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30 Aug 09

Chennai : 26665 Pirated videos seized

As many as 26,665 VCDs containing pirated version of latest Tamil and other language films were seized in a State-wide raid conducted by the Crime Branch CID police. Under the instructions of the Additional Director General of Police (Crimes) R. Sekar, special teams arrested 41 persons for indulging in the manufacture and sale of pirated VCDs.

Besides the VCDs, computers and electronic gadgets used by the suspects were also seized, a press release said.

www.hinduonnet.com/...print.pl - Preview

piracy raid ip copyright

12 Apr 09

Google Terms of Service

www.google.com/...TOS - Preview

4.3 As part of this continuing innovation, you acknowledge and agree that Google may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at Google’s sole discretion, without prior notice to you.
Google reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.
2 more annotations...
- Other than the limited license set forth in Section 11, Google acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under these Terms in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with Google, you agree that you are responsible for protecting and enforcing those rights and that Google has no obligation to do so on your behalf.
- You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Services. By submitting, posting or displaying the content you give Google a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive licence to reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services. This licence is for the sole purpose of enabling Google to display, distribute and promote the Services and may be revoked for certain Services as defined in the Additional Terms of those Services.
  
  11.2 You agree that this licence includes a right for Google to make such Content available to other companies, organizations or individuals with whom Google has relationships for the provision of syndicated services, and to use such Content in connection with the provision of those services.
  
  11.3 You understand that Google, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this licence shall permit Google to take these actions.
  
  11.4 You confirm and warrant to Google that you have all the rights, power and authority necessary to grant the above licence.

29 Mar 09

M/S ENTERTAINMENT NETWORK (INDIA) LTD. v. M/S SUPER CASSETTE INDUSTRIES LTD.

