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Copyrightable subject matter: All you need to know - Part 1

Literary work Artistic work Dramatic work

Read time: 12 minutes
Inhouse credit: Editor: Amoolya Jain
Last updated: 21/10/2021

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Image Credit: http://thebluediamondgallery.com/c/copyright.html

Synopsis: The article, which is the first part of a two article series, discusses the subject matters of copyright: literary, dramatic and artistic works. The author provides a practical checklist for registrations and other procedural requirements.

 

A journey of an idea to turn into a beautiful piece of art, book or a song is often long and arduous. The fruits of labour of the creator is celebrated with the awarding of a copyright.

So, what is a copyright? According to the Oxford dictionary, copyright is defined as an exclusive right given by law for a certain number of years to an author (or his assignee) to print, publish and sell copies of his original work.

The term ‘copyright’ has not been defined in Section 2 of the Copyright Act, 1957 (‘the Act’), but the meaning can be traced from Section 14 of the Act, which states that copyright is an exclusive right to do or authorize the doing of any number of acts prescribed in the Act. This exclusivity of right translates to providing the copyright holder with a barrage of negative rights – right to stop others from doing certain activities that only the holder of the copyright can do.

Further, it is important to note that copyright is provided only to an expression of an idea, not the idea itself e.g. one may have an idea to write a story about unrequited love, but unless he/she puts it on paper as a Romeo and Juliet or in a film as a Mughal-e-Azam, no copyright can be granted. The standalone idea of unrequited love is not copyrightable.

Section 13 of the Act clearly indicates that copyright subsists in the original work i.e. the work must not be copied. Originality is expected in the expression, not the idea. A copied work will not be granted copyright.

Copyright is granted to various subject matters as broadly listed in Section 13 of the Act. The main subject matters include literary, dramatic, musical and artistic works, cinematograph films and sound recordings. It is vital to draw a clear distinction between each of the subject matters as they have different rights, method of application, fee payable, etc. This article is an attempt to list the various items covered under each of these subject matters.

 

LITERARY WORK

Literary works are those that can be printed or reduced in writing like poems or novels. However, there are various other types of articles that can be copyright as literary works such as pamphlets, articles, derivative works (translations, adaptations, arrangements), tables, compilations of stories and poems, dictionaries, encyclopedias.

  1. Statutory definition

Section 2(o) of the Act refers to literary works as works which include computer programs, tables and compilations and computer databases. It is an inclusive definition which widens the scope of literary works.

  1. What can be registered as a literary work?

Book/e-book

If fixed in writing, print or digital form.

New edition of book

If the new edition contains substantial alterations as compared to the earlier edition not just minor changes.

Novel

If fixed in writing or in print.

Story

Short stories, irrespective of their size, if fixed in writing or in print.

Poem

A single poem or a collection of poems.

Song lyrics

Lyrics of the song, independent of the music.

Concept note

Although concept note is an outline of an idea, because it is an expression of the idea it is copyrightable.

Letter

Private and commercial letters with the author of the letter becoming the owner.

Lecture, sermon and speech

Section 2(n) of the Act states that lecture includes address, sermon and speech only if they are reduced in writing or print.

Table

Section 2(o) of the Act defines literary work to include tables.

Head note and report of judicial proceedings

Head notes and reports, if they are not a mere repetition of the judicial proceedings they prefix.

Commentary

Commentaries, which are a product of labour and skill where an author explains knowledge that is available in the public domain in his own way.

Compilation

Compilations which require skill, labour and judgment to be applied by the author.

Directory/Encyclopaedia/Dictionary

Allowed as compilations.

Research thesis, research paper, dissertation

If they are products of author’s skill, labour and judgment.

Comic book

A comic, generally, is a story told using certain pictures in various frames. These may or may not be accompanied by words, dialogues, etc. While the pictures can be protected as an artistic work, the literary elements of a comic book can be registered as a literary work.

 

The applicant is required to give a declaration that he is seeking copyright in the literary element only.

Website content

Includes only the literary elements/content of the website.

Panchang (Almanac)

In Khemraj Shrikrishandas v. Garg & Co. and Anr., AIR 1975 Delhi 130, it was observed that copyright exists in panchang.

Ticket

In Rai Toys Industries v. Munir Printing Press, Delhi, 1982 PTC 85, the ticket used in the game of tambola was considered as a subject matter for copyright because the creation of tables of numbers required investment of skill, labour and originality in preparation.

