It is granted for 60 years from the publication and lifetime ownership to the owner.

It protects the original work of the author however ideas cannot be protected thus can’t be copyrighted. So, it can be said that copyright is the guardian of imagination.

1. COPYRIGHT TREATIES AND CONVENTIONS[2]

 

• Berne Convention for the Protection of Literary and Artistic Works. It which was first accepted in 1886, and has been revised many times. Some notable revisions took place at Berlin (1908); Rome (1928); Brussels(1948); Stockholm (1967); and Paris (1971).
• Free Trade Agreement – The FTAs contain chapters on intellectual property rights, which include substantive copyright law and enforcement obligations.
• Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Geneva, 1971.
• Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, Brussels, 1974.
• Universal Copyright Convention at Geneva, 1952 which was revised at Paris in 1971.
• World Intellectual Property Organization (WIPO) Copyright Treaty, Geneva, 1996. The effective date for the United States is March 6, 2002, the date the treaty entered into force.
• WIPO Performances and Phonograms Treaty, Geneva, 1996.
• The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is one of the WTO agreements. It includes some rules and obligations for the protection of copyright and other intellectual property rights as well as their enforcement.
• GATT 1994(including the Agreement on Trade-Related Aspects of Intellectual Property)

1. COPYRIGHT NEEDS AND USE IN DAILY LIVES

 

Almost everything that we come across from a magazine to music, from a painting to a mobile phone, from a notebook to a new dish recipe, nearly everything was imagined and created by someone. Now the question that arises in mind is that why should copyright be granted? Let’s take the example of an artist who paints beautiful paintings. He comes up with a brilliant idea and after his 10 days of hard work, painting is ready and liked by everyone. Now a photographer clicks a picture of the painting and starts mass-producing prints, then the original artist will not be able to make his living. Here comes the law of copyright.

III. BRIEF HISTORY OF COPYRIGHT LAW IN INDIA

The evolution of Copyright Law in India can be divided into three phases.

The first phase was the initial introduction of copyright law during the British reign via the British Copyright Act, 1911. The provisions of this act were very much different as compared to today’s act. Some of its features were:

1. Lifetime term of copyright of the author and seven years after the death.
2. The total term cannot exceed forty-two years.
3. The government had the power to grant a compulsory license for the publication of a book upon the death of the owner, refused to publish.
4. It was mandatory to register the copyright with the Home Office.

The second phase started in 1914, when the Copyright Act, 1914 was enacted by the Indian legislature under British Raj

It was similar to the British Copyright Act of 1911. But the only major change was the introduction of a criminal element for infringement. The Act of 1914 was constantly amended many times.

The third phase is the present copyright law that is the Indian Copyright Act, 1957 which suits the provisions of Berne convention. This Act was enacted by Independent India and we are governed by this act to date.

First owner of the copyright is the author or creator. An exception to this rule is that the employer becomes the owner of the copyright in circumstances where the employee creates a work in the course of and scope of employment.

1. COPYRIGHT IN LITERARY WORKS

Literary work includes the novel, poems, plays, reference works, newspaper articles, computer programs, databases, etc.

• Computer programs in copyright

As Indian Copyright Act, 1957 is the counterpart of British act, it did not have any provision which grants protection to computer software but later the need of giving copyright protection to software was recognized and the United States was the first country which recognized that the computer databases as literary work[3] and represent an increasingly significant and valuable form of intellectual property, which the 1976 House Report specifically declared to be copyrightable as ‘literary works’.[4]  The US realized that the cost of developing or creating software is much more than the cost involved in duplicating it. Therefore, the programs will only be disseminated when the creator can recover all his costs of a program and some profit. As a result of this recognition, the Copyright Act was amended in 1983 to give protection and included it in literary works. India played an important role in the Paris Revision of Berne Convention in 1971. The Act states that copyright subsists in original literary work,[5] Irrespective of the quality, style or literary merit, a work may be considered as literary, if it is expressed in print or writing or some form of notation or symbols. A literary work is something which is intended to afford either information or instruction, in the form of literary enjoyment and Section 2(o) of the Act provides that- “literary work” includes computer programs, tables, and compilations including computer databases.” [6]

 

1. COPYRIGHTABLE SUBJECT MATTER

 

This part discusses and lists down the works/content, (including but not limited to) that may qualify as a copyrightable subject matter and may be eligible for registration by the owner under the Copyright Act.