openarchive.in/31596.htm - Preview

compulsory license copyright Supreme-Court

As in the instant case, the repertoire of SCIL and PPL are available to the public inasmuch as these copyright owners society have entered into voluntary licenses with All India Radio and some other FM Radio Broadcasters, the provisions of Section 31 of the Act were not applicable.
(vii) As both PPL and SCIL called upon the broadcaster to enter into licenses and were willing to license their repertoire on mutual agreed terms, it cannot be said that there has been a refusal on their part to grant licenses. In the present case, no occasion arose for grant of a compulsory licence inasmuch as the only relief which could be granted by the Copyright 23 Board was to direct the Registrar of Copyrights to grant to the complainant a license to "communicate the work to the public" by broadcast, which is already made available to the public by broadcast through All India Radio and other radio broadcasters.
ection 31(1)(b) does not create any entitlement in favour of an individual broadcaster, but merely provides a mechanism by which an Indian work that has been withheld from the public is made available to the public by broadcast.
39 more annotations...
- The Board is not expected unlike the statutes of other countries to go into the reasonableness or otherwise of the tariff fixed for grant of licenses.
- The Act, having used different words `compensation' and `royalty', Section 3 signifies a lump sum amount to be paid to bring back the work into the pubic domain. It also goes to show that it is a one time exercise.
- Whether the Copyright Board has jurisdiction under Section 31 (1)(b) of the Copyright Act, 1957 to direct the owner of a copyright in any Indian work or a registered copyright society to issue compulsory licences to broadcast such as works, where such work is available to the public through radio broadcast?
  (ii) Whether in any event such a compulsory license can be issued to more than one complainant in the light of Section 31(2)? 25 (iii) What would be the relevant considerations which the Copyright Board must keep in view while deciding on;
  (a) Whether to issue a compulsory license to a particular person; and
  (b) The terms on which the compulsory license may be issued, including the compensation?
- communication to the public by broadcast of such work or in the case of a sound recording the work recorded in such sound recording on terms which the complainant considers reasonable, the Copyright Board, after giving to the owner of the copyright in the work a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied that the grounds for such refusal are not 38 reasonable, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine; and thereupon the Registrar of Copyrights shall grant the licence to the complainant in accordance with the directions of the Copyright Board, on payment of such fee as may be prescribed.
- There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. A copyright, however, unlike a trade mark is a right created under the Act as is evident from Section 16 thereof. When an author of a copyright and other claims a copyright, it is subjected to the provisions of the Act.
- Gramophone Company of India Ltd. v. D.B. Pandey [(1984) 2 SCC 534 at 549, this Court held: "An artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. So highly is it prized by all civilized nations that it is thought worthy of protection by national laws and international conventions relating to copyright."
- in the development of modern copyright laws, the economic and social arguments are given more weight in Anglo- American laws of common law tradition, whereas, in 47 Continental law countries with civil law systems, the natural law argument and the protection of authors are given first place.
- Whereas U.K., Australia, Singapore, U.S.A. have framed laws for grant of compulsory license and also constituted Tribunals for the purpose of overseeing the tariff for licensing, stricto sensu the Indian Act does not say so.
- It may, however, be necessary to consider that unlike other countries the broadcasting rights by themselves were introduced in India for the first time by inserting Section 37 in the year 1994.
- Monopoly in respect of sound recording is, as it appears from the tariff supplied to us by the respondent embrace within its field, Pop/Music Quizzes, Mobile DJ, Jukeboxes, Dance Teachers, Dance Centre/Studio, Exercise, Amateur Operatic & Dramatic Societies, Theatrical Productions, Temporary Camps/Shacks, Banquet Halls, Background Music- Guest Houses & Lodges, Hotels, Background Music- Public Houses & Cafes & Non AC Restaurants, Bankground Music - AC Restaurants, BARS, Background Music - Shops & Stores Premises, 51 Background Music - Hairdressing Salons & Beauty Parlours, Background Music - Clinics, Background Music - Nursing Homes & Hospitals, Background Music - Factories & Offices/Banks, Background Music - Waiting Rooms/Reception Areas, Background Music- Telephone Music on hold,Puppet/Magic Shows, Background Music- Theatres, Background Music - Cinemas, Background Music- Museums & Art Galleries, Background Music- Ten Pin Bowling Centres/Bowling Alleys, Background Music- Amusement & Pleasure Parks, Background Music - Amusement Arcades, Background Music - Casinos, Background Music - Gymnasiums, Background Music - Swimming Pools.
- `Radio Stations' to a small `Hairdressing Salon'. If the right of an author/society is so pervasive, is it necessary to construe the provisions under Section 31 of the Act having regard to the International Covenants and the laws operating in the other countries? The answer to the said question must be rendered in affirmative.
- nterpretation of a statute cannot remain static. Different canons and principles are to be applied having regard to the purport and object of the 52 Act
- Only because laws have not been amended, the same would not by itself mean that the purport and object of the Act would be allowed to be defeated. If the ground realities changed, the interpretation should also change. Ground realities would not only depend upon the new situations and changes in the societal conditions vis-`-vis the use of sound recording extensively by a large public, but also keeping in view of the fact that the Government with its eyes wide open have become a signatory to International Conventions.
- his Court has extensively made use of International law inter alia for the following purposes:
  (i) As a means of interpretation;
  (ii) Justification or fortification of a stance taken; 53 (iii) To fulfill spirit of international obligation which India has entered into, when they are not in conflict with the existing domestic law;
  (iv) To reflect international changes and reflect the wider civilization;
  (v) To provide a relief contained in a covenant, but not in a national law;
  (vi) To fill gaps in law.
