Hisotyr & Subject Matter Of Copyright

CHAPTER 1

History & Subject Matter Of Copyright History of Copyright Law

UK: Copyright was not invented until after the advent of the printing press and with wider public literacy. As a legal concept, its origins in Britain were from a reaction to printers’ monopolies at the beginning of the 18th century. In Britain the King was concerned by the unfair copying of books and used the royal prerogative to pass the Licensing Act of 1662 which established a register of licensed books and required a copy to be deposited with Stationers 1

Company, essentially continuing the licensing of material that had long been in effect. The Statute of Anne was the first real Copyright Act, 1709. the full tile of the statute was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”. It gave the author sole right and liberty of printing their work for a fixed period, i.e., in case of published work, 21 years from the date of publication and in case of unpublished work 14 years. It was made for the encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies.

The rights under the

statute were neither restricted to British subjects nor to books printed in the United Kingdom. In Donaldson Vs. Beckett, (1774) 4 Burr 2408, the House of Lords held: 1.

that at common law an author of any literary work had the exclusive

right of first printing and publishing that work in perpetuity. 2.

that once the work was published, however, the common law right

was extinguished and he could only bring an action on the terms and conditions of the statute of 1709. There were territorial loopholes in the 1710 Act. It did not extend to all British territories but only covered England, Scotland and Wales. In other British territories the books were available at cheaper rates.

Between

1710-1774, there was legal debate about the lacunae in the 1710 Act.

In

1775, an Act was passed to enable the universities to hold, in perpetuity, their copyright in books given or bequeathed to them “for the advancement of useful learning and other purposes of education”. The printing of uncopyrighted English works for the English-language market also occurred in other European Countries. The British government 2

responded to this problem in two ways:

1. It amended its own copyright

statutes in 1842, explicitly forbidding import of any foreign reprint of British copyrighted work into the UK or its colonies, and 2. It began the process of reciprocal agreements with other counties.

It extended the period of

copyright to the life of the author and 7 years after his death, or for 42 years, whichever happened to be the longer. The basic philosophy was that the fruits of a man’s creative labour should be protected, so far as profitable exploitation was concerned. It remained in force until it was repealed by the Copyright Act, 1911. The Copyright Act, 1911 codified and consolidated the various earlier Copyright Acts on different works. It also abolished Common Law Copyright and introduced a term of life of the author plus 50 years. Further it abolished the need for registration of copyright as a prerequisite for claiming right or for enforcement of copyright. The Copyright Act, 1956 was the successor to this Act till recently. A Committee appointed under the Chairmanship of Justice Whitford to review the existing law on Copyright and Designs has made in its report (1977) various recommendations for amendment of the law. Subsequently on the basis of various reports the Copyright, Designs and Patents Act, 1988 was passed which introduced substantial changes in the copyright law of England.

US: In US the first Copyright Act was passed in 1790 which contained most of the principles in English law. But foreign authors were not protected. This has been commented as : “complete with the piracy provision it can be viewed as the action of a developing country to protect its burgeoning culture while exploiting the cultural products of more developed nations”. The situation 3

was remedied by the Copyright Act of 1891. The present American law is contained in the Act of 1976 which is considered as the most major copyright law in the world dealing with most of the problems in copyright legislation resulting from the progress of technology.

The U.S.law has a registration

system for copyright.

INDIA: In India, the Government of India considered that the early introduction of an Act into India was derisable both for Imeperial and International, as well as domestic reasons. Ultimately, Act III of 1914, was passed to modify and add to the provisions of the Copyright Act, 1911, which extended to the whole of British India. The next Act which is the current statute, was the Copyright Act, 1957 which adopted many of the principles and provisions contained in the UK Act, of 1956, but which also introduced many new provisions.

Meaning and Definition of Copyright:

The word ‘copy’ is presumed to use in 1485 to connote a manuscript or other matter prepared for printing.

“Copyright” is derived from ‘copier of

words’ first used in “Oxford Dictionary” in 1586. According to Black’s Law Dictionary, “copy” means transcript, imitation, reproduction of an original writing, painting etc., Copyright is the term used in English-speaking countries to describe the bundle of rights that are granted by statute, for limited periods of time and

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subject to certain permitted exceptions, in respect of original literary, dramatic, musical or artistic works. According to the Report of the Canadian Royal Commission on Patents, Copyrights, Trademarks and Industrial Designs, 1957, “copyright is in effect a right to prevent the appropriation of the expressed results of the labours of an author by other persons”. According to UK Copyright Act, 1956, Section 1, “it is the exclusive right, by virtue and subject to the provisions of the Act, to do, and to authorize other persons to do, certain acts in relation to that work”. Section 14 of the Indian Copyright Act, 1957 defines copyright as “the exclusive right, subject to the provisions of this Act, to do or authorize the doing of certain acts i.e., literary, dramatic or musical work, computer work, artistic work, cinematograph film, sound recording.

OBJECT OF COPYRIGHT LAW: The object of copyright law is to encourage authors, composers and artists to create original works by rewarding them with the exclusive right for a limited period to reproduce the works for the benefit of the public. On the expiry of the term copyright, the works belong to the public domain and anyone may reproduce them without permission. The exclusive right given to the author is a negative right, that is to say, a right to prevent others from copying or reproducing the work. According to Wills J., in Miller Vs. Traylor, (1769) 4 Burr 2303, 2335, the main object of the copyright law is , “it is wise in any state to encourage letters, and the painful researches of learned men. The easiest and most usual way of doing it, is, by securing to them the property in their own works.

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Nobody contributes, who is not willing; and though a good book may be run down and a bad one cried up, for a time, yet sooner or later, the rewards will be in proportion to the merit of the work. A writer’s fame will not be the less, that he has bread, without being under the necessity of prostituting his pentoflattery or party, to get it. He, who engages in a laborious work….. will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family”.

NATURE OF COPYRIGHT: Negative right which prevents the copying of physical material •

ideas are not protected

•

it is not concerned with the reproduction of ideas, but with the

reproduction of the form in which ideas are expressed. • It is not monopoly right

CHARACTERISTICS OF COPYRIGHT: 1.

Copyright is a creation of specific statute.

2.

A copyright is a form of intellectual property since the product over

which the right is granted, eg., a literary work, is the result of utilization and investment of intellect 3.

Copyright is a monopoly right restraining the others from exercising

that right which has been conferred on the owner of copyright under the provisions of the Act 4.

Copyright is a negative right meaning thereby that it is prohibitory in

nature. It is a right to prevent others from copying or reproducing the work. 6

5.

Copyright is not a single right. It consists of a bundle of rights in the

same work. For example, in case of a literary work copyright comprises the right of reproduction in hard back and paper back editions, the right of serial publication in newspapers and magazines, the right of dramatic and cinematographic versions, the right of translation, adaptation, abridgement and the right of public performance. 6.

Copyright consists not merely of the right to reproduction. It also

consists of the right to works derived from the original works; rights like the right of public performance, the recording right and the broadcasting right which are as important or even more than the right of reproduction. Such related rights are terms “neighbouring rights”.

INDIAN COPYRIGHT ACT, 1957

MAIN FEATURES OF THE ACT: 1.

Creation of a Copyright office and a Copyright Board to facilitate

registration of Copyright and to settle certain kinds of disputes arising under the Act and for compulsory licensing of Copyright. 2.

Definition of various categories of works in which copyright subsists

and the scope of the rights conferred on the author under the Act. 3.

Provisions to determine the first ownership of Copyright in various

categories of works. 4.

Term of Copyright for different categories of works.

5.

Provisions relating to assignment of ownership and licensing of

copyright including compulsory licensing in certain circumstances.

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6.

Provisions relating to performing right societies.

7.

Broadcasting rights.

8.

International Copyright.

9.

Definition of Infringement of copyright.

10. Exception to the exclusive right conferred on the author or acts which do not constitute infringement. 11. Author’s special rights. 12. Civil and Criminal remedies against infringement. 13. Remedies against groundless threat of legal proceedings.

DEFINITION OF COPYRIGHT: According to Section 14 of Indian Copyright Act, 1957, ‘copyright’ for the purposes of this Act, is – (a) the exclusive right (b) by virtue of, and subject to the provisions of this Act, (c) to do and authorize the doing of any of the acts enumerated in clauses (a) to (e) of this section. Scope of Section 14: The section defines ‘copyright’ and gives the different kinds of works which may be the subject of copyright, and the adverse acts which may be done or authorized to be done in relation to copyright in different kinds of works.

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SUBJECT-MATTER OF COPYRIGHT: Sec. 13 of the Act deals with the subject-matter of copyright. The section sets forth – (a) the works in which copyright shall subsist, and (b) also works in which copyright shall not subsist. Copyright can subsist only in original works which (a) are first published in India, or (b) of which the author is a citizen of India. According to Copinger and Skone James on Copyright, the copyright law is in Essence concerned with the negative right of preventing the copying of physical, material, existing in the field of literature and art. Its object is to protect the writer and artist from the unlawful reproduction of his work. Meaning of word “work”: For many purposes, it is important to identify precisely the ‘work’ in question, for example because infringement is defined to take place when an unlicensed act takes place in relation to the ‘work as a whole or any substantial part of it’.

