Law Matters

Note It is not entirely impossible to construct academic arguments (of questionable practical validity) in favour of the legality of private, non-commercial downloading under the Indian Copyright Act, 1957, through Sections 39(a) and (c) read with the definition of 'broadcast' in Section 2(dd), as well as through Section 52. (The applicability of any Section 51 'exception' is especially doubtful.)  Sections 39 and 52, which constitute exceptions and limitations to infringement under Indian statutory law, allow for the making of recordings of broadcasts, and for the making of copies of works, in specified circumstances and to a certain extent. The first exception to copyright infringement contained in Section 52 of the Copyright Act allows ‘fair dealing' with certain works per se — presumably, downloading works in their entirety would not be fair. This is buttressed by the fact that Section 14 of the Copyright Act, which explains the meaning of copyright in works...

Consider an upcoming band comprising independent members who are authors and performers. They compose their own lyrics, and write their own music, and sing their own songs. (Ignore, for the purpose of this discussion, the fact that many bands do not have vocalists.) In this hypothetical band, for the most part, the lyricist writes the lyrics although on occasion, a guitarist may walk up to him with a suggestion that is incorporated in the final version of the lyrics. In such a situation, both the lyricist and the guitarist would be authors of the lyrics in question; if their contributions were indistinguishable, they would be joint authors, and if their contributions were distinguishable, they would be co-authors of the lyrics. In both cases, the law would provide no guidance whatsoever on the revenue shares to be accorded to the lyricist and to the guitarist for their contributions. Further, the band (and the guitarist himself!) may not even consider the guitarist to be an autho...

It has been proposed to amend the Copyright Act so as to clarify the definition of “performers” and their rights. The definition of a “performer” in Section 2(qq) is an inclusive definition which states that a performer “includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance”. The Bill proposes to limit this definition by appending a Proviso to the Section which would disable extras in films from claiming all but one of the rights granted to performers by the Copyright Act. This Proviso is intended to state: “Provided that in a cinematograph film a person whose performance is casual or incidental in nature and, in the normal course of practice of the industry, is not acknowledged anywhere including in the credits of the film, shall not be treated as a performer except for the purpose of clause (b) of section 38B.” Clause (b) of Section 38B is a new provision which is proposed ...

(This post was inspired by a conversation between @gkjohn and @nsaikia /myself. It is about websites which accept/solicit UGC only to state that all UGC belongs to themselves.) An uncle once wrote, to his nephew, something to the effect of, "Unless I hear from you to the contrary, I shall presume that you have sold me your horse for the amount I have decided." This was in the 19 th century, and the matter not only found its way to court but also went on to become a seminal case in contract law. 1 Quite reasonably, the uncle failed to convince the court that he had legitimately bought the horse from his nephew. Fast forward to the 21 st century. The sale of horses is not generally at issue, but while the subject matter may have changed, the substance of the argument may often be considered to be similar. What are the legalities involved in not only announcing that one owns the property of another person but in doing so while being factually accurate? In fact, going a s...

One question which arises with reference to the nature of copyright infringement is whether or not it is comparable to theft. While many rights holders describe infringement as being analogous to theft, using words such as “piracy” and “pirates” to describe copyright infringement and those who commit it, the position that 'infringement is comparable to theft' is open to strenuous debate, and even more so is the position that 'infringement is comparable to piracy (with all its attendant insinuations)'. In India, to have committed theft according to the letter of the law, one must have ‘intended to take dishonestly any movable property out of the possession of any person without that person’s consent, and have moved that property’. As such, if one were to consider the legal definition alone, it is clear that despite the fact that copyright is considered to be movable property, copyright infringement could not possibly be considered to be analogous to theft simply becaus...

(This post is an extract from Films and the Copyright (Amendment) Bill, 2010 .) International agreements such as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1 avoid the issue of exhaustion. As a general rule, the first sale doctrine which is closely related to the exhaustion of rights states that once a copy of a work is sold by or with the consent of the owner of the work, the owner cannot control subsequent sales. Thus, once a copy of a book is sold, the owner of the copyright in the book cannot prevent that copy of the book from being resold. This is what allows the second hand market in books to flourish. In India, the scope of the applicability of the doctrine of exhaustion primarily revolves around interpreting Section 14 of the Copyright Act, 1957. However, a proposed amendment to the definition of an ‘infringing copy’ in Section 2(m) could have the effect of completely changing the status quo. It has been proposed to amend Section 2(m) o...

Copyright law protects the original expression of an idea when that expression takes the form of a protectable work such as a book or a musical work. In addition to protecting the original work, copyright law also proscribes persons from making adaptations of protected works without the permission of the owner of the copyright in the original work. Although the adaptation may be eligible for copyright protection in its own right, unless either the original work which has been adapted in it is in the public domain, or the necessary copyright licence has been obtained from the owner of the copyright in the original work, the adaptation would infringe the copyright in the original work. There are, however, divergent opinions whether any copyright would subsist in the adaptation in the context of copyright theory. One opinion is that if a person has no right to “use” the original work, he would have no right in an adaptation of that original work. The other states that the adaptation...

Introduction Many countries across the world have explicit provisions which deal with audio, visual and audio-visual recordings to allow for fair use of such recordings in certain ways in conjunction with ‘new’ technologies. In India, the position is not entirely clear because the Copyright Act, 1957, does not explicitly allow copies of copyrighted works being made. This paper, however, argues that it is, to an extent, possible to read such provisions into Indian copyright law. US: AHRA and Somy Betamax In the US, AHRA, 1992 (i.e. the Audio-Home Recording Act) amended Title 17 of the US Code which deals with copyright by incorporating into it Chapter 10: Digital Audio Recording Devices and Media. This Chapter balances the rights of copyright owners (who are, in this context, primarily music companies) with the interests of consumers and companies which manufacture, distribute and sell electronic equipment which enables private recording to consumers. This has been achieved by gra...