- If the country is a signatory thereto subject of course to the provisions of the domestic law, the International Covenants can be utilized. Where International Conventions are framed upon undertaking 57 a great deal of exercise upon giving an opportunity of hearing to both the parties and filtered at several levels as also upon taking into consideration the different societal conditions in different countries by laying down the minimum norm, as for example, the ILO Conventions, the court would freely avail the benefits thereof. Those Conventions to which India may not be a signatory but have been followed by way of enactment of new Parliamentary statute or amendment to the existing enactment, recourse to International Convention is permissible.
- Furthermore, as regards the question where the protection of human rights, environment, ecology and other second-generation or third-generation rights is involved, the courts should not be loathe to refer to the International Conventions.
- mmence broadcast all that he has to do is to give an undertaking to pay a reasonable sum which in the event of dispute will be decided by a competent tribunal. Australian Law Under Section 109 of the Australian Copyright Act, the form adopted is in the same form as in
  (b) above.
- China has the form
  (a) above for domestic recordings. They however, follow the Berne Convention for International recordings.
- hese domestic recordings can be broadcasted on the radio or television without any licence or payment. Even a commercial broadcast is in form
  (b) above. Japan 60 Japan has form
  (b) above.
- Non-profit transmission of works already made public is exempted from paying any royalty. United Kingdom In U.K. statutory licensing and compulsory licensing exists. Copinger & Skone James clearly says : `In the case of a statutory licence the rate is fixed by law, in the case of a compulsyr licence the rate is left to be negotiated, but in neither case can use be refused or prevented'.
- he Act seeks to maintain a balance between the interest of the owner of the copyright in protecting his works on the one hand and the interest of the public to have access to the works, on the other. The extent to which the owner is entitled to protection in regard to his work for which he has obtained copyright and the interest of the public is a matter which would depend upon the statutory provisions.
- Whereas the Act provides for exclusive rights in favour of owners of the copyright, there are provisions where it has been recognized that public has also substantial interest in the availability of the works. The provisions relating to grant of compulsory license must be viewed having regard to the aforementioned competing rights wherefor an appropriate balance has to be stuck.
- The freedom to contract is the foundation of economic activity and an essential aspect of several Constitutional rights including the freedom to carry on trade or business guaranteed under Article 19(1)(g) and the right to property under Article 300A of the Constitution of India. But the said right is not absolute. It is subject to reasonable restrictions. Section 30 enables the owner of the copyright to grant any interest in the copyright by a license in writing signed by him or by his duly authorized agent. The underlying philosophy of the Copyright Act is that the owner of the copyright is free to enter into voluntary agreement or licenses on terms mutually acceptable to him and the licensee.
- A license passes no interest, but merely makes lawful that which would otherwise be unlawful. The Act also expressly recognizes the notion of an "exclusive license" which is 63 defined in Section 2(j). But, that does not mean, as would be noticed from the discussions made hereinafter, that it would apply in all situations irrespective of the nature of right as also the rights of others. It means a license which confers on the licensee, to the exclusion of all other persons (including the owner of the copyright) any right comprised in the copyright in a work. An exclusive licensee has specific rights under the Act such as the right to have recourse to civil remedies under Section 55 of the Act. This Scheme shows that a copyright owner has complete freedom to enjoy the fruits of his labour by earning an agreed fee or royalty through the issuance of licenses. Hence, the owner of a copyright has full freedom to enjoy the fruits of his work by earning an agreed fee or royalty through the issue of licenses. But, this right, to repeat, is not absolute. It is subject to right of others to obtain compulsory licence as also the terms on which such licence can be granted
- COMPULSORY LICENCE The scheme of the Act affirms the freedom to contract as being the primary machinery by which the copyright owner publishes his work through a voluntary license regime in terms of Section 30. Compulsory licenses are an exception to the general freedom of the copyright owner to contract
- t cannot be said to be an exception to the general rule in the strict sense of the term as the provisions relating to grant of license by owners of Copyright and compulsory licenses operate in different fields. It may be true that while passing an order for grant of compulsory licenses, the relevant factors as laid down therein must be 68 kept in mind which would include the right of the owner of the copyright as a part of the right of property, but where a statute is to be construed as a balancing statute, the situation may be different.
- What is the meaning of the word `refusal' The dictionary meaning of `refusal' whereupon reliance has been placed by Mr. Divan may, at the outset, be noticed
- n act of refusal depends upon the fact of each case. Only because an offer is made for negotiation or an offer is made for grant of license, the same per se may not be sufficient to arrive at a conclusion that the owner of the copyright has not withheld its work 70 from public. When an offer is made on an unreasonable term or a stand is taken which is otherwise arbitrary, it may amount to a refusal on the part of the owner of a copyright. When the owner of a copyright or the copyright society exercises monopoly in it, then the bargaining power of an owner of a copyright and the proposed licensee may not be same. When an offer is made by an owner of a copyright for grant of license, the same may not have anything to do with any term or condition which is wholly alien or foreign therefor. An unreasonable demand if acceded to, becomes an unconstitutional contract which for all intent and purport may amount to refusal to allow communication to the public work recorded in sound recording. A de jure offer may not be a de facto offer.