• BOOKS (includes e-books also)

Under the Copyright Act, 1957, it appears that under sections 13 and 45, the registration of books with the registrar of Copyrights is a condition for acquiring copyright concerning it. Books written, in print or any digital form may be protected either in individual or joint authorship (in case the work is created by two or more persons).[7]

• NOVELS and STORY

 Novels and stories are also a subject matter for copyright protection if these are fixed in written or in print or any other digital form. In Penguin Random House v. Colting, the case was decided in favor of the authors and publishers holding the series of children’s books that contained a condensed version of plots of American Novels.

• SONG LYRICS

The lyrics of songs can be protected under literary works and, therefore, these are      copyrightable.

• COMIC BOOKS

A comic book is a pictorial depiction of the story in different frames. These may or may not be followed by words, dialogues, etc. The whole comic can’t be protected. Only the literal element can be protected under the literary category and the applicant should submit a declaration stating that he is applying for copyright registration for the literal element only. But in case the applicant wants copyright in the images, then, the applicant will have to submit a separate application for each image with the prescribed fee, under the artistic category.

• CONCEPT NOTE

The concept note is eligible for copyright protection if it is definitive rather than just an idea and there’s an expression which is reduced in writing. The Delhi High Court held that an idea has no copyright. But if that idea is developed into a concept note fledged with necessary details, then it becomes eligible for registration under copyright.[8]

• LETTERS

 Letters are protected under copyright law if they are original. It is important to note that generic letters are not entitled to registration.

• LECTURES

According to section 2(n) of the act, the lecture includes address, sermon, and speech. These can be protected under a literary category, only if these are reduced in writing or any digital form.

• POEM

 A single poem or a book of poems will fall under the literary category if the poem is completely new and not copied.

• TABLES

Tables are copyrightable by Section 2(o) of the act which provides that literary works include tables also.

• COMMENTARIES

Commentaries can be copyrighted as it includes the exercise of coming up with a unique judgment. As the knowledge about a single topic is too vast and hard to grasp so the author has to put in special and sufficient efforts to explain briefly it through examples, points, justifications, etc.

• COMPILATIONS

As per Cambridge dictionary to ‘compile’ is “to collect information from different places and arrange it in a book, report or list.” As per the Oxford dictionary, ‘compilation’ is “The action or process of producing something, especially a list or book, by assembling information collected from other sources.” 

Relying on the Latin maxim expressio unius est exclusio alterius, it can easily be concluded that a compilation under the definition of literary works excludes the artistic compilations. So, the compilation of photographs/pictorial images won’t qualify to be registered under the literary category.

• DIRECTORIES and DICTIONARIES

These are allowed to be registered as compilations under the literary category. These are original as it requires a lot of efforts to collect and compile the data which in its entirety takes sufficient exercise of skill and judgment by the author. Encyclopedia can also be included in this.

• RESEARCH PAPERS or DISSERTATION

These are considered as original literary works thus are allowed for registration. In such cases, NOC from any institution under whose control the work has been created has to be submitted in original.

• WEBSITE CONTENT

The literary element of the website is capable of registration under the literary category.

• ALMANAC

In L. R. Ramnarayan and Sons versus Commissioner of Central Excise & Service Tax, Bhopal (AIR 2016) it was observed that a Panchang (Almanac) displays information regarding tithi, nakshatra, etc., substantially rather than just providing general mentioned on a calendar. It was also observed that Almanac cannot be categorized as ‘calendars’ because less than 50% of the page space displays the date sequence of the calendar month. In Khemraj Shrikrishandas vs Garg & Co. and Anr.[9] , it was observed that copyright exists in Panchang. 

• TICKETS

In Rai Toys Industries v. Munir Printing Press[10], the ticket used in the game of tombola is entitled to copyright as it involves, a form of tables [section 2(o)] of numbers requiring an investment of skill, labour, and originality in preparation. 

• QUESTIONNAIRE AND QUESTION PAPERS

School or any institution papers are protected under copyright laws[11]

• BROCHURE/ CATALOGUE/ PAMPHLET

The dictionary meaning of Catalogue — “it is a complete list of items, typically one in alphabetical or other systematic order”. Pamphlet — “a small booklet or leaflet containing information or arguments about a single subject”. Brochure — “a small book or magazine containing pictures and information about a product or service”.

