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07 Feb 2018

2017 – A Year in Review – Copyrights Law

The year of 2017 saw some major developments in the Indian Copyright system, of which the merger of the Copyright Board with the Intellectual Property Appellate Board (“IPAB”) through the Finance Act, 2017 (came into force on 1st April 2017) was a significant highlight. As part of the Finance Act, 2017, certain sections of the The Copyright Act, 1957 (hereinafter, “the Act”) and The Trade Marks Act, 1999, were also amended, to primarily replace the Copyright Board with the Appellate Board, and related references, with a view to create a single forum.   

The Indian Performing Rights Society (‘IPRS’) was re-registered on 28th November 2017 as a Copyright Society with Mr. Javed Akhtar as its Chairman and Mt. Achille Forler as its Permanent Advisor; in furtherance to the long pending mandate that was created under the Copyright (Amendment) Act, 2012.

Other notable changes were included notifications from The Copyright Office, which detailed the following:

  1. To continue to keep the digital era alive, the Copyright Office has undertaken new reforms such as publishing every entry made in the register of copyrights u/s 45 of the Act; Correction of every entry made u/s 49 of the Act; and every rectification ordered u/s 50 of the Act on their website (http://copyright.gov.in) on a monthly basis.
  2. In addition to the above, the Copyright Office would publish on the first Friday of each month, a list of applications received for registration of copyrights. The publication would be treated as notice to every person who claims or has any interest in the subject matter of the copyright. This publication can be treated as a notice in two folds: (i) If no objections are received within 30 days of the publication, then the applications would be examined for necessary action as required. (ii) Any work/documents yet to be received from the Applicant of the copyright applications is required to be submitted within 30 days from the date of such publication, failing which the application would be abandoned, with a liberty to file a fresh application.
  3. The later notification of 4th December 2017, was similar to the notification dated 1st September 2017, with the only difference of publishing the list applications on a weekly basis every Monday, rather than on a monthly basis.

 Notable Case Laws:

Some of the landmark Copyright cases for the year 2017 would be:

Neetu Singh Vs. Rajiv Saumitra and Ors[1]: The Delhi High Court looked into the issue of ownership in a Copyright involving an employer and an employee. The Court specifically looked into the terms of employment and held that although the plaintiff was working as a Director of the Company when the literary works were made, however the defendants had not placed on record any material to show that such literary work was authored as a part of the duties and obligations of a Director of the Company. Therefore, the Court held that in the absence of any terms and conditions describing the literary work to also be a part of the duties and obligations of the plaintiff in her capacity as a Director of the Company, the plaintiff remained the owner of copyrights in such works, and granted an injunction.

Cello Household Products Vs. Modware India[2]: The Bombay High Court while deciding a suit for design infringement and passing off involving the plaintiff’s plastic bottle, rejected the contention of the Defendant that a bottle is a bottle, since it is not possible to accept that no vertical cylindrical fluid container can either be original and novel. Further, the Court also stated that mosaicking cannot be a defense to a charge of infringement of a registered design; since there is no requirement of law in infringement or passing off that every single aspect of the design must be entirely newly concocted or unknown, if that were the case, there would be no new or novel design at all. Holding that the Defendant was attempting to deceive consumers into believing that its products came from the plaintiff, the Court granted the reliefs in favour of the plaintiff.

Kajal Aggarwal Vs. The Managing Director, V.V.D. and Sons P. Ltd[3]: The Madras High Court held that the term of the copyright in the commercial cinematography film is 60 years as stipulated under Section 26 of the Copyright Act, and the term cannot be restricted through any agreement, as the same would be in conflict with the statutory provisions of the Act.

Trimurti Films Pvt. Ltd Vs. Super Cassettes Industries Pvt. Ltd. and Ors[4], The Division Bench of Bombay High Court dismissed the appeal filed by the Defendants against the interim injunction given in favour of the Plaintiff. The contention of the Plaintiff was that the Defendants without their prior permission had created a remix version of the song ‘Keh Doon Temhe’ from their 1975 movie ‘Deewar’. The Plaintiff also submitted that they had granted rights only to make and sell gramophone records of the song to Polydor of India Ltd. (now, Universal Music India Pvt. Ltd.). However, the Defendants argued that they have received an absolute assignment of the sound recording rights from Universal Music India Pvt. Ltd. which also included the right to use the underlying works in the song such as lyrics and tune. The Single Judge ruled in the favour of Plaintiff holding that the sound recording rights did not include the underlying rights in lyrics or the music and the same was upheld by the Division Bench.

Zee Entertainment Enterprises Ltd Vs. Sony Pictures Networks India Pvt. Ltd and Ors[5], The Plaintiff filed a suit for copyright infringement and passing off in the Bombay High Court against the defendants for allegedly copying their talent show titled “India’s Best Dramebaaz”, and in turn infringing the copyrights in the “Concept Note” and “Production Bible”. The Court on analyzing both the Plaintiff’s and Defendant’s concept notes specifically held that “the manner in which the selections are made and trajectories of the two shows are quite distinct. The facts that both feature children, both seek out children with acting talent, both seek out children with acting talent from different cities, and both seek out the best of these is hardly something in which anyone can claim any copyright.” Therefore, the Court dismissed the case and refused to grant any relief to the Plaintiff.

Developments anticipated in 2018

Overall, the new initiatives introduced by the Copyright Office such as publishing every week the list of all new Copyright applications, publishing the list of all new entries in the Register and publication of list of applications for which work/documents awaited are expected to clear the long-pending backlogs in the Copyright Office in processing of applications and also to facilitate the overall functioning of the Copyright Office to be more transparent, systematic and stakeholder friendly.

[1] 2017 (72) PTC 47

[2] 2017 SCC Online Bom 394

[3] Application No. 456 of 2017 in C.S. No. 635 of 2011 (MAS)

[4] Notice of Motion (L) No. 515 of 2017 in Commercial Suit (L) No. 459 of 2017 (Bombay Highcourt)

[5] Notice of Motion (L) No. 68 of 2017 in Commercial Suit (L) No. 74 of 2017 (Bombay Highcourt)

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