- If it is accepted that voluntary licenses have been entered into by the owners with All India Radio and some other Radio Broadcasters, then it is sufficient for closing the doors on another person to approach the Copyright Board. One may as well say that if it is provided to a satellite channel or a space radio, the same also would subserve the purpose for refusing to grant an application under Section 31 of the Act. A contextual interpretation of the provisions would lead us to consider the ground realities. F.M. radios are played for every city. The word `work' in the context of broadcast must be understood having regard to the fact that there are 150 F.M. licenses out of which about 93 are working. There are 300 broadcasters working in almost all the big cities in India. The word `public' must be read to mean public of all parts of India and not only a particular part thereof. If any other meaning 73 is assigned, the terms `on terms which the complaints considers reasonable' would lose all significance.
- he very fact that refusal to allow communication on terms which the complainant considers reasonable have been used by the Parliament indicate that unreasonable terms would amount to refusal. It is in that sense the expression `has refused' cannot be given a meaning of outright rejection or denial by the copyright owner. PPL and SCIL might have been called upon the broadcasters to enter into licenses and were willing to license their repertoire. But their contention was that if such terms are unreasonable, it amounted to refusal which would attract Section 31 of the Act. The word `communicate the work to the public by broadcast" is of significance. It provides for a mode of communication. Thus, only because a Registrar of a Copyright would be directed to grant a licence to communicate the work to the public by broadcast would not mean that only a single licence shall be granted.
- If a compulsory licence is granted only once covering every single part of the country, the same cannot be lead to a conclusion that no other person can approach the Board. Section 31(1)(b) in fact does not create an entitlement in favour of an individual broadcaster. The right is to approach the Board when it considers that the terms of offer for grant of license are unreasonable. It, no doubt, provides for a mechanism but the mechanism is for the purpose of determination of his right. When a claim is made in terms of the provisions of a statute, the same has to be determined. All cases may not involve narrow commercial interest. For the purpose of interpretation of a statute, the court must take into consideration all situations including the interest of the person who intends to have a licence for replay of the sound recording in respect whereof another person has a copyright.
- RIGHT TO PROPERTY - IS THE CONCEPT APPLICABLE An owner of a copyright indisputably has a right akin to the right of property. It is also a human right. Now, human rights have started gaining a multifaceted approach. Property rights vis-`-vis individuals are also incorporated within the `multiversity' of human rights. As, for example, any claim of adverse possession has to be read in consonance with human rights.
- What would be a public interest? Would it depend upon the facts and circumstances of each case and the provisions of the statute? 78 General meaning of the word "public policy" has always been held to be an unruly horse by this Court. [See Gherulal Parakh v. Mahadeodas Maiya and Ors. [1959 Supp (2) SCR 406]. This case was referred to in the recent decision of this court in Devinder Singh and Ors. Vs. State of Punjab and Ors. [AIR 2008 SC 261] The right to property, therefore, is not dealt with its subject to restrict when a right to property creates a monopoly to which public must have access. withholding the same from public may amount to unfair trade practice. In our constitutional Scheme of statute monopoly is not encouraged. Knowledge must be allowed to be disseminated. An artistic work if made public should be made available subject of course to reasonable terms and grant of reasonable compensation to the public at large.
- We wish the statute would have been clear and explicit. But only because it is not, the courts cannot fold its hands and express its helplessness. When such a complaint is made, it confers the jurisdiction upon the Board. It may ultimately allow or reject the complaint but it cannot be said that the complaint itself is not maintainable.
- The same, however, would not mean that only one person is entitled to have a licence for all time to come or for an indefinite term even in perpetuity. A licence may be granted for a 82 limited period; if that be so another person can make such an applicatioin. Sub-section (2) of Section 31 would lead to an anomalous position if it is read literally. It would defeat the purport and object of the Act. It has, therefore, to be read down. P purposive construction therefor may be resorted to.
- Furthermore, the court while interpreting a statute will put itself in the armchair of the reasonable legislature, all statutes must be presumed to be reasonable. It is now a trite law that literal interpretation should be avoided when it leads to absurdity.
- n this case, however, the meaning of the Statute is neither clear nor sensible. It is a statute where a purposive construction is warranted. It is a case where sub-Section (2) should be kept confined to clause (a) 86 for that purpose. The statute has to be read down. It is not a case of improper interpolation so as to take away a primary purpose of the legislative intent. It is expedient to give effect to the intent of the statute. This itself says that creases can be ironed out. While undertaking the said exercise, the court's endeavour would be to give a meaning to the provisions and not render it otiose. We are, therefore, of the opinion that Section 31(2) refers to case falling under clause (a) of Sub-section (1) of Section 31 and not clause (b) thereof.
- he general principle of grant of injunction came up for consideration before the Court of Appeal. Therein, it was held that an owner may exercise and exploit his proprietary right by licensing some and not others. He may charge whatever he wishes. Such is not the position in India.
- As it was a case of abuse, the Board had the jurisdiction to entertain any application for grant of compulsory licence. How far and to what extent appellant has infringed the right of the respondent is a matter which may be taken into consideration by the Board. A suit was filed and injunction was granted. Apart from the fact that the appellant offered to take a license held negotiations with the respondents in the suit as soon as it came to know that Super Cassettes is not a member of PPL, it gave an undertaking. Each case must be considered on its own facts. However, we do not approve the manner in which the Board has dealt with the matter. It has refused to examine the witnesses. It took up 89 the matter on a day for hearing which was fixed for production of witnesses. We, therefore, are of the opinion that the order of the Board should be set aside and the matter be remitted to the Board again for the consideration of the matter afresh on merit.

