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Theoretical Underpinnings of Copyright and Design Laws: Decisions of the Supreme Court of India

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Abstract

This Paper seeks to examine the theoretical underpinnings, as discovered or constructed by the Supreme Court of India in the last 70 years, as to „why‟ of two distinct copyrights envisaged by The Copyright Act, 1957 and The Designs Act, 2000. An analysis of the decisions of the Supreme Court reveals that: (i) in none of the cases validity of either of two copyrights was challenged; (ii) both Labour and Utilitarian Theories, and not any other theory, have been simultaneously used to justify "why" of two distinct copyrights; (iii) inherent differences between these theoretical frameworks have been neglected; (iv) deployment of these two theories appear to be more mechanical than reasoned for logic of tangible subject matter has been unhesitatingly extended to intangible subject matter of two copyrights; and (v) judicial ratiocination does not transcend Labour-Utilitarian Framework except in one judicial opinion which highlights the Un-Indian features of Copyright Law but exercises judicial restraints to invoke it. It has been argued that once these theories were invoked, it had been expected that the Court would apply judicial standards to rigorously scrutinize theoretical underpinning of two copyrights from all possible angles. Decisions of the Supreme Court nonetheless provide an insight into theoretical underpinnings of two copyrights.
Journal of Intellectual Property Rights
Vol 26, July 2021, pp 220-234
Theoretical Underpinnings of Copyright and Design Laws: Decisions of the
Supreme Court of India
Aqa Raza
Jindal Global Law School (JGLS), O.P. Jindal Global University, Sonipat-131001, Haryana, India
Received: 9th May 2021; accepted: 13th July 2021
This Paper seeks to examine the theoretical underpinnings, as discovered or constructed by the Supreme Court of Indiain
the last 70 years, as to „why‟ of two distinct copyrights envisaged by The Copyright Act, 1957 and The Designs Act, 2000.
An analysis ofdecisions of the Supreme Court reveals that: (i) in none of the cases validity of either of two copyrights was
challenged; (ii) both Labour and Utilitarian Theories, and not any other theory, have been simultaneously used to justify
„why‟ of two distinct copyrights; (iii) inherent differences between these theoretical frameworks have been neglected;
(iv) deployment of these two theories appear to be more mechanical than reasoned for logic of tangible subject matter has
been unhesitatingly extended to intangible subject matter of two copyrights; and (v) judicial ratiocination does not transcend
Labour-Utilitarian Framework except in one judicial opinion which highlights the Un-Indian features of Copyright Law but
exercises judicial restraints to invoke it. It has been argued once thatthese theories were invoked, it had been expected that
the Court would apply judicial standards to rigorously scrutinize theoretical underpinning of two copyrights from all
possible angles. Decisions of the Supreme Court nonetheless provide an insight into theoretical underpinnings of two
copyrights.
Keywords:Labour Theory, The Copyright Act, 1957, Utilitarian Theory, Theoretical Underpinning, Social Planning
Theory, Supreme Court of India, Copyright, Design, Intellectual Property, Labour Theory, IP Statutes
Literature on theoretical underpinnings of copyright
under The Copyright Act, 1957,1 and copyright under
The Designs Act, 2000,2 as discovered or constructed
by the Supreme Court of India (Supreme Court) is
conspicuous by absence.3 These statutory rights shall
be referred to as „two copyrights‟ in this paper.An
analysis of theoretical underpinnings of these two
copyrights is necessary to appreciate the bases and
reasons thereof to strengthen the respect for and
effective enforcement of these exclusionary rights.
Theories provide a framework for meaningful
engagement in the debate relating to the subject
matter under study. Knowledge of theoretical
framework helps identify and question the
assumptions thereof and the validity of logical
arguments flowing from there. An analysis without
theoretical framework is unguided, rootless and
infertile.
