What Is The Subject Matter Of Copyright? Explained

Introduction

Copyright is an exclusive legal right granted to intellectual property creators. It gives them complete control over their original works, prevents unauthorized use or exploitation of their creations, and protects their interests.

Copyright protects various intellectual creations and original works, such as books, literature, music, films, art, and software. The expression of ideas is protected and not the ideas. The distinction makes sure that while a creator’s ideas and works are secured, the concept remains open to exploration and development by others.

The purpose of copyright is to safeguard the rights of the creators and encourage creativity, innovations, and the distribution of original works. It also prevents the unlawful reproduction of others’ original works.

In India, copyright is governed by the Copyright Act, of 1957. Section 14 of the Act provides the Meaning of Copyright. The act protects the rights of owners as well as gives the right to reproduce, distribute, perform, adapt, etc. While registration is not mandatory for creation under the Act if such work is copyrighted, it will be protected from unauthorized use. Registration also serves as evidence in the court to prove ownership and infringement as punishable. The duration of Copyright is generally the lifetime of the creator and a period of 60 years after his death.

The subject Matter of copyright means that the work in which a protection of copyright can be granted. The law clearly states that on what work copyright should be granted. some of the essential conditions for the copyrightable work are:

1. Originality: The work must be original and is not copied from somewhere.
2. Expression: The work must be expressed in the clear way and must not be in the form of mere idea.
3. The author must have put some labor to the work.

Legal Framework of Copyright

• The Trade-Related Aspects of Intellectual Property (TRIPS) Agreement is a multilateral agreement that sets the minimum standards for the protection of the areas of intellectual property – Trademark, Patent, Copyright, Geographical Indications, and Industrial Designs.  The TRIPS mandates its member states to protect literary, artistic, and scientific works. It prescribes protection of creation for a minimum period of 50 years. The TRIPS Agreement and its provisions, align with the Berne Convention and require the member states to also comply with them.
• The Berne Convention for the Protection of Literary and Artistic Works was established in 1886, asignificant international treaty that protects copyright. India became a member state of this convention in 1928. The objective of the convention is to establish a baseline for copyright laws across the member countries and to promote international cooperation. Works created in member countries are protected in all other member countries without any formalities. The term of copyright protection under this convention is the life of the author plus 50 years. Authors or creators are given exclusive rights as well as moral rights over their works.
• The International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations also known as the Rome Convention aims to protect the rights of producers, performers, and broadcasting organizations. But India is not a member state of this convention, that is, it is not a signatory of the Rome Convention. 
• The Copyright Act, of 1957 governs Copyright in India. The Act protects the rights of authors and creators who create original literary works, musical, artistic, dramatic works, etc. The Act provides exclusive rights and laid down the Fair Use Doctrine which allows certain exceptions. The act protects the work until the death of the author or creator plus 60 years. The Act was lastly amended in 2012 to align with modern needs with several major changes to it.

Definition of Subject Matter

The Subject Matter of Copyright refers to the various types or categories of works that are protected by the copyright law. A work or creation must be original to be copyrighted. For a work to be granted copyright it should not be a copied work. Copyright protects only works that are in tangible form.

The Berne Convention for the Protection of Literary and Artistic Works, as discussed earlier, lays down the framework for determining the subject matter of copyright. Generally, the subject matter of copyright includes: Literary works includes anything in written form such as poems, novels, etc. Artistic works are anything in visual form such as photographs, paintings, etc. Musical and Cinematographic works, Sound Recording, and Computer Programs.

Therefore, every creation or work must fulfill the criteria of originality and the criteria of tangible medium to be copyrighted.

Works Protected Under Copyright Law

All subject matter protected by copyright is known as “works”. The types of works that are created by authors or creators refer to Subject Matter. Section 13 of the Copyright Act, of 1957 deals with “Works in which copyright subsists”.

Section 13 of the Indian copyrights Act,1957 deals with the subject matter of copyrights. It states that the copyright shall subsist in the following category of works:

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) Sound Recording

Following are the classes of works that are subject to copyright:

Literary Works

The literary work means that the works which is in writing. The act does not define as to what is actually the literary work but it says in section 2 (o) that the literary work will include the computer programs, computer databases, tables and compilation.

Section 2(o) of the Copyright Act, of 1957 defines Literary Work as “computer programs, tables, and compilations including computer databases”.

It is one of the most basic categories of works that can be copyrighted. Literary works simply refer to those works in writing. Any work that is not an audiovisual work but expressed in words, numbers, and other forms of characters are literary work. Examples are books, poems, novels, articles, essays, song lyrics, letters, including computer databases, etc. A literary work is considered and granted copyright only for its original expression, uniqueness, and perspective of it. Ideas, facts, or concepts are not considered literary works. The author of the literary work is given reproduction, distribution, and performance rights.

