Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

24 June 2010

The Exhaustion of Rights and Indian Copyright Law

Abstract:

(This post is by Nandita Saikia and was first published at LawMatters.in.)

An overview of the application of the Doctrine of First Sale in respect of different kinds of copyrighted works under the Indian Copyright Act, and an analysis of the relevant provisions. This paper argues that the Doctrine of First Sale applies in different ways to the various kinds of works protected by copyright, and that the first sale of a copy of a work does not automatically result in the exhaustion of rights.

Keywords: Copyright, First Sale, Exhaustion, Films, Music, Software, Books, India

Download the entire article here: SSRN.

Introduction

Copyright protects certain classes of works such as literary works, musical works, artistic works, dramatic works, computer software, sound recordings and films. Copyright in respect of each work generally subsists for a period of sixty years after the death of its author. However, copyright is intangible, and the works protected by copyright cannot and do not exist in isolation. Each of these works is given a tangible form through one medium or the other. For example, cinematograph films could be in the form of CDs or DVDs, while literary works may be in the form of hard copies as books or in electronic form such as, possibly, in the form of a .pdf file.

Copyright in the work itself would subsist for the entire term of copyright (i.e. life plus sixty), and during the term of copyright, the owner of the work has the exclusive right to perform certain actions and restrain others from performing those actions. These are the actions which are often referred to as the “bundle of rights” which are together considered to be copyright.

In the Indian Copyright Act, 1957, (the “Act”), this bundle of rights is defined in Section 14. The precise rights which the owner enjoys in respect of a work would vary depending on the nature of the work. However, regardless of the kind of work, it is, in broad terms, accurate to state that (a) the owner would be the only person entitled to exercise (or authorise the exercise of) the rights listed in Section 14 of the Act, and (b) one of the rights in Section 14 is the right to issue copies of the work to the public and/or communicate the work to the public.

Although copyright itself subsists for life plus sixty years, when a copy of a work is made available to the public, the copy may comprise both a tangible and an intangible element. For example, when a film is sold in a shop, the “film” comprises both a tangible disc and the film itself which is intangible. After the sale of the disc, copyright would continue to subsist in the intangible element (i.e. the film) for the entire term of copyright, and the doing of any act which is the exclusive right of the copyright owner under Section 14 would amount to copyright infringement in terms of Section 51 which states, in clause (b)(iv), that the copyright in a work is infringed when any person imports any infringing copies of the work into India. The only exception to this is if the importation is of one copy of the work for the private and domestic use of the importer.

However, as mentioned earlier, a work, in such circumstances would not exist in isolation but in conjunction with a medium such as a disc or book. Although there is absolutely no debate that the copyright of the owner would continue to subsist in the work after the sale of a copy of that work, there has been a reasonable amount of controversy regarding the legal status of the copy of the work which had been sold, and whether or not the owner of the copyright in the work could control subsequent sales.

Download the entire article here: SSRN.

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