The Court generally weaves theories around the
naked provisions of Statutes to ratiocinate and build
justification. Ratiocination is the hallmark of judicial
process in the common law system. It helps promote
realization of non-negotiable values of fairness,
reasonableness and non-arbitrariness. Ratiocination
brings about certainty, calculability, and predictability
and helps people respect, accept, plan and organize
their affairs within the framework of law. The
Supreme Court is not expected to invoke or build a
theoretical framework to justify its decisions. Judicial
reasoning is a process much rigorous than mere
theorization. Judicial reasoning is a persistent quest
for search of a ground that cannot be further
grounded. A ground which is both theoretical and
practical.A ground which is both efficient and just.
Judicial search for such a ground is necessitated for
balancing the competing interests of the right holders,
competitors and society at large. These competing
interests define the contours of discourse on
intellectual property rights (IP) in general and of the
two rights in particular.
It is generally accepted that knowledge should be
publicijuris necessary for human flourishing and
development of society. IP is considered to be
aneffective and necessary device to encourage
creation of new knowledge. Idea of “exclusivity” is
central to IP. IP may restrict access to and use of
—————
Email: araza@jgu.edu.in.
RAZA: THEORETICAL UNDERPINNINGS OF COPYRIGHT AND DESIGN LAWS
221
knowledge without the authorization of right holder.
Exclusivity, therefore, does not fit within the scheme
of publici juris.
IP is a negative-private property to exclude or
prevent others. IP is not a positive right. For Socialists
and Communists, private property is bad. IP is also a
monopoly to exclude others. Monopoly is considered
an evil not only in socialists‟ economies, but also in
capitalist systems. Competition is the soul of a
capitalist economy. Monopoly is antithetical to
competition. At Common Law, however, competition
and monopoly were born together. The Statute of
Monopolies, 1623 enacted in England sought to curb
monopolies but recognized grant of patents for
inventions as an exception to competition. It is
believed that the monopoly in the form of IP is in
furtherance to competition, i.e., the monopoly in the
form IP promotes rather than stifling competition by
enforcing exclusive rights to encourage creativity.
The Competition Act, 20024 enacted by the
Parliament of India also recognizes IP as an
exception.5The question, therefore, is why law makes
monopoly enforceable in the form of IP? A related
question is whether rationalization is enough to justify
an evil? These questions are perennial and persistent
and have not been answered in a way which can
convince everyone. Contest between the models of
property regime is also continuous. Neither capitalist
model, nor socialist model, nor communist model has
been able to provide a just and fair compromise
between the public and the private. IP is a dominant
attribute of capitalist model. Therefore, it has all the
strengths and weaknesses of the capitalism. Although,
the Preamble to the Constitution of India declares
India to be „Socialist‟ yet since the year 1991 India is
fast tracking on the path of capitalism. Private
property in general and the IP in particular is an
essential feature of capitalism. Inclusion of IP in the
Agreement establishing World Trade Organization
19946 added unprecedented value to trade in IP and
this inclusion also brought about significant increase
in the number of litigations relating to IP not only in
India but also in other countries.
IP Law, like most of other Indian laws, is a colonial
legacy. The genesis of IP Law in India may be traced
to the time of Transfer of Power from the East India
Company to the British Crown in the year 1858 AD.
For the first time, British Statutes relating to patents
were extended to India. The first IP Statute that
British Parliament enacted for India was the Patents
and Designs Act, 1911,7 and the second Statute was
the Indian Copyright Act, 1914.8 During the British
Raj there was no specific Statute relating to
trademarks. Trademarks were registered under the
Registration Act, 1940. Only three IP, namely: (i)
patents (ii) designs and (iii) copyright were statutorily
recognized before the Independence of India. Trade
secret was and is recognized by Indian common law.
Perhaps this is the reason why entry 49 of List I of
Seventh Schedule to the Constitution of India
recognizes only “Patents, Copyright and Trademark”.