29 Oct 08

THE CHANCELLOR MASTERS and SCHOLARS of the University of Oxford Vs. Narendra Publishing House

courtnic.nic.in/...dhcqrydisp_J.asp - Preview

National Publishing guide books Oxford University Press fair dealing_fair use copyright

learned counsel appearing on behalf of the plaintiff,
contends that the defendants have indulged in a brazen word-to-word copying of
the questions, in the textbooks. The plaintiff, it was urged, had given answers
to the questions in the exercises, but did not provide the detailed step-by-step
process to arrive such answers
He argued that the questions form a valuable and central part of
the work, and their substantial copying by the defendants amounts to violation
of the plaintiff?s copyright. He submitted that authors of the guides have saved
time and money by relying on the plaintiff?s work and their use of the
?original? questions is not incidental. He further argued that guides compete
with the original textbooks for market share, and are prepared and sold for
commercial purposes
71 more annotations...
- University London Press v. University Tutorial Press [1916] 2 Ch. 601, to
  
  assert that question papers are literary works and that copyright could vest in
  questions. He argued that though there can be a pool of common knowledge and
  questions from which the questions are drawn, the fact that the questions were
  not copied and emanated from the author is sufficient enough for the grant of
  copyright protection.
- University of Cambridge v. BD Bhandari, 2005 (31) PTC 58 (Del), to
  assert that the defense of fair use under section 52 cannot be extended to cases
  where there is verbatim copy of the questions and the answer key.
- Also, the exception under Section
  52 (1)(h) applied only if the reproduction is made as a part of the questions
  and answers in an examination.
- Jadish Prasad v. Parmeshwar Prasad,
- to contend that questions are original literary works and
  copyright can subsist even if such questions are part of a prescribed syllabus,
  so long the author employed labour and skill in their publication
- Blackwood and Sons v. Parasuraman, AIR 1959 Mad 410,
  to contend that the plaintiff need not prove any oblique motive or intention to
  copy on the part of the defendants, so long the copying involved substantial and
  vital portions, that is the copying was both quantitative and qualitative.
- defendants have not copied the contents of each lesson or
  chapter
- all students are well aware that the
  defendant?s publications are guide books whereas the plaintiff?s publications
  are textbooks.
- The defendants? books are not a substantial reproduction of
  the plaintiff?s textbooks
- since their books are in the form of answers to questions
  contained in the plaintiff?s prescribed text book for the purposes of education,
  no copyright can be claimed nor infringed.
- there is possibility of
  existence of several Guide Books for the same textbook
- They only facilitate
  students? preparation for examinations. If such guide books are not permitted
  to be published the result would be contrary to public interest and interest of
  the student community.
- She contended that the questions appearing
  in the plaintiff books from part of the common pool of questions used by
  authors, schools, guides and students in India, and contended that the nature
  of the subject is such that it would be impossible for one author to claim
  copyright over a set of questions
- their books would not constitute adaptation under section 2 (a),
  and therefore, cannot be violative of section 14 (a) (vi).
- plaintiff amounts to fair use under section
  52(1) (a) and 52(1)(h) of the Act, assuming, arguendo, that there is copyright
  infringement. She contended that in relation mathematical works, publication of
  a guide to solve questions in the plaintiff?s work amount to ?review?, of the
  plaintiff?s literary work and therefore covered by section 52(1)(a).
  Furthermore, the present case also falls under Section 52(1)(h) as the
  reproduction of the literary work was as a part of answers to those questions.
- books are based on the Board?s
  Syllabi which prescribed the plaintiff?s books as exclusive textbooks. She
  argued that once the book is declared a part of a syllabus, then, students are
  free to use the questions in it any manner and therefore, guide books that help
  students solve these questions will also be covered under the fair use exception
- 118 that there can be no copyright in ideas and therefore, the
  questions per se are not subject matter of copyright
- guide books to help students study and answer questions
  amounts to fair use under the Act;(Ref. V Ramaiah v. K Lakshmaiah (1989) PTC
  137; EM Forster v. AN Parasuraman AIR 1964 Mad 331; Kartar Singh Giani v. Ladha
  Singh, AIR 1934 Lah 777 and Romesh Chowdhry v. Ali Mohamad Nowsheri, AIR 1965
  JandK 101). T
- First is
  whether that part of the work of the plaintiff, which the defendants have
  reproduced, prima facie merits copyright protection. Secondly, if it does, have
  the defendants sufficiently made out a ?fair dealing? or a ?fair use? defence at
  this stage.
- The law affords protection to expressions that are fixed
  in a medium and are ?original?
- paradigm
  shift from the days of ?sweat of the brow? doctrine enunciated in University of
  London Press (supra) to the ?modicum of creativity?
- The Supreme
  Court too recognized this shift and in Eastern Book Company v. DB Modak (supra),
  following the approach laid down by the Canadian Supreme Court in CCH Canadian
  Ltd., Vs. Law Society of Upper Canada (2004) SCC 13
- merely because time, energy,
  skill and labour was expended, that is, originality of skill and labour), and
  held that the work must be original ?in the sense that by virtue of selection,
  co-ordination or arrangement of pre-existing data contained in the work, a work
  somewhat different in character is produced by the author?
- the sweat of the brow
  on the one hand, and ?modicum of creativity? were extreme positions; it
  preferred a higher threshold than the doctrine of ?sweat of the brow? but not as
  high as ?modicum of creativity?
- not every effort or industry, or expending of skill, results in
  copyrightable work, but only those which create works that are somewhat
  different in character, involve some intellectual effort, and involve a certain
  degree of creativity.
- plaintiffs claim to copyright in the questions as well the copyright in the
  arrangement of the exercises in each chapter and the internal arrangement of
  questions therein, needs closer scrutiny.
- This doctrine posits that where the idea and expression
  are intrinsically connected, and that the expression is indistinguishable from
  the idea, copyright protection cannot be granted
- because doing so would confer monopoly
  on the idea itself. The decision in Herbert Rosenthal Jewelry Corporation v.
  Kalpakian, 446 F.2d 738(1971) is illustrative in this regard. In that case the
  plaintiffs sued the defendants asking them to refrain from manufacturing bee
  shaped jewel pins. The Court held that the jewel shaped bee pin was a an idea
  that anyone was free to copy, the expression of which could be possible only in
  a few ways, therefore, no copyright could subsist in it.
- that copyright can vest in
  questions and question papers too, are all prior to the decision in Eastern Book
  Company (supra). Besides the fact the standard for conferring copyright
  protection since University of London (supra) has undergone dramatic
  transformation, the facts of that case in relation to the doctrine of fair
  dealing can be distinguished on the ground that the allegedly infringing work in
  that case contained merely the answers and not the solutions to the questions
- Besides asserting the work put in by Dr. Roy, and the
  effort in arranging such questions at appropriate stages, chapters or units in
  the textbooks, the plaintiff do not show how such effort is original to conform
  to the minimum degree of creativity mandated by Indian law, post Eastern Book
  Company (supra). Mathematical questions are expression of laws of nature. The
  ?discovery? of such laws cannot confer monopoly to those who describe it. The
  reason is that language is a limited medium, which enables description of such
  laws of nature ? in only a few ways. Recognition of copyright as inhering in the
  questions themselves (as the plaintiff suggest the court to do), without
  existence of the ?creative? element of originality would deny access to ideas,
  thus robbing one of the primary objectives of copyright law (promotion of
  creativity) of vitality, thereby stifling intellectual growth. Interestingly,
- Prima facie, Parliament
  could not have intended that innovations such as new mathematical questions,
  denied benefit of patent protection?which if granted is of restricted
  duration?could be refused, but a wider protection in time, by way of copyright,
  could have been granted.
- the plaintiff say that the textbook
  conforms to the specifications and requirements of the Jand K Board. Here, the
  plaintiffs had to show original effort, unique to their schematic arrangement or
  sequencing. In education, the dictates of the ?learning content? are such that
  each level demands a ?curve?. These ?learning content? and ?learning curve?
  elements are inherent in the syllabi evolved by examination bodies such as J and
  K Board or the CBSE. The plaintiff therefore, had to show how it evolved an
  arrangement so unique that the scheme is entitled to copyright protection,
  independent of the dictates of the Board. The involvement of the Board, in the
  creation of the syllabus, negates such originality.
- This is not to suggest that
  there can be no creativity the such schematic arrangement; the court merely
  infers that prima facie there is no material in support of it; the plaintiff
  have made no attempt to show this creativity, apart from placing the textbooks
  on the record.
- , this court prima facie is of the opinion that
  the plaintiffs? claim of copyright in questions, answers, and their requiring or
  arrangement, is insubstantial.
- It permits reproduction of the copyrighted work or use in a
  manner, which, but for the exception carved out would have amounted to
  infringement of the copyright
- Pierre N Leval, wrote:
  ?The doctrine of fair use need not be so mysterious or dependent on intuitive
  judgments. Fair use should be perceived not as a disorderly basket of exceptions
  to the rules of copyright, nor as a departure from the principles governing that
  body of law, but rather as a rational, integral part of copyright, whose
  observance is necessary to achieve the objectives of that law?.Fair use should
  not be considered a bizarre, occasionally tolerated departure from the grand
  conception of the copyright monopoly. To the contrary, it is a necessary part of
  the overall design. Briefly stated, the use must be of a character that serves
  the copyright objective of stimulating productive thought and public instruction
  without excessively diminishing the incentives for creativity?.
- ook to the
  nature and objects of the selections made, the quantity and value of the
  materials used, and the degree in which the use may prejudice the sale, or
  diminish the profits, or supersede the objects, of the original work.
- Harper and
  Row v. Nation Enterprises
- The Court noted that the four factors identified by
  Congress (17 U. S. C. ?107) as especially relevant in determining whether the
  use was fair were: (1) the purpose and character of the use; (2) the nature of
  the copyrighted work; (3) the substantiality of the portion used in relation to
  the copyrighted work as a whole; (4) the effect on the potential market for or
  value of the copyrighted work and proceeded to test the facts on each of these
  grounds.
- Court applied much emphasis on the commercial
  character of the defendant?s use and its implication on the potential market of
  the copyrighted work. While doing so it recalled the observations made in Sony
  Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984), that ?every
  commercial use of copyrighted material is presumptively an unfair exploitation
  of the monopoly privilege that belongs to the owner of the copyright?.
- It is however, important to note the dissenting opinion of Justice Brennan in
  this regard. He regarded the majority opinion as conferring monopoly on
  historical facts and not merely on the exception. He cautioned that this
  approach would prove counter- productive to the very end of granting copyright
  protection and observed that:
  ?In my judgment, the Court's fair use analysis has fallen to the temptation to
  find copyright violation based on a minimal use of literary form in order to
  provide compensation for the appropriation of information from a work of
  history. The failure to distinguish between information and literary form
  permeates every aspect of the Court's fair use analysis, and leads the Court to
  the wrong result in this case. Application of the statutorily prescribed
  analysis with attention to the distinction between information and literary form
  leads to a straightforward finding of fair use..?
- all the traditional four factors
  
