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1
Seminar Paper for Media Law On
"Media And Copright Law: A thin line of Division"
By : Rahul Meena
Roll No. 933
Date: 7/April/2016
Introduction
The sweat of a mans brows, and the exudations of a mans brain, are as much
a mans own property as the breeches upon his backside.
Thereby meaning that whatever an individual produces by the application of his labour, intellect
or skill is his property and nobody has a right to deprive him of such propert y.
The word Copyright is derived from the expression Copier Of Words first used in the context,
according to Oxford Dictionary in 1586. The word Copy is presumed to date back to 1485 A.D.
(approximate date) and was used to connote a manuscript or other matter prepared for printing.
Word Copy according to Blacks Law Dictionary means transcript, imitation, reproduction of
an original writing, painting, instrument or the like. Copyright according to Blacks Law
1 Laurence Sterne in his novel The Life and Opinions of Tristam Shandy.
Dictionary is the right in literary property as recognized and sanctioned by positive law. An
intangible incorporeal right granted to the author or originator of certain literary or artistic
production whereby he is invested for a specified period with the sole and exclusive privilege of
multiplying copies of the same and publishing and selling them.
Copyright as defined in the Oxford English Dictionary is an exclusive right given by law for a
certain term of years to an author, composer, etc. or his assignee to print, publish and sell copies
of his original work. Copyright in some form seems to have been recognized in ancient times.
The Roman Law adjudged that if one man wrote anything on the paper of another, the writing
should belong to the owner of the blank material, meaning thereby the mechanical operation of
writing by the scribe deserved to receive satisfaction.
2 www.usconstitution.net/xconst_A1Sec8.html
B. INDIAN SCENARIO:
India being a member of two international conventions on copyright, namely, the
Berne Convention for Protection of Literary and Artistic Works (Paris Act, 1971) and the
Universal Copyright Convention, 1952. After independence, the Copyright Act, 1957
was enacted, to give effect to the recommendations of these two conventions. The Act was
amended in 1983, 1984, 1992, 1994 and in 1999. The Indian Copyright Act, 1957 is
in accordance with Indias obligations under the Agreement on Trade Related
Intellectual Property Rights (TRIPS).
Section 14 of the Copyright Act, 1957 defines copyright as:
A property right in an original work of authorship (such as a
liter ary, m us ical, artistic, ph otograph ic, a film work or a
com puter
programme)
fixed
in
any
tangible
medium
of
Generally, all kinds of creative endeavors may be copyrighted. That includes literary works
(fiction and non-fiction, prose and poetry), musical works (and any accompanying words),
dramatic works (including music), choreographic works and pictorial, graphic and sculptural
works (including both photographs and paintings), computer software, maps, architectural
designs, recordings, motion pictures and radio or television productions (whether
dramatic or news/documentary in nature).
However, there are some very important exceptions to this rule. Probably the most
important one for the mass media is that the news itself cannot be copyright ed, although a
description of a news event can be copyrighted. The first reporter to reach the scene of a
plane crash, for instance, cannot prevent others from reporting the fact that the plane
crashed or the details of how it happened. The most that this re porter can deny to others
is his or her account of the event. Others may tell the story in their own words.
Thus, it is commonplace for journalists to rewrite each others stories. When ever one
reporter scores an important Scoop, others quickly pick up the story, carefully putting it
in their own words and perhaps giving credit to the original source. Even though this is
permissible under copyright law, it should be emphasized that one news medium cannot
systematically remove all of its news from a competitor to avoid having to employ its
own news staff. To do that is called unfair competition. Systematic News Piracy as it has
been called, is not permissible.
distribute copies,
perform the work or display it to the public. Anyone else who does these things is guilty of
copyright Infringement unless what that person does qualifies as a fair use. To prove an
infringement, the copyright owner must show Substantial Similarly between the original work
and the allegedly infringing work. The owner must also show that his/her copyright is Valid
and the infringer had Access to the original work and thereby, violated one of the exclusive
rights of the author. When the copyright eventually expires the work then falls into the
Public Domain, at that point, the once exclusive rights belongs to everyone.
C.
INFRINGEMENT OF COPYRIGHT
INDIAN SCENARIO:
Section 51 of the Copyright Act, 1957 lays down various acts, the doing of , any of which
without a licence from the owner of the copyright or the statutory authority or in
contravention of the terms of such a licence would constitute an infringement of the
copyright in a work. Section 52 enumerates various acts, the commission of which would
not constitute such infringement. These are in the nature of exceptions to the exclusive
rights conferred upon the copyright owner and also serve as defences in an action for
infringement. The remedies for infringement are laid down under Sections 54 to 58 of
the Act.
On a combined reading of Sections 51 and 52, the following acts amount to acts of
infringement of copyright when committed by a person not authorized by licence from
In R.G. Anand v. Deluxe Films3, Fazal Ali, J laid down the following tests for infringement:
words, in order to be actionable the copy must be a substantial and material one
which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a
violation of copyright is to see if the reader, spectator or the viewer after having
read or seen both the works is clearly of the opinion and gets an unmistakable
impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the
subsequent work becomes a completely new work, no question of violation of
copyright arises.