A ‘work’ is a thing which satisfies the statutory

description of a literary, dramatic, etc., work. The term ‘work’ is interpreted in section 2(y) of Act as “ ‘work’ means any of the following works, namely: (i) a literary, dramatic, musical or artistic work; (ii) a cinematograph film; (c) a record. At the end of the particular process of creation, one must look at what has been created and assess whether it is a literary etc., work and then whether it is an original work. If it is a single work containing number of antecedent works, then according to the interpretation given in CCH

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Canadian Ltd., Vs. Law Society of Upper Canada [2002] 4 F.C. 213, “one must decide whether the material in question is capable of existing outside of the context in which it is published, communicated, displayed, performed or otherwise disseminated. If a production is distinctive and reasonably able to stand alone, then it may be deemed a work in itself rather than a part of another work.

However, if a production is dependent upon surrounding

materials such that it is rendered meaningless or its utility largely disappears when taken apart from the context in which it is disseminated, then that component will instead be merely a part of the work. According to Rothstein J.A

‘a work was something which was complete or perhaps substantially

complete’. A work is something which conforms to the statutory description of the particular kind of work. According to the interpretation given in Coogi Australia Pty Ltd., Vs. Hysport International Pty Ltd., (1998) 157 A.L.R 247,

‘a claimant cannot

choose to divide up the subject matter into small parts, claiming that each part is a work. The term ‘work’ includes an unpublished work and there can be copyright in an unpublished work also. ORIGINAL: According to Sec.13(1)(a) of the Act, Copyright shall subsist in the following classes of works, that is to say original literary, dramatic, musical and artistic works. This gives the impression that copyright subsists in the above categories of works only when they are original. Historically, the requirement of ‘originality’ so far as the 1842 Act was concerned, only at a low level. This was demonstrated by the House of Lords decision in Walter Vs. Lane [1900] A.C. 539, where it was held that a reporter was entitled to copyright in his verbatim report of a public speech. Since the statute did not contain any express requirement as to originality, it might

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have been thought that the introduction of an express statutory requirement of originality by the 1911 Act brought about a change in the law. Decisions under the 1911 Act, however, established that the test of originality remained a low one, and the better view was therefore that there had been no change in the law. Principles of originality: 1.

Expression, not content: The originality which is required relates to

the expression of thought, and that the work should not be copies from another work, but should be original from the author.

Original, in this

connection, does not mean that the work must be the expression of original or inventive thought; the originality required relates to the expression of thought.

Story in a celebrated judgment in Frederick Emerson Vs. Chas

Davies (Story’s United States Rep. Vol. 3 p. 768)

set out the distinction

between the original composition and a piracy of a copyright. Some of the points are 1.

any new and original plan, arrangement or compilation of

material will entitle the author to copyright therein whether the materials themselves, be old or new, 2. that whosoever by his own skill, labour and judgment writes a new work may have a copyright therein unless it be directly copied or evasively imitated from another’s work 3. that to constitute piracy of a copyright it must be shown that the original has been either substantially copied or to be so imitated as to be a mere evasion of the copyright. 2.

Nature of skill or labour required:

To secure copyright for the

product of the labour, skill and capital of one man, it is necessary that the labour, skill and capital expended should be sufficient to impart to the product some quality or character which the raw material did not possess, and which differentiates the product from the raw material. There are two interconnecting strands involved.

First, the work must originate from the

author. Second, whether or not the author has drawn on other material, what 11

is required is the expenditure of more than negligible or trivial effort or relevant skill in the creation of the work. In case of copyrights there is no guiding principle as to the quantum of labour, siill or judgment required. So, it is a question of fact and degree. In G.A. Cramp & Sons Ltd., Vs. Frank Smythson Ltd., 1944 AC 329, Viscount Simon L.C.,

observed that nobody disputes that the existence of

sufficient ‘originality’ is a question of fact and degree. In order to determine whether a certain work has a requisite originality to render it an original work, it is right to take into account the considerable skill, judgment and labour expended in the compilation of the work. If considerable skill, labour and judgment has been employed, the compiler is entitled to copyright. In an unanimous decision led by the Supreme Court Chief Justice, Canada in CCH Canadian Ltd., Vs. Law Society of Upper Canada (2004) SCC 13 (Sup.Ct.(Can)), thoroughly reviewed two fundamentals of Copright law : Originality and Fair Dealing.

The decision set a new standard in the

fundamental principles of copyright and in doing so passed wider comment on the standards across the common law world. FACTS: The litigation arose from the desire of various publishers of law reports to receive a royalty every time a photocopy of a report was made. The Great Library at Osgoode Hall in Toronto, which is administered by the Law Society of Upper Canada (the governing body of lawyers in Ontario), was chosen by the publishers as a prime example of alleged infringing activity. The Great Library is a reference and research library with one of the largest collections of legal materials in Canada. The Great Library provides a request-based photocopy service for Law Society members, the judiciary and other authorised researchers. The publishers contended that the Great Library was infringing their copyright, by permitting photocopies of their works to be made for use by lawyers and students of the province of Ontario. The 12

litigation raised questions as to whether law reports, which by their very nature must be verbatim reports of judgments, could be deemed "original" works and further whether the copying of them was "fair dealing" if used for research, and as a secondary point whether it mattered that the research was for commercial purposes. The Decision on "Originality" in Brief Section 5 states copyright subsists "in every original [FN3] literary, dramatic, musical and artistic work". By the wording of s.5 "originality" sets the boundaries of copyright law; however, it is not defined in the Copyright Act. Section 2 defines "every original literary ... work" as including "every original production in the literary ... domain, whatever may be the mode or form of its expression". The Chief Justice concluded that copyright protects only the expression or form of ideas, and thus approved that "the originality requirement must apply to the expressive element of the work and not the idea". This case provided the first opportunity for the Supreme Court to consider how Canada wished to assess originality. Any determination of the court regarding originality therefore considered the numerous interpretations provided by other jurisdictions and authors. The Chief Justice considered that the view that works which originate from an author and are more than a mere copy of another work is sufficient to ground copyright, and found it to be consistent with the "sweat of the brow" or "industriousness" standard of originality, which she felt was premised on a natural rights or Lockean theory of "just desserts", namely that an author deserves to have his or her efforts in producing a work rewarded. In reaching this conclusion, the Chief Justice had regard to: (1) the plain meaning of "original"; (2) the history of copyright law; (3) recent

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jurisprudence; and (4) the purpose of the Copyright Act; and (5) she stated this to constitute a workable yet fair standard. The Canadian standard of originality is therefore that: (1) the work must originate with the author and not be copied; (2) in addition the work must be the product of skill and judgment; (3) the skill and judgment must not be trivial; a mere mechanical exercise is not acceptable; (4) creative work will by definition be "original" but there is no creativity requirement. The Court held that the headnotes, case summary, topical index and compilation of reported judicial decisions are all original works in which copyright subsists. An "original" work under the Canadian Copyright Act is one which originates from the author and is not copied from another work. The work must also be the product of the author's skill and judgment (but not labour); "skill" was given the meaning: the use of one's knowledge, developed aptitude or practised ability in producing the work, and "judgment" was given the meaning: the use of one's capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. The Court also requires that the exercise of skill and judgment must involve some intellectual effort and must not be so trivial that it could be characterised as a purely mechanical exercise. So, in this case, there was no evidence that the copiers had been used in a manner that was not consistent with copyright law. In addition, the Law Society's posting of a notice, warning that it would not be responsible for any copies made in infringement of copyright, did not constitute an express acknowledgement that the copiers would be used in an illegal manner. Finally,

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even if there was evidence of the copiers having been used to infringe copyright, the Law Society lacks sufficient control over the Great Library's patrons to permit the conclusion that it sanctioned, approved or countenanced the infringement

LITERARY WORK:

History of Protection: The category of literary works is the oldest category of protected works. In Sec. 35 (1) of UK Copyright Act, 1911 it was merely stated that a literary work included maps, charts and plans as well as table and compilations. The inclusion of maps, charts and plans followed the previous categorization of these works as literary works and compilations were expressly included to ensure that such works, which had previously been protected as “books”, remained protected.

The 1956 Act repeated this, as to tables and

compilations consigning maps, charts and plans to the more logical category of artistic works, as part of the definition of a drawing. In Comprop Ltd., Vs. Moran [2002] J.L.R. 222 (Royal Ct of Jersey), a map was classified as a literary work. In Art.2(1) of the Berne Convention,

a lengthy definition has been

provided which includes “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings, lecturers, addresses, sermons and other works of the same nature”. The statutory definition given in Indian Copyright Act, 1956 in Sec.13(1)(a) provides that subject to the provisions of this section and the

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other provisions of the Act, copyright shall subsist throughout India in original literary, dramatic, musical and artistic works, as well. The term ‘literary work’ in common paralance means any work written or printed in any language such as novels, poetry, history or books on any subject whatsoever.