Questionnaire and question paper

In Aggarwala Publishing House v. Board of High School and Intermediate Education & Anr., AIR 1967 All 91, it was held that copyright subsists in question papers.

Brochure, catalogue or pamphlet

A brochure may contain only literary work or both literary and artistic works. The literary elements of a brochure can be registered as a literary work.

Translation, adaptation or abridgement of literary work

If original and the author has expended sufficient labour, skill and judgment.

A no-objection certificate is required from the author of the original work.

 

  1. What cannot be registered as a literary work?

Single word

A single word is not a creation of labour and skill. However, the artistic manner in which the word may be represented can be registered as an artistic work according to Associated Electronics v. Sharp Tools, ILR 1991 Kar 1916.

Two or three sentences

A literary work is intended to afford information, instruction, pleasure or any form of literary enjoyment. Two or three sentences, on their own, generally do not meet this requirement.

Title

As a rule, titles of the works are not protected under the Act.

Slogan

In PepsiCo Inc & Ors. v. Hindustan Coca Cola & Anr., 2003 (27) PTC 305 Del, it was held that advertising slogans are not protectable under the Act. However, they could be protected under Trade Marks Act, 1999.

Certificate

Certificates with common words and generic formats, with only a few non-substantial edits are not original and hence not copyrightable.

Blank form

In Baker v. Selden, 101 U.S. 99 (1879), the Court held that blank forms lack originality and hence not copyrightable.

Mathematical formula & algorithm

A mathematical formula is a standardized notation for expressing mathematical concepts where the idea and the expression are inseparable; therefore, not copyrightable.

Pocket diary & calendar

In Deepak Printers v. Forward Stationery Mart & Ors., (1981) PTC 186 Guj, the court ruled that calendars cannot be copyrightable but any pictures or decorative features they contain can be protected under other subject-matters of copyright.

Pocket diaries containing usual pages such as calendars, postal information, maps, etc. and hence lack originality.

Recipe

Recipes that are mere listings of ingredients are not copyrightable. However, additional features to the recipe such as a description, explanation or story can be protected as a literary work.

Layout

There is no copyright in general layouts. In Schove v. Schmincke, (1886) 33 Ch D 546, it was held that layout of coupon is not the subject matter of copyright.

Fact

A fact such as ‘sun rises in the east and sets and the west’ standalone lacks originality.

Screenshot & snapshot

Screenshots and snapshots, even if it contains literary content, cannot be registered under this category.

  1. Documents required
  • Form XIV along with Statement of Particulars and Statement of Further Particulars duly filled and signed by the applicant. At least two copies of work in hard copy are required to be submitted along with the application.
  • If the work is a translation/adaptation then a NOC from the author of the original work is required and in case the author is deceased then a NOC from his/her legal heir(s) is required.
  1. Term of protection

The duration of copyright for a literary work is the lifetime of the author and 60 years counted from the year following his death (Life + 60 years).

  1. Fee

The requisite fee to be submitted for registration is Rs.500 per work.

  1. How to submit the work?

The copies of the work can be provided in printed form, a pen drive or CD.

  1. Tips
  • The work should indicate the title and the name of the author on it.
  • If the work has parts, then those should be in continuation with a single index. A declaration stating that the parts constitute a single work and are not multiple works should be provided.

 

DRAMATIC WORK

Copyright subsists in original dramatic work and its adaptation, which are activities performed on stage for entertainment. The main difference between a dramatic work and a cinematograph film is that the former is generally performed by artists, often at the same venue as the audience and the latter is recorded and played on screen for an audience.

  1. Statutory definition

Section 2(h) of the Act provides that dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.

  1. What can be registered under the head of dramatic works?

Piece of recitation

If fixed in writing or printed form.

Choreographic work

If fixed on a tangible form such as a video recording.

Entertainment in dumb show

If fixed on some tangible form such as a video recording.

Scenic arrangement or acting form

If reduced to some permanent form.

Plays

If fixed in writing or printed form.

  1. What cannot be registered under the head of dramatic works?
    As per the Act, cinematograph film cannot be registered as a dramatic work because it is a separate subject matter of copyright.
  2. Documents required
    Form XIV along with Statement of Particulars and Statement of Further Particulars duly filled and signed by the applicant. At least two copies of work in hard copy are required to be submitted along with the application.
  1. Term of protection
    The duration of copyright for a dramatic work is the lifetime of the author or artist and 60 years counted from the year following his death (Life + 60 years).
  1. Fee
    The requisite fee required to be submitted is Rs. 500 per work.
  1. How to submit the work?
    The work can be provided in printed form, a pen drive or CD.
  1. Tips

It is important to note that dramatic work expressly excludes cinematograph work.

