Copyright Basics

Copyrights is a bundle of exclusive rights given to the owner to financially or otherwise reward him for his skills & efforts. The exclusive rights of the owner of such property are vested with its ‘author’. It is observed that to own property in any idea, the author has to give it some tangible form. There can be no copyright to ideas.

Who is an ‘author’?
Section 2 (d) of the Copyright Act, 1957 defines as to the meaning of the term ‘author’. It states, "author" means:
in relation to a literary or dramatic work, the author of work;
in relation to musical work, the composer;
in relation to an artistic work other than a photograph, the artist;
in relation to a photograph, the person taking the photograph;
in relation to a cinematographic film or sound recording, the producer; &
in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created.

It can be said that a person who initiates to give a form to his ideas is an ‘author’ under the act. Authorship may be with respect to a literary work, a photograph, a musical piece or a play, a drawing or a cinematograph film.

Literary work
The act provides an inclusive definition to the term ‘literary work’. As per section 13 (1) (a) of the act, it includes tables & compilations.
As was observed in a famous case1 ‘literary work’ cover work which is expressed in print or writing, irrespective of the question whether the quality of style is high.
The author to own property in a literary work, has to prove the ‘originality’ in the work. In case of copyrights, the degree of ‘originality’ required is ‘low’. What is required to be original, is not the idea but the expression of the inventive idea or thought. The thought may not be original or novel.

‘Infringement’ of original work
Section 51 if the Copyright Act, 1957, describes ‘when a copyright is said to be infringed’. Infringement may be through direct or indirect use of the copyrighted work. No ‘intention’ to infringe is to be proved against the copier. Therefore not the intention or motive but only the fact of infringement of a work is enough to attach liability on the wrongdoer.

The test of ‘infringement’ of a work is whether one charged with the infringement made in independent production or made a substantial & unfair use of the plaintiffs work. To take an example - in case of a literary property, copying may be in whole or in part, either in haeca verba or by colourable variation.

In the recent case of Eastern Book Co. & Ors. v. Deepak Kapoor & Anr., it was observed that; copying of the ‘head notes’, ‘footnotes’, ‘short notes’ & ‘editorial notes’ was not disputed. But the defendants pleaded that a copy of ‘edited text of judgements’, from the plaintiffs work, cannot be held to be copyrighted. But the case was settled in an amicable compromise by agreeing to remove the text from their database.

In another case, which also resulted in a settlement, Himalaya Drug Co. v. Sumit;;the facts & decision of the case is as follows: Plaintiffs were running a herbal database through their website http://www.thehimalayadrugco.com & the defendants were running a website of http://ayurveda.virtualave.net the defendants infringed upon the Himalaya Drug Company’s website, specially their herbal database (verbatim). They copied not only the preliminary information about each herb but also the detailed monograph. Held, it was an act of infringement upon the plaintiffs effort, skill & expense gone into the creation of the website. The ‘trade dress’ rights in the website of the plaintiff have also been infringed. The court granted relief by way of ex-parte order & also punitive/ compensatory damages to the plaintiff.

Rodney D. Ryder