Dramatic Works

Section 2(h) of the Copyright Act of 1957 defines Dramatic work as “any piece for recitation, choreographic work, or entertainment in a dumb show, the scenic arrangement or acting, the form of which is fixed in writing or otherwise but does not include a cinematograph film”.

Section 2(h) of the Act, defines dramatic work it states that will include:

• anything made for recitation,
• choreographic work and
• anything for the purpose of entertainment in a silent show, will also include
• any scenic arrangement or acting

this definition is broader in nature as it also includes anything which is expressed in writing except the cinematographic films.

Therefore, a work of action, designed for performance purposes before an audience and anything created to be acted out on stage or screen, does not include cinematographic films. Examples include plays, dumb shows, screenplays, and scripts. The authors of the dramatic works are given reproduction, distribution, and performance rights.

Artistic Works

Section 2(c) of the Copyright Act, of 1957 defines Artistic Work as “(i) 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; (ii) a [work of architecture]; and (iii) any other work of artistic craftsmanship”.

Section 2(c) of the act states that the artistic work will include:

• a painting
• a sculpture
• a drawing which also includes a diagram, map, chart or plan
• an engraving or a photograph

it is immaterial that if such work posses any artistic quality or not.

the artistic work will also include:

• a work of architecture
• and a work of craftmanship

Section 2(s) defines “Photograph” as that “includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film”.

Artistic works are those that appeal in an aesthetic sense and are visual. The creator of the artistic work is known as the Artist and the person taking the Photograph is the Author. A work of architecture and craftsmanship also comes under artistic works as they also involve creative processes and aesthetic sensibilities to create such works. Therefore, examples include architectural work, paintings, sculptures, applied art (textile, furniture, etc.), and graphic and illustrative works (cartoons, illustrations, etc.).

The artist and the author of the artistic works are given reproduction, distribution, and public display rights.

Musical Works And Sound Recordings

Section 2(p) of the Copyright Act of 1957 defines Musical Work as “a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music”.

The composition as a whole is considered to be musical work and only the song and its lyrics does not contain the part of a musical work it must be accompanied by some music. If only lyrics of the song is to be protected then it must be protected under the literary work. The musical work will consist of the whole composition that is the music as well as the song and hence the one who makes such work is known as the composer.

Section 2(ffa) defines Composer as “to a musical work, means the person who composes the music regardless of whether he records it in any form of graphical notation”.

Section 2(xx) defines Sound Recording as “a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced”.  

Musical works in copyright refers to musical compositions including the rhythm, notes, harmonies, with or without lyrics, etc. Copyright of musical work does not include common chords, short phrases, and performance of the work. Examples include film scores, instrumental pieces, and electronic music, etc. The creator has Reproduction, Public Performance, Adaptation, Distribution, and Public Display Rights.

When a musical composition is recorded, it becomes a Sound Recording. Copyright is granted to a sound recording when a recording is put into a tangible medium such as tape, audio cassette, CD, podcast, or any other recording medium.

Section 2(xx) states that sound recording means a recording of any sound by which it is produced.

The copyright shall not subsist in the following cases according to section 13(3)

Section 13 (3) states that the copyright shall not subsist in:

1. if any substantial part of the cinematographic film is the infringement of any already copyrighted work,
2. if the copyright has been infringed of any literary, dramatic, artistic or musical work in making a sound recording of that work.

In this case, the producer of the recording becomes the author, and the person who created the recording is the owner.

For obvious reasons when a music composition is recorded, various copyright claims exist such as for the lyrics, music, and the recorded version.

Copyright owners of sound recordings have the Right to Reproduce the Recording, Distribute Copies, Perform the Recording Publicly by Digital Transmission, and Prepare Derivative Works such as remixes or mashups.

Cinematograph Films

Section 2(f) of the Copyright Act of 1957 defines Cinematograph Film as “any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films”.

section 2(f) of the act talks about what to be included in the cinematographic film this will include any visual recordings with various methods. This will also include the visual representation of any work with sound recordings.

Cinematograph incudes anything which is generated by the process of cinematography.

According to Section 2(d) of the Act, the Author of the Cinematograph film is the Producer. Section 17(b) of the Act states that where agreement is absent, the producer is the first owner as it is because of him that the film is made for valuable consideration.

A cinematograph film is a work of visual recording. Copyright protects the overall film including the sound, visuals, sequence, etc. Examples include short films, documentaries, advertisements, feature films, etc. Cinematograph film copyright does not protect the script, music, themes, or any other underlying works as they are protected individually by other copyright subject matter categories. 