  employed to reach a conclusion of fair use are to be treated together, not in
  isolation and no undue preference can be given to any one of them.
- Court must look into the nature of the
  use, i.e. whether it was for educational purposes or for review or criticism.
  The central enquiry (according to the Court) is to see if the work merely
  supercedes and supplants the original work or instead adds something new, with a
  further purpose or different character, altering the first with new expression,
  meaning, or message; in other words, whether and to what extent the new work is
  ?transformative?. The
- ransformative works, the Court held, have a greater chance of
  falling within the fair use defense and such ?works thus lie at the heart of the
  fair use doctrine?s guarantee of breathing space within the confines of
  copyright?.
- The second factor, which evaluates the nature of the
  copyrighted work, is intended to find out if the work actually merits copyright,
  that is, whether copyright law was intended, at its core, to cover such works.
  However, the Court cautioned that this factor is not likely ?to help much in
  separating the fair use sheep from the infringing goats?, in cases where the
  subsequent work is transformative. The third factor, which
- extent of copying, the Court explained citing Sony (supra), does not entail that
  the reproduction of the entire work would militate against the finding of fair
  use
- There could be cases where the copying could be substantial and the courts
  finds fair use, at the same time there could be cases where the copying though
  insubstantial could be held as infringement.
- here the market harm to the copyrighted work had to be assessed,
  could not be the sole determinative factor.
- consider not
  only the extent of market harm caused by the particular actions of the alleged
  infringer, but also whether unrestricted and widespread conduct of the sort
  engaged in by the defendant would result in a substantially adverse impact on
  the potential market?.
- vacating the injunction on
  ?The Wind Done Gone? a fictional work based on Margaret Mitchell?s Gone With th
- Are they altogether too many and too long to be fair? Then you must
  consider the use made of them. If they are used as a basis for comment,
  criticism or review, that may be a fair dealing. If they are used to convey the
  same information as the author, for a rival purpose, that may be unfair. Next,
  you must consider the proportions.
  To take long extracts and attach short comments may be unfair. But, short
  extracts and long comments may be fair. Other considerations may come to mind
  also. But, after all is said and done, it must be a matter of impression. As
  with fair comment in the law of libel, so with fair dealing in the law of
  copyright. The tribunal of fact must decide.?
- RG Anand (supra) had to adjudicate whether the film
  produced by the defendant had in any manner infringed the copyright held by the
  plaintiff in his play
- is the defendants work is nothing but a colourable imitation of the plaintiffs
  work
- 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.
- ?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.?
- whether a guide book prepared to help students understand and study a text
  called ?Girija Kalyanam? amounted to infringement. The Court took note of the
  fact that the guide consisted of three portions, the first of which gave
  meanings to the text. The second portion contained annotations and illustrations
  of the meanings and the third portion consisted of probable questions and
  answers. The Court distinguished the facts from that in Blackwood and Sons v. AN
  Parasuraman (supra), where the infringing work merely eliminated certain
  passages from the original work and retained the essential part of the narration
  in substantial form
- whether a guide
  published for the novel ?A Passage to India? violated the copyright in the
  original novel. Here again, the Court noted that there was no verbatim
  reproduction of the entire novel. The guide was divided into different portions,
  which consisted of an introduction to the characters, the life and philosophy of
  EM Forster, a brief introduction to the works of EM Forster and of course an
  abridged version of the novel; though not chronological.
- in the
  guise of copyright law the plaintiff cannot ask the courts to close all the
  avenues of research, scholarship and all frontiers of human knowledge.
- In Romesh Chowdhry (supra) too, the facts
  involved publication of guide books to books published by the University in
  accordance with its syllabi. The Court found that the guides were not colourable
  imitations of the University publications and amounted to criticism and review
  of those books.
- Civic
  Chandran v. Ammini Amma 1996(16) PTC 670. The defendants had published a play
  ?Ningal Are Communistakki?, that was intended to be a critique of a famous play
  ?Ningal Enna Communistakki?. The court referred to Hubbard v. Vosper (supra) and
  RG Anand and concluded that the play was meant to be a critique and therefore,
  
