Copyright Registration in India: What It Covers

You do not need to register to own a copyright. Copyright registration in India is voluntary. Under Section 13 of the Copyright Act 1957 the right comes into existence the moment an original literary, dramatic, musical or artistic work is created and fixed in some form, and India’s obligations under the Berne Convention rule out any formality as a condition of protection. Your manuscript, your source code, your architectural drawing and your product photograph are protected without a single form being filed.

So what does registration buy? Evidence. Section 48 provides that the Register of Copyrights is prima facie evidence of the particulars entered in it, and that the entries are admissible in court without further proof. In a dispute about who created what and when, an extract of the Register moves the burden onto the other side. That is worth having when you are asking a court for an injunction on a week’s notice, and it is why we advise registration for the small number of works a business genuinely fights over: its logo, its software, its published training material, its catalogues and drawings.

What copyright protects, and what it does not

Section 13 lists three heads: original literary, dramatic, musical and artistic works; cinematograph films; and sound recordings. Computer programmes fall inside “literary work” through the definition in Section 2(o), which is why software is registered as a literary work rather than under any separate head.

Copyright protects expression. It does not protect the thing behind the expression. In practice that means:

• Protected: the words of a manual, the code of a program, the drawing of a machine part, the arrangement and photographs in a catalogue, a jingle, a film, a database in which the selection and arrangement show skill and judgment.
• Not protected: an idea, a plot device, a business method, a recipe as a set of steps, raw facts and figures, a name, a title, a slogan, or a single word.

That last group matters commercially. A brand name and a tagline are not protected by copyright at all. They are trademark subject matter, and the route for them is the Trade Marks Act 1999, described in our note on answering a trademark examination report. A logo is the crossover case: the artistic work in the drawing is copyright, the badge of origin function is trademark, and a serious brand registers both.

Section 14 sets out what the owner controls: reproducing the work, issuing copies, performing or communicating it to the public, making translations and adaptations, and in the case of a computer programme, selling or commercially renting copies.

Who actually owns it

This is the question that causes the most damage, and it is usually settled by Section 17.

The general rule is that the author is the first owner. The exceptions are what catch businesses out.

• Work made by an author in the course of employment under a contract of service belongs to the employer, in the absence of an agreement to the contrary. Your salaried developer’s code is yours.
• Work made by a freelancer or agency under a contract for services does not. The independent designer who made your logo, the studio that shot your product photographs and the consultant who wrote your training deck each retain copyright unless they have assigned it to you in writing. Payment of the invoice does not transfer copyright.
• A photograph, painting, portrait or engraving made at the instance of another person for valuable consideration is a separate exception, and belongs to the person who commissioned it.

If you are buying creative work, the fix is a clause, not a hope. Section 19 requires an assignment to be in writing signed by the assignor, and to identify the work, the rights assigned, the duration and the territorial extent. If the agreement is silent on duration, it is read as five years. If it is silent on territory, it is read as India only. And if the assignee does not exercise the rights within one year, the assignment can be treated as having lapsed unless the contract says otherwise. Vendor contracts and employment agreements are the cheapest place in the whole system to fix ownership, and that clause belongs in the corporate and commercial paperwork rather than in a dispute two years later.

One right does not move with an assignment. Section 57 gives the author the moral rights to be identified as the author and to restrain distortion of the work that damages his honour or reputation, and those stay with the author even after the economic rights are sold.

How the registration itself works

Registration is handled by the Copyright Office and filed online. The steps are straightforward, but the waiting is not.

1. File the application under the Copyright Rules 2013, one application per work, with the statement of particulars, the applicant and author details, and a copy of the work. A power of attorney is filed where an advocate applies on your behalf. For a computer programme the accepted practice is to file the first ten and last ten pages of the source code, with confidential portions redacted, rather than the whole listing.
2. Get the diary number, which issues immediately and fixes the date of the application.
3. Wait out the mandatory thirty day period. The Act allows anyone to object in that window. This wait is not a queue, it is a statutory hold, and it applies to every application.
4. Answer any objection or discrepancy. If someone objects, the Registrar gives both sides a hearing. If the examiner instead raises a discrepancy in the papers, it is answered on the file.
5. Entry in the Register, after which an extract of the Register of Copyrights issues. That extract is the document you produce in court.