The words, ‘literary works’ cover works which are

expressed in print or writing, irrespective of the question whether the quality or style is high. The statutory interpretation given in Sec.2 (o) of the Act, “literary work” includes computer programmes, tables and compilation including computer database.According to Sec2(o) of the Act “literary work” includes computer programmes, tables and compilation including computer data basis. The following works have been treated as ‘literary works’. a.

a telegraphic code

b.

a catalogue of type

c.

a system of shorthand

d.

newspaper telegrams

e.

the rules of a game

f.

tallies for bridge parties

In Shiam Lal Vs. Gaya Prasad AIR 1971 All. 92, the principles were laid down to identify what comes under ‘literarywork’. 1.

a compilation which may be derived from a common source falls

within the ambit of a literary work.

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2.

a work on compilation of a nature similar to that of another does not

by itself constitute an infringement of the copyright of another person’s work written on the same pattern. 3.

the question whether an impugned work is a colourable imitation of

another person’s work is a question of fact to be determined upon the facts and circumstances of each particular case; 4.

The determining factor in finding out whether another person’s

copyright has been infringed is to see whether the impugned work is a slavish imitation and copy of another person’s work or it bears the impress of the author’s own labours and exertions, or whether it has originality.

For example, papers set by examiners are literary works within the meaning of the Act. In Jagdish Prasad Gupta Vs. Parmeshwar Prasad Singh and Ors. AIR1966 Pat 33, it was held that the persons who set these question papers are the authors of those works, and those authors are the first owners of the copyrights therein. Facts of the case: The petitioner was the sole proprietor of the concern named Vidya Kendra located in Muradpur Mahalla in the town of Patna and this concern published and sold books of various kinds for the convenience of the students. Vidya Kendra was appointed the sole agent for the sale of old question papers of the Bihar School Examination Board, Patna, on terms and conditions contained in the letter of Board dated 3-7-1962 and by the same letter the said Board assigned its right to the petitioner to institute actions against anv person for the infringement of the copyrights of the Board in respect of those question papers.

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The petitioner alleged that Parmeshwar Pd. Singh and Dilkeshwar Pd. Singh, opposite party in Criminal Revision 1600 of 1963, were the proprietors of the concern Lakshmi Pushtakalaya, Publishers and Booksellers, having their business in Chowhatta Mahalla, Patna, and they were displaying, offering for sale and selling "Free India Test Papers" containing question papers of the Bihar School Examination Board, Patna, in which the Board had a copyright as its owner and thus they had infringed the copyright of the said Board. "Free India Test Papers" for the year 1962-63 contained old question papers of the Bihar School Examination Board and the opposite party had sold on 4-121982 to the petitioner a copy of the said papers for Rs. 8.95 nP. and the sale of the same was continuing with the result that the Board and the petitioner had suffered loss. Issue: Whether the questions set by examiners which are compilation of material from different sources qualifies the meaning “original literary work” as per the requirements of Copyright Act. The Copyright Act was enacted to amend and consolidate the law relating to copyright. According to Section 2 (y) (i), 'work' means a literary, dramatic, musical or artistic work as well. Section 2 (o) provides that 'literary work' includes table and compilations. Section 13 (1) (a) provides that subject to the provisions of this section and the other provisions ot this Act, copyright shall subsist throughout India in original literary, dramatic, musical and artistic works as well. The old question papers were set by different persons in the previous years but the Magistrate observed that the accused filed "a long list" to show that those questions were copied out from different text books printed much earlier and as such those question papers were not original literary works. In other words, the contention was that those questions were borrowed and copied from different text books and the paper 18

setters did not exert themselves at all and they had mechanically picked out those questions from those text books without applying their mind and intelligence. The Sub-divisional Magistrate observed that it was really revealing that the picking out of the different questions constituted only a work of compilation by the paper setters appointed by the Board and then he proceeded to consider as to whether such a mediocre work of compilation could be deemed to be an original literary work within the meaning of Section 13 (1) (a) of the Indian Copyright Act. He relied on a decision in the case of University of London Press Ltd. v. University Tutorial Press Ltd., (1916) 2 Ch D 601, and came to the conclusion that those old question papers of the Bihar School Examination Board were original literary works as envisaged in Section 13. The relevant observations of Peterson J. in that case were as follows : "In my view the words 'literary work' cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high. The word 'literary' seems to be used in a sense somewhat similar to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter. Papers set by examiners are, in my opinion, 'literary work' within the meaning of the present Act" (Copyright Act of 1911). Another question which arose for consideration in that case was as to whether the papers set by examiners could be said to be "original literary work". The learned Judge expressed his views in these terms : "The word 'original' does not in this connection mean that the work must be the expression of original or inventive thought. Copy-right Acts are not concerned with the originality of ideas, but with the expression of thought and in the case of 'literary work', with the expression of thought- in print or writing. The originality which is required relates to the expression of the 19

thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work--that it should originate from the author." a. ABRIDGEMENTS: A genuine abridgement of a literary work is an original work and can be the subject of copyright if it is new and original and the author has bestowed sufficient skill and labour upon it. Abridgement must carry the entire idea of the original book must be taken and expressed in languge not copied but condensed.

Independent labour should be there in reducing the book and

construing the theme of the original book. The mere reduction of the size of a work, by copying of its parts and omitting others, confers no title to authorship.

To make an abridgement requires the exercise of the mind;

labour, skill and judgment In Macmillan and Co., Ltd., Vs. Cooper AIR 1924 PC 75, The plaintiffs, a firm of publishers, had, in 1911, brought out in England an abridged edition of North's Translation of Plutarch's Life of Alexander edited by a Mr. Parr, for the use of Secondary Schools. The abridgment was not effected by giving the substance of the original work in the language of the editor but by excising various portions of the original work which were not considered suitable for the purpose for which the book was published. The portions which were retained were divided into an introduction and various Chapters, marginal notes were added and at places where original matter had been left out transitional notes were inserted so as to link up the thread of the narrative. At the end there were a few pages of notes. On the 4th October 1917, the University of Bombay, defendants

also

published another abridged edition of the same non-copyright book by similarly omitting passages from the book, but passages retained were more

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in number than plaintiff ’s. the marginal and transitional notes were omitted; and the notes all the end were far more copious. A list of the Text Books in English were published which were prescribed for the Matriculation Examination of 1919 in India. Amongst them was 'Plutarch's Life of Alexander" translated by North (Macmillan & Co.). The educational year would commence in March 1918 and any student who wished to enter for the examination would ordinarily seek to buy the plaintiffs' book. Sometime in November, the defendants who are also educational publishers issued hand-bills containing a list of the books published or about to be published by them for the Bombay Matriculation 1919. Amongst them was the following, "Plutarch's Life of Alexander (North's Translation abridged) edited with introduction, full notes, etc., by the Rev. A. Darby." Beneath the his of books was this advertisement:— In response to reliable annotated edition of Maomiixah English texts prescribed for the Bombay Matriculation examination we have this time published such editions in the confident hope that they will prove equally useful to teachers and pupils. These editions will be found more useful than any published in England as having been specially prepared for Indian pupils by those competent to underftand their needs; and in every respect m ire reliable than similar editions brought out in this country by editors more or less incompetent for the tasks they undertake. This was clearly an invitation to pupils and teachers to purchase the defendants' work instead of the plaintiffs.' Mr. Cooper, a partner in defendant’s firm admitted that, when the list was published by the Bombay Matriculation Board, he some how got the plaintiff ’s book and found that it omitted many important episodes which are important for Indian syllabi and asked Mr. Darby to abridge a new book which

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is suitable for Indian syllabi. And due to shortage of copies, at the beginning of the academic year, plaintiff ’s were unable to send a sufficient number of copies to India, which resulted into the demand for his copies. Plaintiff ’s asked the explanation for copying their book from defendants and defendants replied that it is the result of independent skill and labour of the author and there is no infringement. The plaintiffs filed this suit on the 30th October 1918 claiming an injunction, an account of the copies sold of defendants' delivery of copies unsold, and the profit made by the defendants by way of damages. The following issues were raised at the trial:— (1) Whether the plaintiffs publishers of an abridged edition of Plufcaroh's Life of Alexander were entitled to a copyright therein ? (2) Whether the publication of the plaintiffs was such original literary work as was entitled to copy-right ? (3) Whether the defendants by their publication had infringed the copy, right if any of the plaintiffs' publication? The court held that the plaintiffs were not entitled to sue, since they could not establish that a selection of passages from a non-copyright work was entitled to protection. According to Per Macleod, C.J.—"The important point to notice was that North's Translation of Plutaroh's Life of Alexander was available to any one who wished to reprint it. When the plaintiffs chose for their book about half of the original translation, they were not abridging it in the legal sense of the word, and looking at their text by itself, is could not, if published, have been considered an original literary work so as to be entitled to copyright. Skill and labour by themselves will not make up for the

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want of originality, while there is nothing original in picking out for publication portions of a work which is not copyright." "Publication of selections from classical authors for the use of schools must be exceedingly numerous, and if selection connoted originality the question would certainly be covered by authority." Per Shah J.—"I do not deny that some mental labour, skill and judgment are needed to select passages for the use of school boys. But at the same time it must be remembered that that by itself is not necessarily sufficient to constitute what one may call original work." "While I fully recognise that the word original' should be so construed as to give to the person who has used his brain the benefit of that use as far as possible,, bat unless the word is to be completely divested of its plain and natural meaning I find it difficult to hold that the matter, which is word for word taken from North's Translation, though only partially, constitutes an original work." To constitute a proper abridgment, the arrangement of the book abridged must be preserved, the ideas must also be taken, are expressed in language not copied, but condensed. To copy certain passages and omit others, so as to reduce the volume in bulk, is not snob an abridgment as the Court would recognise as sufficiently original to protect the author.