  constituted fair dealing under section 52.
- not market competitor to the prior work, and by itself constituted a literary
  work with some amount of originality. Moreover, the Court held that the nature
  of the work, that is to criticize the social structures in Kerala, by itself
  meant that certain sequences, events and incidents would be common to both the
  prior and the subsequent work, and that the latter was not meant to imitate the
  former. I
- Copyright law is premised on the promotion of creativity through
  sufficient protection. On the other hand, various exemptions and doctrines in
  copyright law, whether statutorily embedded or judicially innovated, recognize
  the equally compelling need to promote creative activity and ensure that the
  privileges granted by copyright do not stifle dissemination of information.
- g. Public interest in
  the free flow of information is ensured through the idea-expression dichotomy,
  which ensures that no copyright is granted in ideas, facts or information. This
  creates a public pool of information and idea from which everyone can draw. At
  the same time, as Judge Leval observes, all creativity is in part derivative, in
  that, no creativity is completely original; ?each advance stands on building
  blocks fashioned by prior thinkers?
- Judge Leval further observed that most important areas of
  intellectual creativity like philosophy, literature and sciences are
  referential, and require continuous reexamination of existing theses.
- doctrine of fair use then, legitimizes the reproduction of a
  copyrightable work. Coupled with a limited copyright term, it guarantees not
  only a public pool of ideas and information, but also a vibrant public domain in
  expression, from which an individual can draw as well as replenish. Fair use
  provisions, then must be interpreted so as to strike a balance between the
  exclusive rights granted to the copyright holder, and the often competing
  interest of enriching the public domain.
- the same time must discourage blatant
  plagiarism. It, therefore, must receive a liberal construction in harmony with
  the objectives of copyright law. Section 52 of the Act only details the broad
  heads, use under which would not amount to infringement. Resort, must,
  therefore be made to the principles enunciated by the courts to identify fair
  use.
- One crucial test, of the four-factor test, as developed by the
  American courts, is the transformative character of the use. The Courts should
  in cases like the present ask whether the purpose served by the subsequent (or
  infringing) work is substantially different (or is the same) from the purpose
  served by the prior work. The subsequent work must be different in character;
  it must not be a mere substitute, in that, it not sufficient that only
  superficial changes are made, the basic character remaining the same, to be
  called transformative
- Though to a purist or one who delights in intellectual
  pursuits, such works may be distasteful, - even offensive ? there is no
  gainsaying that they neither pretend to be textbooks, nor reproduce all that are
  contained in them. They are designed to cater to a category of student ?weak? in
  their understanding of the subject.
- Thus, the defendants? works can be said to be ?transformative?,
  amounting to ?review? under Section 52 (1) (a) (ii) of the Act
- he plaintiffs claim to copyright
  is premised the work being a ?literary? one. The review ? or commentary, of a
  part of such mathematical work ? too would have to be seen in the background of
  this claim.
- In the context of a
  mathematical work a review could involve re-examination or a treatise on the
  subject. In that sense, the defendants? revisiting the questions, and assisting
  the students to solve then, by providing the ?step by step? reasoning prima
  facie amounts to a review, thus falling within the ?fair dealing? provision of
  Section 52 (1) (a) (ii) of the Act.