 

ARTISTIC WORK
Artistic work includes various works like logos, paintings, posters, sculptures, drawings, engravings, photographs, works of architecture and works with artistic craftsmanship.

  1. Statutory definition

Section 2(c) of the Act provides for a very wide definition of artistic works which includes a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture and any other work of artistic craftsmanship.

  1. What can be registered as an artistic work?

Painting

If original, irrespective of its artistic quality.

Sculpture

If original, irrespective of its artistic quality.

Drawing

According to Binj Rajka Steel Tubes Ltd. v. State by Inspector of Police, MANU/TN/1319/2004, drawings include engineering drawings.

Map

Provided, the person applying for registration submits a NOC from the Survey of India.

Chart

Charts include flow charts.

Engraving

Engravings were one of the first artistic works to receive statutory protection.

Photograph

If original, irrespective of its artistic quality.

Work of architecture

If the correct specifications of the work like area, dimension, etc. are provided. However, according to Section 13(5) of the Act, the copyright is granted only to the design, not to the process or methods of construction.

Fictional character

Fictional characters that can be visually perceived such as cartoons, brand ambassadors, comic characters, etc. are a subject matter of artistic works. However, they can be protected under other subject matters of copyright also. E.g. a cartoon character can, in addition to being protected as an artistic work, be protected under a cinematograph film it features in.

Logo

This causes an overlap between Trade Marks Act, 1999 and the Act, 1957. Both statutes allow cross-subject matter registrability.

 

Both laws attempt to ensure that a third party does not obtain a conflicting registration. The Trade Marks Act, 1999 states that no mark that potentially infringes an earlier copyrighted work shall be registered. Similarly, the Act, 1957 lays down the requirement of search certificate from the Trademarks Registry stating that there is no other trademark registration which is similar and conflicting to the subject work.

 

  1. What cannot be registered under the head of artistic work?

Design

Section 15 of the Act provides that any subject matter registered as a design will lose copyright protection the moment 50 industrial articles embodying the registrable design are produced.

Pictorial compilation

Pictorial compilations are not protected under this category as copyright exists in each of the pictures separately.

Logo similar to government’s

Logos similar to that of government, lack originality and hence cannot be copyrighted.

  1. Documents required

Form XIV along with Statements of Particulars and Statement of Further Particulars duly filled and signed by the applicant. At least two copies of work in hard copy are required to be submitted along with the application.

If an artistic work has the potential to double up as a trademark, a search certificate from the Trademarks Registry should be obtained affirming that no identical or deceptively similar trademark has been registered. This is a mandate under Section 45 of the Act.

In case of a photograph of a person, such person’s NOC has to be submitted in original. If such person is deceased then from his/her heir(s) and if such person is a minor, from their guardian.

  1. Term of protection
    The duration of copyright for an artistic work is the lifetime of the artist, and 60 years counted from the year following the death of the artist (Life + 60 years).
  1. Fee
    There are two separate fee categories for artistic works –
  • Rs. 500 per work in case of the work is purely artistic with no industrial use. E.g. a painting as an independent work of art.
  • Rs. 2,000 per work if the work is used or is capable of being used on or in relation to goods and/or services. E.g. a painting that is used as a motif on textiles.
  1. How to submit the work?
    The work can only be submitted in printed form.
  1. Tips
  • The artistic work applied for registration, in case of a possible overlap with trademarks, must be identical to the work attached with the search certificate from the Trademarks Registry.
  • It is important to identify the industrial applicability and the intent of the artist with regard to an artistic work before filing the application so one can determine the fee payable.

Part 2 of this article discusses other subject matters of copyright such as musical work, sound recording, computer software and cinematograph film. Click here to read more.

 

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice.





Ritu Meena

Legal Assistant
Copyright Office, New Delhi

Ritu Meena is working as a Copyright Examiner in Copyright Office, New Delhi.

Ms. Meena pursued her LL.B from Delhi University and LL.M, with specialization in IPR, from NLU Jodhpur. She is currently pursuing Ph.D in IPR from Jaipur National University.

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