True Abridgement, thus requires – 1.

real and substantial condensation of the materials, and

2.

the exercise of intellectual labour and judgement

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To constitute a true and proper abridgement of a work –

1.

the author’s work must be preserved in its sense, and

2.

the act of abridgement must be act of the understanding employed in

converting a larger work into a smaller compass.

Bottom of Form Though law does not allow one person to take advantage over other’s labour, skill and capital, the abridgement should be something which should have some quality or character which raw material did not possess and which differentiates the new product from raw material.

An abridgment is different from ‘compilation’ 1.

Abridgement adapts the same arrangement where as in case of

compilation it is opposite 2. conveys the same knowledge in a condensed form opposite in case of compilation b. ADAPTATION: The term ‘adaptation’ has been defined in Sec.2(a) of the Act. It means – (a) in relation to a dramatic work, the conversion of the work into a non-dramatic work (b) the making of a non-dramatic version of a dramatic work (c) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or elsewhere; 24

(d) in relation to a literary or dramatic work – i.

any abridgement of the work, or

ii.

any version of the work in which the story or action is conveyed

wholly or mainly by means of pictures in a form suitable for reproduction in a book or newspaper, magazine or similar periodical, and (e) in relation to a musical work, any arrangement or transcription of the work For example, a play if it is in the public domain, there may be copyright in the adaptation of the same. In

Hatton Vs. Kean (1859) 7 CB 268, the defendant had designed a

dramatic representation consisting of one of Shakespeare’s plays, with certain alterations in the text, original music, scenic effects, and other accessories, the Court held that the production as a whole was a proper subject of copyright protection despite the original play having entered the public domain. A significant issue in finding copyright in such adaptations is the evidence of sufficient skill and labour in the adaptation. NOTE: Adaptation to be entitled to copyright must have the consent of the author or it must be of a work in public domain. If a substantial part of any work is infringement of copyright of any other literary work without any assignment or licence it will come within ambit of adaptation. The meaning of the term ‘adaptation’ and what it involves, though undefined, are brought out in the following passages by Stephen P. Ladas in his book on the “International Protection of Literary Artistic Property”, Vol. I at pp. 566-67. Adaptation is to be distinguished from-

25

a.

lawful or unlawful borrowings which involve copying or

reproduction in the same form b.

abridgments, when these do not involve alteration or transformation

of the work by the moulding and transfusion of a larger work into a smaller compass, but mere reduction of the size of the work by copying some of it and omitting others; c.

analysis or reviews of works;

d.

translations, inaccurate or disfiguring to the original work;

e.

reproductions on mechanical instruments;

f.

reproductions of works of art by a different part or process which do

not involve the appearance of a new element. Adaptations may be also of a musical composition or of a cinematograph film.

In case of musical composition, arrangement or adaptation is the

musical counterpart of literary translations i.e., arranging the voice or instruments which are considered as a musical language, by which the thoughts or emotions of composers are made known to the world into another musical lanugauge or from one form to adapat it for another form. NOTE : Consent of the owner is must In case of a cinematograph film, a film taken in one language may be adapted for another language by taking permission from the owner of the negative of the film. It is called the “dubbing right”. C. ADVERTISEMENTS: Advertisement also falls under the subject-matter of this Act, for the object of a person designing such an advertisement is to attract the passer-by. So, author is the owner of the advertisement and whoever wants to use it in

26

any magazine or compile it in any directory, he has to take permission from the owner. And he cannot obstruct others from using the same. D. ANNOTATIONS: Copyright subsists in annotations, if they involve exercise of intelligence and skill in making the test easily understood by those interested in using them. They must exhibit an addition to the work which is not superficial or colourable, but imparts to the book a true and real value over and above that belonging to the next. There is involved such annotations, an exercise of intelligence and an application of learning, which place the annotator in the position and character of an author. E. COMPILATIONS: Sec 2 (o) of the Act defines the expression “literary work” to include “tables and compilations”. The law protects not only works of genius, science and art, but also mere compilations, of matters and of parts taken from commonplace matter, such as dictionaries and directories, works of religious preachers or compilations of discourses.

But to protect the compilation as

one of the subject matter under copyright, it should include sufficient labour and skill in selecting and arranging the existing subject matter in the public domain. List of compilations to which protection has been given •

an arrangement of broadcasting programmes

•

school text-books

•

a book receipts

•

a book of scientific questions and answers

•

a directory

27

•

a trade advertisement

•

a list of fox-hounds and hunting dogs

•

a mining report

•

a list of registered bills of sale and deeds of arrangement extracted

from official sources •

a list of Stock Exchange Prices

•

biographical notes of prominent golfers published in a golf annual

•

a list of brood mares with their sires, and a list of stallions with

daughters at the stud •

a manual of classified information for the use of motor car insurers

•

an alphabetical list of railway stations contained in ‘Bradshaw’s

Railway Guide’. •

Chronological fixture lists of football clubs and

•

Football coupons

NOTE:

But the mere selection of various tables of an ordinary

character for insertion in a pocket diary has been held not to constitute the compilation of a copyright work on the ground that the labour of selection was negligible. In Satsang Vs. Kiron Chandra AIR 1972 Cal.533 at pp, 537-538, a religious preacher Anukul Chandra Chakrabarthy, better known to his followers as Sri Anukul Thakur, wrote a ‘Satyanusaram’ in his own hand as early as 1910, recording some of his religious teachings and precepts which were published in book form for the first time in 1919.

28

in 1925, he founded

a society or religious brotherhood of his followers, called Satsang which had a publishing unit known as Stassang publishing house at Deoghar. The object of the society was to propagate the ideals of the Thakur. In due course, the society brought out three publications of his writings and discourses, entitled ‘Anusruti (1949)’ and ‘Alochana Prosangay (1969). An exclusive licence to publish his works was given by the Thakur to his eldest son Amarendra Nath Chakraborthy in November, 1957.

around 1970, three publications

containing the writings and teachings of the Thakur were brought out by two of his disciples, Kiron Chandra and Kumud Bandhu Bal, which contained exclusive reproduction of the Preacher’s writings and sermons taken from the works published by the Satsang, and noticing the same, the society filed a suit and applied for an inter-locutory injunction against the defendants. The court ruled that the writings and sermons of a religious preacher, compiled on his behalf, would come within the meaning of ‘literary work’. Even compilation of Tambola Tickets by employing skill, labour and deep application of mind can be copyrighted and their copying in verbatim amounts to sheer piracy. In Shyam Lal Paharia and Anr. Vs. Gaya Prasad Gupta 'Rasal', it was held that some of the rules of law that emerge from the principles enunciated in the aforesaid cases may be briefly summarised. (1) A compilation which may be derived from a common source falls within the ambit of literary work. (2) A work of compilation of a nature similar to that of another will not by itself constitute an infringement of the copyright of another person's work written on the same pattern.

29

(3) The question whether an impugned work is a colourable imitation of another person's work is always a question of fact and has to be determined from the circumstances in each case. (4) The determining factor in finding whether another person's copyright has been infringed is to see whether the impugned work is a slavish imitation and copy of another person's work or it bears the impress of the author's own labours and exertions. The aforesaid principles are by no means exhaustive. A selection of poems, may also come under the heading of compilations. Trade

circulars and advertisement cards, trade dictionaries, guide books,

encyclopedias prepared with articles, trade statistics and compilation of letters, compilation of grammars etc., also the subject matter of copyright, provided, if such compilation involves labour and skill which is sufficient to prove originality in the work. In Secondary Board of Education Vs. The Standard Book Company, Calcutta Weekly Notes (CWN) (1966) 1130 at p. 1136, the court took a different view of the guide notes. In this case, in 1965, the West Bengal Board of School Education published a text book in English for Class VI, entitled ‘Parijat Readers, Book one” consisting of 17 writings in prose and 12 in verse on the opening page of this text book it was printed in bold letters. “Published under the authority and on behalf of the W.B.Board of Education”. Shortly thereafter, the standard Book Company Published a book called “Notes on Parijat Readers, Book one”. The Board objected to this and filed a suit, alleging that their copyright in the original text book had been infringed and applied for an injunction restraining the respondent from printing or publishing or selling “Notes on Parijat Readers, Book one”. The Court compared the two books and agreed with the Board’s contention that the object and purpose of the defendant’s publication was, the

30

students may read only the said “Notes” published by the respondents and not the book published by the plaintiff. The court held that the plaintiff ’s copyright had been infringed and granted an injunction against the respondent/ defendant on the ground that the Notes of the respondent compete with the original text and the same should be discouraged.