Two practical notes. The statutory fee is modest for a literary or artistic work and higher for a film or sound recording; the current table sits in the Second Schedule to the Copyright Rules 2013. And where the artistic work is used or capable of being used in relation to goods or services, which covers almost every logo, the proviso to Section 45 requires a certificate from the Registrar of Trade Marks that no identical or deceptively similar mark is registered or applied for by someone else. Applicants who skip that certificate lose months.

Even a clean application commonly takes several months to reach the Register. Nothing about that delay affects your rights, because the copyright existed from creation. It only affects when you get the evidence.

How long it lasts

Type of work	Term
Literary, dramatic, musical and artistic works	Life of the author plus 60 years, counted from the start of the calendar year after the year of death
Anonymous and pseudonymous works	60 years from publication, unless the author’s identity is disclosed
Posthumous works	60 years from publication
Cinematograph films	60 years from publication
Sound recordings	60 years from publication
Government and public undertaking works	60 years from publication

Photographs were once counted separately from other artistic works. The 2012 amendment brought them into line, so a photograph now follows the life plus sixty rule with the rest of the artistic works. Where a work has joint authors, the term is measured from the death of the author who dies last.

Where copyright stops and design begins

Section 15(2) of the Copyright Act is the trap that catches manufacturers. If a design is capable of being registered under the Designs Act 2000 but has not been registered, copyright in it ceases as soon as the article has been reproduced more than fifty times by an industrial process, by the owner or with his licence.

Read that against a furniture maker who commissions a drawing for a chair, never registers the design, and sells the two hundredth chair. The copyright in the drawing as applied to that chair is gone, and there is no design registration to fall back on. Anyone can copy the shape. The answer is to register the design before manufacture begins, which is set out in our guide to design registration in India.

Enforcing it

Copyright infringement under Section 51 covers doing anything the owner alone has the right to do, and also dealing commercially in infringing copies. The remedies run on two tracks.

Civil. Section 55 gives injunction, damages and accounts of profits. Interim injunctions turn on the ordinary tests of prima facie case, balance of convenience and irreparable injury, and courts do appoint local commissioners to seize infringing stock at risk of disappearing. Section 62(2) is a genuine advantage for the owner: the suit can be filed where the plaintiff actually and voluntarily resides or carries on business, which is a departure from the ordinary rule in the Code of Civil Procedure and means a Jabalpur business does not have to chase a Delhi infringer in Delhi.

Criminal. Section 63 makes knowing infringement punishable with imprisonment of not less than six months and up to three years, along with a fine between fifty thousand and two lakh rupees, with enhanced punishment for a second conviction under Section 63A. The Supreme Court has held the offence to be cognizable and non-bailable, and Section 64 allows a police officer to seize infringing copies without a warrant. That is real leverage in a piracy or counterfeit packaging matter.

Section 52 sets out fair dealing and the other permitted acts, including private and personal use, criticism and review, reporting current events, and specified educational uses. It is narrower than the American idea of fair use, and reproducing a whole work is rarely saved by it.

On timing, a suit is governed by the three year period under the Limitation Act 1963. Continuing infringement gives a recurring cause of action, so a fresh act of copying starts a fresh clock, but delay in coming to court still damages a claim for an interim injunction.

What goes wrong most often

• Paying an agency for a logo and never taking a written assignment, then discovering years later that the agency owns the artistic work.
• Registering a logo only under copyright and assuming the brand name is protected. It is not.
• Filing an application with a work that differs from the version actually in use, so the extract proves the wrong thing.
• Selling more than fifty industrially made articles from an unregistered design, and losing the copyright with them.
• Using an internet image or a stock font in packaging without a licence that permits commercial use.

We advise on copyright ownership, assignment terms and enforcement, and appear in intellectual property matters before the district courts at Jabalpur and the Madhya Pradesh High Court. The wider scope is on our trademark and intellectual property practice page.

This note is general information about the Copyright Act 1957 and the Copyright Rules 2013 and is not legal advice on any particular work. Ownership questions in particular turn on the exact wording of the contract and on how the work was actually commissioned and paid for. If you want your own facts looked at, our contact page is the way to reach us.