If we understand the definition properly, it becomes quite clear that these works can be covered under the literary category. It can also be a mixture of literary and artistic work if it fulfills the prerequisites of the conditions of protection and registration. If yes, then the applicant has to submit a separate application for each image and pay registration accordingly. 

• TRANSLATION

These may be protected under literary category only if it is original and the author has put in efforts in labor, skill, and judgment. If the original work still exists, written consent has to be taken from For registration, if the copyright in the original work still exists, written consent or a license from the copyright owner of the original work is to be submitted.

• Selection and Arrangement

In Express Newspapers v. News[12] it was held that a reporters’ interview lasting over eight hours, the selection of quotations involves efficient skills and judgment of the reporter and this enabled him to acquire copyright.

• ACTIVITY BOOKS

Activity books may be subject to copyright registration, provided that the content/ work qualifies the protection and registration prerequisites.

 

1. GOVERNMENT WORK

 “Government work”,according to section 2(k) means a work which is made or published by or under the direction or control of (i) the Government or any department of the Government (ii) any legislature in India or (iii) any Court, Tribunal or other judicial authority in India.[13] Any work, which is a subject matter of the said definition, will be treated as a “Government work” and will be eligible for copyright registration only if the Government itself seeks for registration or the applicant has been granted authorization from the said Government department or the owner of work.

In Eastern Book Company v. Navin J. Desai[14] there was a question that whether the reporting of the judgment of a court is protected under the copyright or not. The Delhi HC held that although under section 2(k) of the act, a work made or published under direction or control of the court, tribunal or any other judicial authority is government work. But as per section 52(q) of the Act, the republication or production of any such work does not constitute an infringement of copyright.

VII.FOREIGN WORKS

For purposes of copyright registration, the term “foreign works” generally refers to works created by the author(s) who are not citizens of India and/or works that were first published abroad. In the case of unpublished works, the author was on the date of making of work, not a citizen or not domiciled in India. The foreign works are accorded the same treatment as if they were Indian work, as provided under Chapter IX of the Act and can be registered with the Copyright Office of India, if the work qualifies the prerequisites for the registration and protection as mention in Indian copyright Law.

VIII. EXCEPTIONS

In India, the provisions of Section 52 of the Copyright Act, 1957 provides certain acts, which do not constitute an infringement of copyright namely fair dealing for:

• private use, including research;
• criticism or review,
• reporting current events in  any media
• by broadcast or in a cinematographic film or through photographs,
• the recitation in public of any extract which has been published in the form of  a literary or dramatic work;
• the publication in a collection, with bona fide intention for the use of educational institutions,

 

 “two points have been urged in connection with the meaning of the expression fair,

(1) that there must be an intention to compete and to derive profit from such competition and

(2) unless the motive of the infringer was unfair in the sense of being improper the dealing would be fair.”[15]

 

CONCLUSION

 The article deals with the laws of copyright on literary works and its exceptions also. It can be understood that the need for copyright becomes important when people start doing innovative things like making machines, writing books, composing music, etc. It was boon for society when a computer program was protected under copyright. The government works and judicial proceedings are also protected. This article is limited to literary works only. The treaties and convention helped in more development of copyright. One of the main convention i.e. Berne Convection conducted by WIPO member nations which gave rights to people to protect their works. But the copyright violations is killing media in recent days. Do you think that there’s a need for making more stringent rules for copyright infringement? 

 

[1] https://www.wipo.int

[2] https://www.copyright.gov

[3] Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240

[4] The House Report on the 1976 Act

[5] Indian Copyright Act, 1957 section 13(1)(a)

[6] Exxon Corp v Exxon Insurance Consultants International Ltd (1981) 125 S.J. 527

[7] Macmillan and Co. v. K and J Cooper (1924) 26 BOMLR 292

[8] Anil Gupta v. Kunaldas Gupta and ors (2002) 97 DLT 257 (India)

[9] AIR 1975 Del 130 (India)

[10] 1982 PTC 85 (India)

[11] Agarwala Publishing House v. Board of High School and Intermediate Education and Anr. AIR 1967 All 91 (India)

[12] (1990) 3 All ER 376

[13] The Copyright Act, 1957 section 2(k) (India)

[14] Eastern Book Company v. Navin J. Desai AIR 2001 (58) DRJ 103

[15] Kartar Singh Giani v. Ladha Singh AIR 1934 Lahore 777 (India)