PUBLIC DOMAIN A DEFENCE AGAINST COPYRIGHT INFRINGEMENT

Introduction

The copyright act in India was enacted on 4th June 1957. It is an interesting question to discuss on which works the copyright subsists. Section 13 of the Act provides the answer to this question. Copyright in India is available for original literary, dramatic, musical, and artistic works, cinematograph films, and sound recording. Furthermore, the copyright will not be granted on any cinematographic film where a part of the film is an infringement of the copyright in any other work and in any sound recording made in relation to the literary, dramatic, or musical work wherein making the sound recording copyright has been infringed. 

Section 4 of the Act states that except in case of infringement of copyright, work will not be deemed to be published or performed in public without the prior license of the owner of the copyright. Thus, copyright makes it very clear that without permission from the owner, such acts by any person will be deemed as copyright infringement. In such disputes, the registered owner has the right to sue the person. Chapter 10 of the Act, i.e., Sections 44 to 50A, provides the aspect of registration of copyright. 

Copyright Infringement

Section 51 of the Act provides when copyright will be said as infringed. Copyright will be deemed to be infringed when any person without a license from the owner of the copyright or from Registrar or in contravention with conditions of a license granted does: anything where the exclusive right to do is on the owner, any act of profit any place for the communication of the work which constitutes infringement. 

Further copyright infringement will be said to be constituted when any person makes or sells any trade displays or offers it for sale or distributes for the purpose of trade which affects the owner directly or by any way exhibits the trade in public. 

Public Domain

The term “public domain” relates to creative materials that are not under the protection of intellectual property laws, including copyright laws, patent laws, and trademark laws. It is a work that is owned by the author and not like any individual author or artist. Since it’s in the “public domain” so anyone has the authority to use it without any prior permission from anybody. Works which are available to the public are free to use. 

So the following will not amount to copyright infringement: 

1. Reporting of events and current affairs where reporting of such lecture got delivered in public;

2. Reading of recitation of reasonable extracts from a book which is without an owner and is available for the public;

3. Causing or recording sounds from the speeches delivered in public. 

Cases

In Eastern Book Company And Others. v. D.B. Modak And Ors., 101 (2002) DLT 205, The high court observed that reading of the judgments reflect that it belongs to the public domain and cannot be private property. Under Section 13 of the Act, copyright exists for original literary, musical and artistic work, cinematograph films and sound recordings. Literary work includes computer programs and a complete computer database. Reproduction of original literary work will clearly amount to infringement in their publication of journals.

They further held that the act of reproduction of any judgment or order of the court, the tribunal, is not an infringement of the copyright. After the court solved the matter and pronounced its judgment, the judgment will be available to any person on his being made an application to the court for the purpose. Merely because plaintiffs have made certain corrections in the judgments, it will not amount to the right to claim copyright. Plaintiffs have made certain corrections regarding typographical mistakes in the judgments insert commas and full stops wherever necessary. Almost all journals have their own paragraph numbers. Even if paragraph numbers are different, it will not give the plaintiff the right to claim copyright over paragraphs or mistakes, which have been made in the public domain. 

In the case of Ferani Hotels v. State Information Commission Mumbai & Ors., The Supreme Court held that disclosure of plans which are required to be in the public domain, whether under repealed act or RERA, can be hardly categorized as matters of commercial confidence or trade secrets. Similarly, as far as intellectual property is concerned, the preparation of the plan and its design will invite copyright of a particular person, but with the disclosure of the work, it would not amount to an infringement. Further, section 52 of the Copyright Act, 1957 specifically states that there would be no infringement if there is a reproduction of any sort of work in a certified copy made or supplied in accordance with the law time being in force. 

In the case of M/s. Video Master & another v. M/s. Nishi Productions & Ors., 1998(3) Bom. CR 782, The court examined the circumstances under which the exhibition of a film by various modes infringed copyrights. In the case, the plaintiff was assigned video playback and cable T.V rights and objected to the defendants being given the satellite broadcasting rights. Finally, the court observed that each of the modes of communication is available in public, and each one was separate and divisible. It was held that the modes of communication could exist in different persons at the same time without infringing the copyright of the other.  

Conclusion

Copyright Protection provides exclusive rights to the owners of the work to reproduce the work, making them derive financial benefits by exercising such rights. In a case where any person without authorisation from the owner exercises such rights in relation to the work which has copyright, it constitutes an infringement of the copyright. Further, even if the reproduction of the work is carried after the expiry of the copyright term, it will not amount to an infringement. There are numerous defences that can be raised against copyright infringement. At the same time, it becomes essential to evaluate each case based on its own circumstances and to decide which particular defence will exist accordingly. Works which are available to the public are free to use.  

BY: MUNIS NASIR