India: Enforceability Of Foreign Country Registered / Unregistered Copyright

Last Updated: 3 April 2018
Article by S.S. Rana & Co. Advocates
Most Read Contributor in India, September 2018

The term 'foreign work' is not defined under the Copyright Act, 1957, (hereinafter referred to as the 'Act'). However, to determine "foreign work", it can be reasoned that any work which does not qualify as "Indian Work" under Section 2 (l) of the Act is classified as "foreign work". In order to protect Indian works in foreign countries, India has become a member of the following international conventions on copyright and neighboring (related) rights:1

  1. Berne Convention for the Protection of Literary and Artistic works
  2. Universal Copyright Convention
  3. Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms
  4. Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties
  5. Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

The aim of all the copyright conventions / agreements / treaty is focused on the principle that the original creativity or works of the mind, which is the subject matter of protection under copyright law, should be disseminated and distributed regardless of their national borders.2 Therefore, the simple principles on which the major Copyright Conventions are based are:3

  1. Principle of National Treatment - Works originating in one of the Contracting States (that is, works the author of which is a national of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals.
  2. Principle of "Automatic" Protection - This means that such national treatment shall not be depending on any formality, i.e. Protection must not be conditional upon compliance with any formality.
  3. Principle of "Independence" of Protection - This means that the enjoyment and exercise of the rights in a protected work in a certain country is independent of the existence or nonexistence of protection in the country of origin or in any other country.

The International Copyright Order, 1999, was formulated to provide the authors / owners of the foreign copyright works to enforce protections beyond the national limits. The above said principles are the basic foundations of the International Copyright Order 1999.

Under the Indian Legislation, copyright of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works.4 The benefits granted to foreign works will not extend beyond what is available to the works in the home country and that to only on a reciprocal basis, i.e., to say the foreign country must grant similar protection to works entitled to copyright under the Act.5

In the matter regarding Registration of Copyright Application Titled "In Grief then in Joy, We Wed", wherein on scrutiny of the application with Diary Number 11596/2015-CO/L, it was found that the work submitted for registration under the Copyright Act 1957, was already registered in United States of America, and hence a discrepancy was raised. The Learned Registrar of Copyrights, vide order dated January 16, 2018, observed that "In accordance to the provisions of Section 40 of the Copyright Act, 1957, read with International Copyright Order 1999 states that the copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works are protected in India. A list of such countries are made available in the Part 1 of the Schedule mentioned under the International Copyright Order 1999."

Further, the Learned Registrar of Copyrights also agreed that the Applicant, if they wish so, may also seek registration of their works in India by complying with the requirements of the Copyright Act 1957 and Copyright Rules 2013.

Since the foreign works, as under the International Copyright Order 1999, are protected under the Copyright Act 1957, and therefore the provisions with respect to enforcing the rights under the Copyright Act is also available to the foreign copyrights holders. Paragraph 3 of the International Copyright Order 1999, extends the protection under the Copyright Act 1957 to the foreign works and therefore, both civil and criminal remedies for infringement under Chapter XII and Chapter XIII are available to the foreign works. The Copyright Act of India provides dual legal machinery to the right holders for enforcing their rights. The enforcement is possible through -

  1. The Intellectual Property Appellate Board and
  2. The Courts.

The Copyright Act, 1957, initially established a quasi-judicial body called the Copyright Board, which is now merged with Intellectual Property Appellate Board (hereinafter referred to as the 'Appellate Board') pursuant to Finance Act 2017, with effect from April 01, 2017. The Appellate Board is assigned with the task of adjudication of disputes relating to copyright registration,6 assignment of copyright,7 grant of licenses in respect of works withheld from public,8 unpublished Indian works,9 production and publication of translations,10 and works for certain specified purposes.11 Further, it also hears cases in other miscellaneous matter instituted before it under the Copyright Act, 1957.

Similarly, as per Section 62 of the Copyright Act 1957, the District Courts have jurisdiction in the matters pertaining to the infringement of Copyright in any work or the infringement of any other right conferred by the Copyright Act. However, an appeal against the order of the IPAB can be preferred before the Hon'ble High Court having the jurisdiction.

Footnotes

1. Government of India - Ministry of Human Resource Development (Department of Secondary Education and Higher Education), A Hand Book Of Copyright Law, available at http://copyright.gov.in/documents/handbook.html.

2. WIPO National Workshop For Judges, International Legal Framework For The Protection Of Copyright And Related Rights (December 13 to 15, 2004), WIPO/IP/JU/RYD/04/1, Pg 4.

3. WIPO National Workshop For Judges, International Legal Framework For The Protection Of Copyright And Related Rights (December 13 to 15, 2004), WIPO/IP/JU/RYD/04/1, Pg 5; WIPO, Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886), available at http://www.wipo.int/treaties/en/ip/berne/summary_berne.html.

4. Government of India - Ministry of Human Resource Development (Department of Secondary Education and Higher Education), A Hand Book Of Copyright Law, available at http://copyright.gov.in/documents/handbook.html.

5. P. Narayanan, Intellectual Property Law, 4th ed., p.201 (2004).

6. SECTION 6, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

7. SECTION 19A, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

8. SECTION 31, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

9. SECTION 31A, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

10. SECTION 32, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

11. SECTION 32A, THE COPYRIGHT ACT. 1957 (ACT 14 OF 1957).

For further information please contact at S.S Rana & Co. email: info@ssrana.in or call at (+91- 11 4012 3000). Our website can be accessed at www.ssrana.in

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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S.S. Rana & Co. Advocates
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