F. LAW REPORTS AND HEADNOTES: Law reports comprise verbatim reports of judgments, sometimes with certain omissions; and other matter, such as headnotes, both short and long, the facts of the case, the arguments of counsels, and sometimes comments of the editor.

Copyright exists in law reports and in judgments or judicial

decisions and headnotes in law reports. Each volume of law report consists usually of – 1.

the table of the cases reported in the volume in alphabetical order

2.

the headnote or syllabus or synopsis to each judgment, with the

names of the respective counsel, and their arguments also, in some cases; 3.

sometimes, a statement of facts, embodied in the report preceding

the judgment; and 4.

an index arranged alphabetically, and consisting substantially of a

reproduction of the headnotes; From the above list, it can be imagined that all but the judgment of the court, is the work of the reporter. So, a law reporter is entitiled to obtain a copyright for the matter which is the result of his own intellectual labour, including the title page, table of cases, and additional matter contained in the headnotes or synopsis not appearing in the judgment, the statement of facts, argument of counsel and index. 31

NOTE: the right obtained by the reporter do not cover the opinions of the courts, nor the official statements of fact and synopsis, if prepared by the court itself, or somebody entrusted by the Government with that job. In case of headnotes, if sufficient intellectual labour and skill is not expressed in making them, for eg., a mere compilation of paragraphs taken from judgment, it is not a subject matter of copyright.

If much skill and

exercise of thought is bestowed to express in clear and concise language, the principle of law to be deduced from the decision to which they are prefixed then it will come under the perview of copyrightable subject matter. NOTE:

The headnote, if it amounts to a mere abridgment of the

judgment with out originality, would infringe the copyright of the Government in the judgment, which may be said to be a government work within the meaning of Sec. 2(k) of Indian Copyright Act, 1956. G. LAW COMMENTARIES AND OTHER COMPILATIONS: A original literary work compiled on the basis of old work which is in the public domain is a copyrightable subject matter. If some other person by using the same public resource, compiles another data by using the original expression of idea by the prior compiler, it amounts to infringement of copyright. i.e., a person subsequent to prior compiler can utilize the public resources where there is no copyright infringement. If he uses the portion of prior compiler where he put his skill and labour amounts to infringement. In case of a law commentary, it is a compilation from several works which is available in public resources and is not original, the fact that its contents have been arranged on an entirely new plan gives the compiler a copyright in the book, provided he did not adopted the subject matter of some previous work which is original in nature.

32

NOTE: In making his own compilation, an author may, however, adopt words and expressions used in an earlier work, provided they are not of the prior author’s coinage. H. LECTURES: According to Sec.2(n), a ‘lecture’ includes address, speech and sermon. In relation to a lecture, according to Sec.2 (q), ‘performance’ includes ‘performer’s right’ i.e., Sec. 2(qq) which includes a person delivering a lecture. A lecture expressed in print or writing is a copyrightable subject matter and no copyright in a mere ex tempore speech. •

if a lecturer makes written notes of his speech, such notes is

copyrightable subject matter •

a lecture published with the consent of the author it is a

copyrightable subject matter •

a lecture delivered in private before reporters, no implied license to

publish without consent of lecturer •

a lecture delivered in public, is having implied license

•

a lecture delivered for students and noted by them in shorthand can

be used only for private use not for publication •

a lecturer can restrain others from publishing his lectures delivered

orally on payment of fees NOTE: Writings of preachers or compilations of their teachings or summons, or saying, prima facie are literary works and are protected under the Act, if they are the result of the knowledge, labour, judgment,

33

learning, skill or realization and understanding, and are protected under the Act. I. LETTERS: Letters are ‘original literary works’, and therefore, entitled to copyright. There are different kinds of letters such as 1. private letters, 2. commercial letters, and 3. government letters. In case of private letter, the author has the absolute right to restrict the receiver from publishing it. NOTE: The receiver can publish a private letter, if there is justifiable reason of public use or as a proof in support of his own rights and character and protection. In case of commercial letters, liecense to publish is more readily implied. In case of government letters, the government has the right upon grounds of public policy, to publish or withhold all letters, addressed to it. J. TITLE: Generally speaking, there is very little of literary work in a title, and it is not a proper subject of copyright but it may be important in passing-off action, where the offending party tries to pass-off his work as that of the real author. NOTE: But in exceptional cases, there can be a display of literary composition in a title, so as to attract copyright in the same. In I.Pandiyan Arivili Vs. Kamal Hassan, (1995) 2 LW 347 (Mad.) (DB), the Appellate had filed a suit claiming copyright in the title of a book “Magalir Mattum” in Tamil which he had got registered with the Registrar of Copyrights.

According to him, the book is yet to be published.

He has

acquired the copyright for the title of the work by virtue of the said registration. He has found, however, that the respondent has come forward 34

with an advertisement that he has proceeded to produce a film in the name of “Magalir Mattum”.

This, according to the plaintiff – appellant is an

infringement of his copyright and that has given rise to an action in Court for a permanent injunction. The Court held that the work of the author according to Indian Copyright Act, 1957 is confined to the work and not to the title. There is no property in the name which is the term of description used to identify the work and anyother person can, with impunity, adopt it.” NOTE: But there can be an occasion that an author can complain for infringement of copyright vested in title of his work, if he can prove that the infringing party is using it to induce the public and to make them believe that his work belongs to the original owner. But however, it is necessary for the author and the composer to bring such material facts and evidence in support thereof that the tile of the work has acquired sucha character in the mind of the public that they cannot easily disassociate the title from the work and accept the same for any other work.

Finally, the order of trial Court declining to grant injunction was upheld. NOTE:

Title may be protected by a ‘passing-off’ action, if

possibility of injury to the plaintiff’s good will is proved. There must be grounds for apprehending actual deception and a mere intention to deceive is not enough. Some other subject matters which can be protected under copyright: •

New editions of works

•

Selection of paragraphs with continuity from various sources 35

•

Translation

•

Syllabi issued by Education Board

•

Historical works having originality

•

Questionnaire for collecting statistical information

COMPUTER PROGRAMME: History: Computer programs were not expressly referred to in the UK copyright legislation until 1985, nor in any major copyright convention until 1996. In WIPO Copyright Treaty, 1996, internationally, a wide view was held to include computer programs under literary work.

The Berne convention came out

with a directive on the legal protection of computer programes in 1991, which specifically provides that the term computer program should include preparatory design material for computer programmes. But that preparatory design work if resulted in later stage into a computer program then only it is copyrightable subject matter. According to Sec. 2 (ffb),

computer includes any electronic or similar

device having information processing capabilities.

According to Sec.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. The definition given by WIPO, Draft Model Provision for Legislation in the field of Copyright, 1988 is, “ A computer program is a set of instructions expressed in words, codes schemes or in any form which is capable, when incorporated in a machine readable medium, of causing a ‘computer36

electronic or similar device having information processing capabilities to perform or achieve a particular task or result’. A machine readable medium may be in a High Level Lanugague (HLL), a part of computer hardware, it could be stored in any form like Magnetic tapes and discs including floppy disc can be considered as copyrightable subject matter, if that information can be considered as literary work The words given in the definition part “schemes or in any other form” would seem to indicate that the source code and object code of a computer programme are entitled to copyright protection. A source code is a computer programme written in any of the several programming languages employed by computer programmers. An object code is the version of a programme in which the source code language is converted or translated into the machine language of the computer with which it is to be used. The object code is an adaptation or mechanical translation of the source code entitled to copyright protection. If a letter or a figure is omitted from the source code, it will most probably not compile (giving an error in the process of attempted compilation) or it may compile with results different from what is intended. Changing any single bit in the object code may be sufficient to render the programme unworkable. Every single element of the source code and object code is thus essential, in that the programme will not perform its intended purpose without that particular element. (See Sydney Law Review, 1998 SydLRev. 12, Article by Ben Kremer : “Copyright and Computer Programmes : Data Access v. Power Flex before the High Court”).

In Apple Computer Inc., Vs. Franklin Computer [1983] 714 F 2nd 1240, Apple Computer Inc., is a well known for manufacturing and marketing of personal computers, related peripheral equipment and software. At the time 37

when this suit was being fought, Apple manufactured Apple II computers and distributed over 150 computer programmes.

One of the by-products of

Apple’s success is the independent development by third parties of numerous computer programmes designed to run on the Apple II computer. During the same time, Franklin Computer designed and sold ACE 100 personal computers compatible with Apple computers so that the peripherals and software developed for use with Apple II computers could be used n conjunction with ACE 100 computers as well.