5. Where however apart from the similarities appearing in the two works there are also
material and broad dissimilarities which negative the intention to copy the original
and the coincidences appearing in the two works are clearly incidental no
infringement of the copyright comes into existence.
6. Where, however, the question is of the violation of the copyright of stage play by a
film producer or a Director the task of the plaintiff becomes more difficult to
prove piracy. It is manifest that unlike a stage play a film has a much broader
prospective, wider field and a bigger background where the defendants can by
introducing a variety of incidents give a colour and complexion different from
the manner in which the copyrighted work has expressed the idea. Even so, if the
viewer after seeing the film gets a totality of impression that the film is by and large a
copy of the original play, violation of the copyright may be said to be proved.
U.S. SCENARIO:
Under the U.S. Copyright Act, 1976, there are three things which needs to be proved in order
to constitute infringement, they are:
1. The alleged infringer had some access to the authors work,
2. There is substantial similarity between the two works and,
3. That the copyright is valid and covers a legitimate, original work.
For the substantial similarity test to be met, there must be both similarity in the general ideas
underlying the two works (often called the Extrinsic Test for similarity) and similarity in
4 Copinger on Copyright, (12th Edn.) Para 458.
copyrightable aspects of the expression of those ideas (the Intrinsic Test for similarity).
However, after all of this legal analysis of what constitutes substantial similarity is completed,
the original copyright owner ultimately has to convince a judge or jury that the Average Person
(not just an expert) would see the new work as similar enough to have been pirated from the
original.
Fair use is a doctrine in United States copyright law that allows limited use of copyrighted
material without requiring permission from the rights holders, such as use for scholarship or
review.9The competing interests of the right holders and the users of copyright work rests on a
delicate balance and Copyright law maintains it with the help of fair use or fair dealing
provisions. Fair dealing is a formulation known to jurisdictions that evolved out of the British
common law copyright system. These provisions provide protection for materials taken for
8 The Copyright Act, 1957, Section 13 (1) (a).
9 http://en.wikipedia.org/wiki/Fair_use
research or study, criticism or review, reporting the news and for purposes related to judicial
proceedings.10
INDIAN SCENARIO:
In India, Section 52 of the Copyright Act, 1957 explains what all are not legally infringements.
The section begins with fair dealing as one of the exceptions of infringement. Accordingly, fair
dealing with a literary, dramatic, musical or artistic work for the purposes of (i) research or
private study; or (ii) criticism or review, whether of that work or of any other work does not
constitute infringement.
The making of not more than three copies of a book (including a pamphlet, sheet of music, map,
chart or plan) by or under the direction of the person in charge of a public library for the use of
the library if such book is not available for sale in India, the reproduction, for the purpose of
research or private study or with a view to publication, of an unpublished literary, dramatic or
musical work kept in a library, museum or other institution to which the public has access:
Elaborating the context of studies, the Section further holds that the reproduction of a literary
work...(i) by a teacher or a pupil in the course of instruction or (ii) as part of the question to be
answered in an examination; or (iii) in answer to such question. (Sec. 52 (1) (h) of Copyright
Act) also comes under exception to copyright infringement.
The most important question involved here is that when such a usage amounts to infringement.
In Ramesh Chaudhary & Ors. v. Ali. Mohd11, it was held that:
Verbatim lifting of the text to the extent of copying the complete set of
exercise and the key to such exercises can in no manner be termed as a
review, criticism or a guide to the original work and thus it amounts to
infringement.
Similarly, in Syndicate Press of University of Cambridge & Anr. v. Kasturi Lal & Sons 12, which
also involved the verbatim lifting of the text to the extent of copying the complete set of exercise
10 http://en.wikipedia.org/wiki/Fair_dealing
11 AIR 1965 J& K 101.
and the key to the exercise. And hence, the court observed that the act of the defendants could
not be termed to be a review, criticism or a guide to the original work. The Court also opined
that:
While the universal nature of knowledge and its dissemination freely is a
approving concept but it must not transgress rights of an author guaranteed
by the Copyright Act. Those who possess the ability to create also possess the
right to assert that their creation be recognized and identified with them. They
have the right to proclaim that no other person infringes upon their claim of
originality and the right to limit the use and prevent the abuse of their
creation.
U.S. SCENARIO:
To decide if a given use of a copyrighted work is a fair use, the 1976 Copyright Act
provides for four factors which needs to be considered:
1. The purpose and character of the use, including whether it is for profit or for
a non-profit educational purpose,
2. The nature of the copyrighted work,
3. The percentage of the total work that is used and,
4. The effect the use will have on the value or profit-making potential of the original
work.
college classes. In 1991 a federal court ruled that Kinkos Graphics, a major
producer of these course packets, had to pay royalties for virtually all of the
copyrighted materials (such as magazine or journal
Williams & Wilkins v. U.S.15- This case was initiated by a publishing house whose
medical journals were being photocopied on a massive scale by federally funded
medical libraries, so that the libraries could avoid purchasing additional copies. The
publishing house lost its case as in 1973 a federal court said that the dissemination
of medical knowledge was so important that this copying was a fair use. The case
was appealed to the U.S. Supreme Court, but the decision of the federal court
remained unchanged.
14 74 F.3d 1528.
15 487 F.2d 1345, 420 U.S.