Exclusions and Limitations in Copyright Subject Matter

The following are some categories of works that cannot be given copyright protection:

1. Works that are not original and not in a tangible medium;
2. Ideas, concepts, themes, principles;
3. Procedures, techniques, methods;
4. Discoveries, facts such as universal truths;
5. Government works such as public records, laws, and regulations.
6. Doctrine of Fair Use: This Doctrine is one of the fundamental concepts in Copyright. It ensures that certain copyrighted works are available for public use without permission. This brings a balance between an original work and public interest. The purpose for which a work is a major factor under the doctrine. Examples include works used for educational purposes, a journalist using a quote from a book, etc.

Case Laws

R.G. Anand v. Deluxe Films (1978)

The plaintiff a playwright and a dramatist, had written a play called “ Hum Hindustani” in 1953 which was played in 1954. The Defendant released a movie named “New Delhi” in 1955 and the plaintiff sued him for infringement of copyright of his play as the movie was an imitated version. The defendant denied the allegations and contended that the theme/idea of the play is “provincialism” and that it cannot be protected by copyright. The defendant also stated that everyone has the right to present and express their ideas in their way.

The issue in the case was whether the defendant had infringed the plaintiff’s copyright in the play Hum Hindustani by making the film New Delhi.

The Supreme Court ruled in favor of the defendant and relied upon the concept of Idea Expression Dichotomy. The Court stated that there are no significant similarities in the film. According to Section 13 of the Copyright Act, the idea of the play is not protected. Copyright protects only literary, dramatic, artistic, sound recording, and cinematograph films. Copyright Act protects only the expression of the works and not the ideas in which it is presented.

In the case of R.G Anand vs. Deluxe Films and Ors. (1978) the apex court held that when the idea is same and is projected in a different manner similarities will occur. The courts can in such cases see that whether the work is exact imitation of the copyrighted work with a slight variation in such cases copyright is being violated but if the plot and the objective is different than the copyright is not violated.

In the present case though the theme of the work is same but the defendant has executed and expressed it in a different manner. The apex court stated that the idea and the plot cannot in itself be protected under copyright but the manner in which these are being presented is protected under copyright. The movie was broader in concept in comparison to the play and hence the copyright is not being violated.

To learn more about Idea-Expression Dichotomy- Click Here

Eastern Book Company v. D.B. Modak (2008)

The petitioner is engaged in printing and publishing books in the field of law. The petitioner after collecting data from the registrar of the Supreme Court, had published a law report called “Supreme Court Cases” which consisted of judgments, orders, decrees, etc. The report contained headnotes, footnotes, and long notes of judgments. The defendant used them and reproduced them without authorization. The petitioner filed an injunction suit for copyright infringement.

The issue was whether there is a standard of originality in the present matter and whether the petitioner’s work qualifies as “original literary work”.

The Supreme Court held that, according to Section 2(k) of the Copyright Act, judgments are considered “Government Works” and therefore they are not copyrightable as they are already available to the public. Furthermore, to determine originality, a sufficient amount of creativity should be present in the work. The Court observed that there is minimal creativity which is a result of the skill of persons. Therefore, the inputs in the law report are copyrightable. The judgment was in favor of the Petitioner and the court ordered that the defendant shall not use the work of the Petitioner.

Sulamangalam R. Jayalakshmi v. Meta Musicals, Chennai (2000)

In the case, the Madras High Court held that the copyright aim of the copyright act is to preserve the hard work, labor, goal, expression of a person and hence the subject matter should be understood properly.

Blackwood and Sons Ltd. and Ors. vs. A.N. Parasuraman and Ors. (1958)

In this case, Madras High Court has held that the copyright protection must be granted in case of a literally work the translation of any literally work. Because the translation of a literally work is also considered a literally work.

Emerging Subject Matter in the Digital Age

Following are some emerging subject matter in the digital era:

1. Software and Computer Programs are now recognized as copyrightable matters due to the creativity in codes.
2. Digital Content such as E-books and online articles are now becoming copyrightable subject matters.
3. AI-generated works leads to various questions about the author and the originality of the work. But they are generally not copyrightable
4. Non-fungible tokens (NFTs) are blockchain-based tokens that represent a unique asset like a piece of art, digital content, or media. But there are no laws currently regarding NFTs in India.

Conclusion

The Subject Matter of Copyright plays a vital role in determining whether a creation or work of an individual can be granted copyright protection or not. Creators or authors need to come up with original, tangible works in various domains such as literary, dramatic, musical, and artistic works, sound recording, and cinematograph films.

The primary objective of copyright law is to protect the expression and original works of creators and provide them exclusive rights to reproduce, distribute, etc. Copyright not only helps in fostering creativity and innovation but also the growth of the economy.

The key principle that copyright law strives to bring is the balance between creators’ rights and the public interest. On the other hand, the Doctrine of Fair Use and certain other exceptions and limitations to copyright ensure that the public gets access to copyrighted works while upholding the rights of the creators.