13 Oct 08

Music lands gym owner in trouble-Chandigarh-Cities-The Times of India

A local gym owner and instructor were arrested on Thursday after they allegedly manhandled a licensing inspector of the Indian Performing Rights Society (IPRS) when he asked them to produce license for playing music in the gymnasium on Wednesday.

timesofindia.indiatimes.com/...3578559.cms - Preview

IPRS copyright IP music licenses infringement

A local gym owner and
instructor were arrested on Thursday after they allegedly manhandled a licensing
inspector of the Indian Performing Rights Society (IPRS) when he asked them to
produce license for playing music in the gymnasium on
Wednesday.

12 Oct 08

Delhi High Court Scrabulous judgment

courtnic.nic.in/...dhcqrydisp_J.asp - Preview

scrabulous scrabble ip trademark copyright language genericide

13. The defendants claim to be lawfully operating their websites and that
there have been no attempt to misappropriate any traffic. It is claimed that
that the metatags used are in relation to their product Scrabulous and not
Scrabble. Using the word scrabble in coding was a method of describing the game
and was not intended to indicate any brand. They also deny that their website
contains hyperlinks to various unauthorized infringing websites. Since the word
scrabble is in the public domain, any such use cannot be infringement of the
plaintiffs? rights. It is also pointed out that the plaintiffs do not have any
version of their game online, and therefore, there is no question of diverting
Internet traffic.

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