Franklin achieved this

compatibility by copying Apple’s operating system computer programs. There are three different types of programming lanugagues, machine language, (object code), assembly language, and high-level language (source code). It is the object code, which is understood by the CPU. A computer program can be stored or fixed on a variety of memory devices among which two are particularly related with this case. The ROM is an internal permanent memory device consisting of a semiconductor chip, which is incorporated into the circuitry of the computer. A program in object code is embedded on a ROM before it is incorporated in the computer. The other device used for storing the programs at issue is a diskette or floppy disk, an auxillary memory device consisting of a flexible magnetic disk resembling a phonograph record, which can be inserted into the computer and from which data or instructions can be read. Computer programs can be categorized by function as either application programs or operating system programs.

Application programs

usually perform a specific task for the computer user, such as word processing, checkbook balancing, or playing a game. In contrast, operating system programs generally manage the internal function of the computer or facilitate use of application programs. Apple filed a suit in the US District Court of Pennsylvania on May 12, 1982, alleging that Franklin was liable for copyright infringement of 14 38

computer programmes, patents, unfair competition and misappropriation. The court took up the copyright matter alone. Apple produced the evidence that programs sold by Franklin in conjunction with ACE100 were virtually identical with those covered by the Apple programs. Apple showed evidence that it spent 46 man-months and $74,000 for developing these programs. The Apple programmer also asserted that his name was embedded in one program and the world ‘applesoft’ was embedded in another. names appeared on the

franklin Master Disk.

Both these

Franklin did not dispute

Apple’s arguments but took a stand that Apple operating system programs are not capable of copyright protection. Issues: 1.

whether copyright can exist in a computer program expressed in

object code 2.

whether copyright can exist in a computer program embedded on a

ROM 3.

whether copyright can exist in an operating system

Apple went to the court of appeals, which reconsidered the matter point by point. Regarding copyrightability of programs in object code, the court referred to definitions of literary work and computer programs as given in the US laws, “A computer program has been defined as a set of instructions to be used in a computer in order to bring about a certain result.” This definition makes no distinction between application programs and operating programs. A literary work has been defined as, “Works, other than audio-visual works, expressed in words, numbers, or of the verbal or numerical symbols, regardless of the nature of the material objects, such as books, periodicals, manuscripts, phonorecords, films, tapes, disks, or cards, in which they are embodied.” Therefore, the object code which is written in numerals 0 and 1 is 39

a literary work and hence very much copyrightable. It was further opined by the court of appeals that two primary requirements must be satisfied in order for a work to constitute copyright subject matter, it must be original and must be fixed in a tangible medium of expression. The court held that the requirement of “fixation” is satisfied through the embodiment of expressions in the ROM devices. In some earlier case, it was decided that audiovisual display of video games “fixed” in ROM chip was an appropriate subject of copyright. Therefore, the court of appeals declared that a computer program embedded on a ROM is a copyrightable material. Franklin’s attack on operating system programs as “methods” or “processes” also seems inconsistent with its concession that pplication programs are an appropriate subject of copyright. Both types of programs instruct

the computer to do

something. Therefore, it should make no difference for purposes of determining whether these instructions tell the computer to help prepare an income tax return (the task of an application program) or to translate a high level language program from source code into its binary language object code. Since it is only the instructions which are protected, a “process” is no more involved because the instructions were written in ordinary English in a manual which described he necessary steps to activate an intricate complicated machine. There is, therefore, no reason to afford any less copyright protection to the instruction in an operating system program than to the instruction in an application program. An argument was also put forward by Franklin that an operating system program is a part of a machine, hence is not copyrightable. The court opined that the mere fact that the operating system program may be etched on a ROM does not make the program either a machine, part of a machine or its equivalent. Because ROM is only a medium and not the message. Instead of ROM the operating system program could be written on a diskette or

40

magnetic tape also. Programs should no more be considered machine parts than videotapes should be considered parts of projectors or phonorecords parts of sound reproduction equipment. The words of a program are used ultimately in the implementation of a process and this should in no way affect their copyrightability. To Franklin’s argument that the operating systems cannot be copyrighted because they are “purely utilitarian works” and that Apple is seeking to block the use of the art embodied in its operating systems, the court said utilising a work of copyright without permission was equivalent to piracy of the copyrighted work. The district court had also observed that Apple was better suited to withstand injury than was Franklin to withstand the effects of an injunction, indicating that Apple would not experience irreparable harm. The court of appeals did not agree to this argument and stated that if that were the correct standard then an infringer would be permitted to construct business around its infringement, a result which could not be condoned. The court of appeals reversed the denial of the preliminary injunction and sent back the case to the district court for further proceedings in accordance with the decision of the court of appeals. Data Access Corporation case came to be decided by the High Court of Australia on 30th September 1999 (HCA 49 (30th September 1999). It dealt with the question whether copyright subsisted in an individual command and whether an individual command itself was a computer programme within the meaning of the definition of that expression contained in Section 10(1) of the Copyright Act, 1968 (Cth), of Australia. It was also concerned with the question whether a collocation of those commands constituted a substantial part of the application development system. The Full Court of the Federal Court had held that the copyright as original literary works did not subsist in commands in the Dataflex computer language contained in a computer 41

programme developed by Data Access in the United States. The Full Court held that those commands were not “computer programmes” and were not entitled to the protection of the Copyright Act, 1968 (Cth). An amendment, similar to the one made in Section 2(o) of the Copyright Act, 1957 in India, by which literary works included computer programmes, tables and compilations, including computer database, was also made in Section 10(1) of the Australian Act, in which, as per item (b), the words “A computer programme or a compilation of computer programmes” were added in the definition of “literary works”. The High Court of Australia held that the said amendment “obviously marked a significant departure from what previously had been the understanding of what was required for subsistence of copyright in an original literary work”. The Court observed that, in construing the expression “set of instructions” in the definition of “computer programme”, there is no need to choose between the technical meaning and the natural and ordinary meaning of the expression. Words in a statutory definition are to be interpreted in their statutory context. The Court cannot interpret the meaning of the definition of “computer programme” without some understanding of the manner in which a computer executes a computer programme. If interpreting a phrase “set of instructions” in the definition of “computer programme” in light of the manner in which a computer operates is to be regarded as ascribing a technical meaning to the phrase, then it must be given its technical meaning. However, the “natural and ordinary” meaning and the “technical or art” meaning of the phrase “set of instructions” is one and the same when it is considered in its statutory context, (paragraph 34). In this case, Data Access owned the copyright in a system of computer programme which was known as Dataflex. The Dataflex system incorporated: a programme development system which provided the means to write, edit, compile and run programmes under development; a computer programming

42

language known as the “Dataflex language” which was an application development language in which the source code for all Dataflex programmes was written or generated; a compiler programme which translated the dataflex source code programmes written in the Dataflex language by using the programmes development system, into an internal format, which was then able to be run by the runtime programme; and a runtime programme, which was executable programme required to run the compiled application programmes, developed using the programming development system. It was contended by Data Access Corporation that copyright subsisted in each of the Reserved Words because each was a “computer programme” and that copyright also subsisted in the collocation of Reserved Words comprising the Dataflex language because this collocation was a “computer programme”. The Court found that each of the Reserved Words was a single word; none a “set of instructions” in the Dataflex language. Further, none of the Reserved Words intended to express, directly or indirectly an algorithmic or logical relationship between the function desired to be performed and the physical capabilities of the “device having digital information processing capabilities”. It was held that the Reserve Words themselves are not a “computer programme” in Dataflex language, and that each Reserved Word “comprises but a single instruction in that language”. Each Reserved Word considered alone, is not a “set of instructions” in that language. It was further held that although Reserved Words together form “an expression ... of a set of instructions”, their simple listing together, without more, does not cause a computer to perform any identifiable function. There is no interrelationship of the instructions with one another which is an expression of a logical or algorithmic relationship between an identifiable function and the physical capabilities of the computer via the medium of the Dataflex language. Dealing with the contention that the appellant’s copyright was infringed because collocation of Reserved Words was a substantial part of the Dataflex system, 43

the Court held that, in determining whether something is a reproduction of a substantial part of a computer programme, the essential or material features of the computer programme should be ascertained by considering the originality of the part allegedly taken. The Court held that even when the Reserved Words were considered as a collocation, they did not possess sufficient originality as data to constitute a substantial part of the computer programme of Dataflex system. Whether a part copied is substantial or not must depend on its quality rather than its quantity. The reproduction of a part which by itself has no originality will not normally be a substantial part of the copyright and therefore will not be protected. For that which would not attract copyright except by reason of its collocation will, when robbed of that collocation, not be a substantial part of the copyright and therefore the courts will not hold its reproduction to be an infringement. Thus, “there will be no copyright in some unoriginal part of a whole that is copyright”. [See Ladbroke (Football) Ltd. v. William Hill (Football) Ltd., [1964] All E.R. 465, 481]. A computer consists of two principal components: hardware and software. The hardware comprises the physical machinery of the computer and is usually made up of four components: an input device (such as a typewriter-like keyboard); a control processing unit (CPU) which converts raw data into useful information; a memory or data storage device, and output devices which include disks, printers or video display terminals. While in operation, these components interact on the instruction of a microprocessor which, in turn, receives its direction or command from a computer programme. In general, a computer will only function if the programme is loaded into the computer’s RAM (one of the data storage devices which temporarily stores data that is currently being processed by the computer). The information in the RAM is in the form of evanescent electrical impulses. 44

It is stored in the form of a charge on a capacitor. Information in RAM can be changed simply by downloading new information. The information will be erased if the computer is turned off. When the computer is turned off, the capacitor begins to discharge both as a result of its own leakage resistance and the fact that it continues to conduct a tiny amount of current. Each time a computer is turned on, a programme or a portion of the programme, is “loaded” onto the computer’s RAM. Thus, for a computer to operate it must take information from a programme (which will take the form of permanent storage, such as a CD-ROM), translate that information and store it in the RAM from where it will be transferred to the CPU which will perform the actions called for by the programme and send the appropriate directions to other parts of the system. The question that arises is, whether downloading a computer programme (or, more accurately, the object code) into a console’s RAM amounts to a reproduction of the object code and thus infringes the copyright contained in the computer programme. This question directly arose in Kabushiki Kaisha Sony Computer Entertainment v. Eddy Stevens before the Federal Court of Australia Full Court, decided on 30th July 2003, [(2003) FCAFC 157]. It was held by the majority that, according to ordinary English usage, the electronic impulses in RAM do not constitute “material form”. The Court approved the view that the transient holding and displacement of data in RAM which necessarily occurs in the course of the running of a computer programme as not constituting “storage” within the definition of “material form”. The Court was, however, of the unanimous opinion that the broader construction of the definition of the expression “technological protection measure” was to be preferred and the appeals brought by Sony Company were allowed by holding that, by supplying and installing the modified chips in Playstation consoles so that the unlawfully copied games could be played on them without the non-re-producible access codes that are normally the means by which a device in the console, known as a Boot ROM recognises lawful 45

copies, the respondent was liable under Section 116A of the Copyright Act, 1968(Cth) to the three Sony Companies. Section 116A confers upon copyright owners a right of action against the persons supplying devices to circumvent technological protection measures which are designed to prevent or inhibit the infringement of copyright by the use of access codes or copy control mechanisms.  

Justice Lindgren was of the opinion that the notion of embodiment

(under Section 10(1) of the Australian Act “copy” in relation to a cinematograph film, means any article or thing in which the visual images or sounds comprising the film are embodied, (compare with Section 2(m)(ii) of the Indian Act which uses the expression “copy of the film made on any medium”), was not satisfied by what occurred in the Console’s RAM, referring to the reason stated by the Court below that the evidence suggested that only a very small proportion of the images and sounds comprising the cinematography film are embodied in the playstation console’s RAM at any given time. According to him, “such article or thing can be taken in one’s hand and used from time to time, with the use of some other device, to reproduce the visual images in question”. (See paragraphs 182 and 183 of the judgment). Justice Finkelstein , while agreeing that the appeal should succeed on the first ground, differed on the remaining two grounds including the question as to whether downloading a computer programme into a Console’s RAM amounts to re-production of the object code and thus infringes the copyright contained in the computer programme. The learned Judge observed that “Whatever Computer Experts may say”, RAM was a method of storage as per the Explanatory Memorandum. In his view, if there is no longer a requirement for an allegedly infringing work to be continuously visible, there is no reason why storage in RAM cannot be a relevant form of storage. The Legislation should also be construed in a way that accommodates scientific

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changes. In particular, the meaning to be given to “form ......... of storage” must keep abreast with the digital age. Furthermore, transitory nature of the memory in RAM is more complex than it first appears. On the one hand, the information that is stored can be wiped out in a second. On the other, it is possible that it may remain stored in RAM for the life of the computer. To hold that RAM is not a form of storage, would be to thwart the Legislature’s intention, according to the learned Judge. (See paragraph 208). The learned Judge was of the opinion that the phrase “an article or thing” should be subject to an interpretation that is broad or as some might say, “open textured”. On this approach, RAM which is a device for storage may be regarded “as a thing”. It is no less a “thing” than some other “thing” which exists as a separate or distinct entity with its own individual qualities such as a piece of equipment or as something which may in a sense be possessed or owned. It was not in dispute that sounds and images which are stored in RAM were capable of being re-produced. (See paragraph 215 of the dissenting judgement by Finkelstein J. in Kabushiki Kaisha (supra). Section 10(1) of the Australian Act defines “technological protection measure” to mean “a device or product or a component incorporated into a process, that is designed, in the ordinary course of its operation, to prevent or inhibit the infringement of copyright in a work or other subject matter by either or both of the following means : (a) by ensuring that access to the work or other subject matter is available solely by use of an access code or process (including decryption, unscrambling or other transformation of the work or other subject matter) with the authority of the owner or licensee of the copyright; (b) through a copy control mechanism”. A circumvention device is a device (including a computer programme) having only a limited commercial significant purpose or use, or no such purpose or use other than the

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circumvention or facilitating circumvention of an effective technological protection measure. It will be noticed that, under Article 11 of the WCT, it is provided that contracting parties shall provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights under the said Treaty or the Berne Convention, and that restrict acts in respect of their works, which are not authorised by the authors concerned or permitted by law. Article 18 of the WPPT provided similarly in relation to performers and producers of sound recordings. The reforms on the above lines for updating India’s copyright standards to meet the challenges of communication technology in particular the huge expansion of the internet, are overdue in order to maintain the delicate balance between the rights of copyright owners and the rights of copyright users. The use of technological protection measures by copyright owners is likely to increase in the near future as system for the on- line trading of copyright material is adopted in India. The technological measures to protect copyright materials are essentially of two types : access control measures and copy control measures. Access control measures allow the copyright owner to control who has access to the copyrighted material. Examples of access control measures include password protection, file permission and encryption. Copy control measures allow the copyright owner to control the extent of a person’s access to copyright material. Copy control measures are based on the premise that a user already has some lawful access to the work and the measures seek to control what the user can then do with the lawfully obtained copyrighted material. An example of a copy control mechanism is a mechanism that allows first generation copies but prevents second and subsequent generation copies. There is a difference in scope between the two types of measures (access control 48

measures and copy control measures). Copy control measures are more closely allied with copyright, and with the infringement of copyright, than access control measures. Access control measures seek to prevent all access to copyright material, not only that access which is unlawful. (See The House of Representative Standing Committee on Legal and Constitutional Affairs (The HRSCLCA) Committee, Australia, in its Advisory Report referred in paragraph 117 of the judgement of Lindgren J. in Kabushiki Kaisha (supra). The Copyright Act should not be given a meaning that is frozen in time, but should be interpreted in a way that takes into account technological advances, provided that the interpretation is consistent with its purpose. The unauthorized circumvention of locking device should be specifically made actionable at the instance of copyright owners and their exclusive licensees and the use of any device which enables the unauthorized use of computer programme should be prohibited. The Copyright Act, 1957 is, therefore, required to be amended to provide that copyright owners and their exclusive licensees may have the right to prevent the commercial manufacture, storage, distribution and possession, for commercial purposes, of devices which are designed to facilitate the unauthorized circumvention of locks or other devices applied to protect computer programmes from unauthorized copying. In Lotus Vs. Paperback Sofrware, 740 F. Supp. 37 (D. Mass. 1990), the court extended the copyrightability of the non-literal elements of computer programs to menu command structures.

The structure, sequence, and

organization of the menu command system were all found copyrightable. However in a recent decision in Indian case, Engineering Dynamics, Inc., Vs. Structures Software Inc., and S.Rao, Guntur,

Civil Act. No. 89, -1655, the

court did not follow the reasoning of lotus and held that formats are not copyrightable.

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COMPUTER SOFTWARE:

Computer software includes many items like the programme manuals and papers, punched cards and magnetic tapes or discs required for the understanding or operation of computers.

No protection for computer

software in Patent Law. Manuals and papers included in computer software may be considered as literary works.

Similarly, computer printouts can be

considered as literary work. Punched cards to some extent can be considered as copyrightable subject matter. if electronic impulses recorded in it could be considered as a form of writing notations.

Programmes devised for the

working of computers, is generally regarded as literary or artistic works. NOTE:

The concept or idea of algorithms, frequently used in

computer programming is not capable of copyright protection. COMPUTER DATABASES: The inclusion of computer databases in the literary work was by Amendment Act, 1999. A database is defined as a collection of independent works, data or other materials, arranged in a systematic or methodical way and individually accessible by electronic or other means. A database includes a. literary, artistic, musical or other collections of works, b. collections of other material such as texts, sounds, images, numbers, facts and data and c. collections of independent works, data or other materials, the common requirement being that such collections should be systematically or methodically arranged and individually accessible. NOTE:

the compilation of several recordings of musical

performances on a CD is not protectable subject matter.

Computer

programs used in the making of cinematographic, literary or musical works as such are not copyrightable. 50

IN WHAT LITERARY WORKS COPYRIGHT CANNOT SUBSIST: •

which are not original

•

which are liebllous, immoral, obscene, or positively of an irreligious

tendency, •

works of grossly immoral tendency,

•

works which are calculated to deceive the public,

•

works which are contrary to public policy

•

works which are seditious

2. DRAMATIC WORKS:

History: Dramatic works were protected under the early copyright statutes as literary works, but the performing right in usch works was not given statutory protection until the Dramatic Copyright Act, 1833, under which the performing right was given to authors of any tragedy, comedy, play, opera, farce or other dramatic piece of entertainment. To constitute a dramatic work in those days, it had to be more than just ‘dramatic’, in particular it had to be a work of action. By the time of the 1911 Act, protection under the Berne Convention extended to dramatic and dramatico-musical works, choreographic works and entertainments in dumb show, the action form of which was fixed in writing

51

or otherwise. The Act included works without words, such as works of dance and mime. A further change under the 1911 Act was that the definition of dramatic work also includes any cinematograph production where the arrangement or acting form or the combination of incidents represented gave the work an original character. But by virtue of 1956 Act, cinematograph film was given a separate protection status. In case of films, a film which is a work of action can be included under the meaning of dramatic work.

They also included

broadcast as a dramatic work. Form of work: There is no particular requirement as to the form which a work has to take in order to be a dramatic work. A play is a prime example of dramatic work and a screenplay is another.

Unlike literary work, there is no

requirement that a dramatic work should be in written form before performing. Features of dramatic work: 1.

there should be sufficient certainity of subject matter.

2.

the those sufficient certain features or elements should be

sufficiently linked or connected so as to be capable of performance. For example, the sound and light effects in a drama cannot be considered as sufficiently certain, provided they are sufficiently6 certain and capable of being linked together with other elements of the action. Indian Scenario: Sec. 2(h) of the Indian Copyright Act, 1957 defines “dramatic work” as it includes any piece for recitation, choreographic work or entertainment in

52

dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. Thus a ‘dramatic work’ includes – 1.

any piece of recitation;

2.

any choreographic work;

3.

entertainment in dumbshow;

4.

the scenic arrangement or acting form of which is fixed in writing or

otherwise; NOTE: it does not include ‘cinematograph film’. NOTE:

choreography is ‘the art, or the notation, of dancing,

specially ballets: the arrangement of a ballet. There are many interpretations relating to what constitutes a dramatic work. The opinion given by different authors were given below: As per Ball, a famous writer on Copyright law defined a ‘dramatic composition’, as a work in which the narrative is unfolded – a.

by dialogue and action, as in a spoken play, or

b.

by action alone, as in a pantomime,

NOTE: but in neither case, it must tell a connected story, or portray a series of related events. As per Amdur, another author defined a ‘dramatic composition’ as a written work in which the narrative is not related by words but by dialogue and or action. 1.

Acting may be performed by voice, action, gesticulation or facial

expression. 53

2.

There may be acting without speech, such as in pantomime;

3.

it is necessary that there should be both speech and action in dramtic

performances, although dialogue and action usually characterize them. 4.

scenery and stage properties are not essential in a dramatic

reproduction. This is entirely irrespective of the set of the stage, or of the machinery or mechanical appliances, or scenery; 5.

the designation ‘dramatic composition’ does not include dances,

motion picture shows, stage settings or mechanical devices by which dramatic effects are produced, or ‘stage business’; animal shows, sleight-off-hand performances, acrobatic or circus tricks of any kind; scenarios for, or descriptions of, motion pictures or of settings for the production of motion pictures; 6.

a dramatic composition must tell a story; a dance is not

copyrightable; 7.

mere spectacles are not dramatic compositions;

8.

unconnected monologues or dialogues are not dramatic works.

Conditions for Subsistence of Copyright in a dramatic work: 1.

the work in question is an original work;

2.

the work in question is a dramatic work;

3.

the work in question amounts to a work.

NOTE:

Thus, in a production consisting wholly or of parts taken

from well-known dramas or operas, or of a succession of dances,

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tableaux, the scenic effect has no originality within the meaning of the copyright law. Therefore, there can be no copyright in such productions.

NOTE: •

Dialogues are not essential, but the work, in order to be

protected as a dramatic work, must express a series of consecutively related events, which tell some story either in words or dumbshow. •

Notation of dancing, the scenery and the costumes that was

considered as an element of copyright. •

There may be copyright in the plot of a play published in print

and writing. •

A ballet may be the subject-matter of copyright as a composite

work, the elements of which are the music, the story of libretto, the choreography or notation of the dancing, the scenery and the costumes. Copyright may subsist independently in each of the separate parts. •

A revue may be the subject of copyright, although it has no

connected dramatic interest but consists in a series of scenes loosely hung together. •

A musical work, which consists of acting and possibly scenery

can be a copyrightable subject matter under dramatic work •

There can be no copyright in a novel character, unless there is

something exceptional about it •

A motion picture cannot be regarded as a piece of recitation or a

choreographic work or entertainment in dumb show.

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ARTISTIC WORKS: According to Sec.2(c) of the Act, ‘artistic work’ means – 1.

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; 2.

a work of architecture;

3.

any other work of artstic craftsmanship

In general sense, any colour scheme or get-up or layout or arrangement of any alphabets or features is undoubtedly an artistic work. The artistic work or the colour scheme getup, layout of arrangement of distinctive feature including the style of the letters of alphabets confer the copyright upon the owner. Essential Ingredients: 1.

The work must fall within the definition of ‘artistic work’;

2.

It must be original;

3.

It must be comprehensive enough to be called a work.

NOTE : •

No copyright for ideas or schemes, or systems or methods.

•

There can be copyright in the reproduction in a different

medium of an already existing work. •

A map compiled from best authorities, involving considerable

expenditure, may be the subject of copyright, if there is great industry and also some element of originality. 56

•

Copyright can be obtained in plans irrespective of artistic

quality, irrespective of original construction. • Photographs are included under artistic work. In Kesari Maratha Trust Vs. Devidas Tularam Bagul, 1999 PTC (19) 75, where a photograph of a renowned poet was shot by the plaintiff, the publication of the photograph without permission of the photographer by copying it from the another published material, was held to be an infringement of copyright. The photograph taken in a peculiar manner which tried to highlight the intensity and direction of light and vision, that produced an artistic effect in the said photograph, was an artistic work as per the Copyright Act. •

Artistic work includes ‘engravings’. Engravings are separately

copyrightable apart from photograph basing on which it is developed. Fortune Films International Vs. Dev Anand & others, AIR 1979 Bom.17, the main question was whether a cine artist had a separate and co-existing copyright in his work in the film.

The facts of the case were that in

December, 1972, Fortune films, producers of a hindi film “Darling Darling” engaged the services of a veteran film actor, Devanad, for the leading role in the said film.

On 1st August, 1974, a written agreement in the form of a

letter was entered into, between the producers and the cine artist, which recorded that copyright in his ‘work’ in the film would vest in Dev Anand until certain conditions had been met, including payment of Rs. 7,00,000 to the artist. Thereafter the copyright was to be transferred to the producers. Subsequently, when the film was completed and released in 1977 in the territories specified in the agreement as well as in the East Punjab territory, the cine artiste objected on the ground that it was the breach of high right

57

under the agreement dated 1st August, 1974.

the main issues before the

Bombay High Court were a. whether the words ‘copyright’ therein’ in the agreement refer to the work of cine artiste in the picture or to the picture; b. whether the performance of a cine artiste in the film would be a work protected by the Copyright Act, 1957. On the first question, it was held that on a reading of the language employed, it would appear….. that the word ‘therein’ can only refer to the work of the cine artiste in the picture and not to the picture as a complete entity. On the second issue, whether the performance of a film actor would qualify as a ‘dramatic’ or ‘artistic’ work protected by the copyright law, the court held that copyright Act, 1957, does not recognize the performance of an actr as ‘work’ which is protected by the Act. SOUND RECORDING: Sec.2(xx) provides definition for ‘sound recording’ as a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is the method by which the sounds are produced. Any record such as a tape, vinyl disc, compact disc, compact cassette, or other devices embodying sounds which are capable of being reproduced therefrom are protected copyright works. In India, there is Indian Phonographic Industry, in which majority of the leading sound-recording producers are members such as gramphone company of India, Music India Ltd., Wester Components, Venus Recording Company, CBS India, TIPS India, Magna sound etc., Sec.13(2):

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•

Copyright shall subsist in the case of a published work, which is first

published in India. In case of works published outside India, the author at the time of publication must be citizen of India, or in a case where the author dead at that date, at the time of death, he must be a citizen of India. •

In case of unpublished work other than architectural work, the

author at the date of making of work shall be citizen of India or domiciled in India •

In case of work of architecture, the work should be located in India.

Sec.13(3): •

A Cinematograph film in its substantial part infringing the copyright

in any other work, copyright shall not subsist. •

In case of sound recording made in respect of a literary, dramatic or

musical work, if any infringement occurred while making to above works, copyright shall not subsist Sec.13(4): The copyright in a cinematograph film shall not infringe the separate copyright in any work in respect of which or a substantial part of which is used in the film. In the same manner, the copyright in a sound recording shall not infringe the separate copyright in any work in respect of which or substantial part of which is used to make the sound recording. Sec.13(5): In respect of work of architecture, it is immaterial what is the actual construction.

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