Interestingly all the seven IP Statutes for the time
being in force in India are post-Independence
Statutes, namely: (i) The Copyright Act, 1957,1 & The
Copyright Rules, 1958,9 (ii) The Patents Act, 1970,10
& The Patents Rules, 2003,11 (iii) The Trade Marks
Act, 1999,12 & The Trade Marks Rules, 2002,13 (iv)
The Geographical Indications of Goods (Registration
and Protection) Act, 1999,14 &The Geographical
Indications of Goods (Registration and Protection)
Rules, 2002,15 (v) The Designs Act, 2000,2 &The
Designs Rules, 2001,16 (vi) The Semiconductor
Integrated Circuits Layout-Design Act, 2000,17 &The
Semiconductor Integrated Circuits Layout-Design
Rules, 2001,18 and (vii) The Protection of Plant
Varieties and Farmers‟ Rights Act, 2001,19 & The
Protection of Plant Varieties and Farmers‟ Rights
Rules, 2003.20
In addition to the aforementioned seven Statutes,
some provisions relating to IP have been made in the
Biological Diversity Act, 2002,21 and the Biological
Diversity Rules, 2004.22 There is a draft known as
[Draft] National Innovation Act, 2008,23 which seeks
to promote innovation and provide mechanism for the
protection of confidential information (trade secret).
In all, there are eight types of IP in India. Out of these
eight rights, seven of them have been legislated upon
by the Parliament of India through the aforementioned
seven Statutes. Trade secret is an IP recognized by
courts in India24 but is not legislated upon.
Since IP rights are having statutory and common
law sanctions, the bar of justification of these rights is
not very high. However, the fact that these rights are
species of private monopoly property rights raises the
bar of their justification. In other words, unlike right
to equality, and right to freedom of speech and
expression, IP does not enjoy the ready acceptance
and respect from the public and this fact raises the bar
of its justification. Socialists and communists readily
reject the idea of private property including IP.
J INTELLEC PROP RIGHTS, JULY 2021
222
Generally, the justification of private property
including IP is taken for granted.
No decision of the Supreme Court is available in
which the constitutional validity of any type of IP has
been raised. Since there is a very strong presumption
of constitutionality of a Statute, the burden of proving
the unconstitutionality of any of the IP is very high
for seven out of eight IP which are having statutory
backing.
Theoretical underpinning of decisions on IP by the
Supreme Court is based on English Philosophy
developed by John Locke and Jeremy Bentham. There
are only few Supreme Court decisions on two
copyrights in comparison to the number decisions
relating to other types of IP.25 Maximum number of
judgments is on trademark, then on patents, then on
copyright, and then on designs. No decision of the
Supreme Court is available on geographical
indications, semiconductor integrated circuits, and
protection of plant variety. There are decisions of the
Supreme Court on trade secret. These decisions,
however, relate to the interpretation of the provisions
of Section 27 of the Indian Contract Act, 1872,26
relating to employment contracts. No decision of the
Supreme Court is available for the explicit proposition
that trade secret is an IP.
During the research, it has been found that all the
decisions relating to two copyrights do not identify
theoretical underpinnings thereof.
Although the Supreme Court has deployed only
Labour and Utilitarian theories, yet the Paper refers to
other theoretical frameworks27 to explain, justify or
question IP.Thepaper seeks to identify, describe and
generalize about the theoretical underpinnings of the
decisions of the Supreme Court so far it relates to
„why‟ of two distinct copyrights envisaged by the two
statutes and aims to fill some void in IP literature
particularly relating to theoretical frameworks of the
two statutes.
Copyright under The Copyright Act, 1957:
Theoretical Underpinnings
A total of six Supreme Court decisions invoke the
theoretical framework to justify „why‟ of copyright
under The Copyright Act, 1957.
First decision is Indian Performing Right Society
Ltd v Eastern India Motion Pictures Association.28
Lead opinion was delivered by Justice Jaswant Singh
by use of harmonious construction to avoid the
seeming conflict between the provisions of The
Copyright Act, 1957, (Copyright Act). Lead opinion
did not delve into the theoretical underpinnings of
copyright. The separate but concurring opinion by
Justice Krishna Iyer raised the fundamental questions
about copyright law solely to belight a slightly
penumbral area of the law and to voice a need for
legislative exploration to protect a category now left
in the cold.‟ This penumbral area of law was
described by him „in a cosmic perspective‟ as „a thing
of beauty has no boundary and is humanity‟s property
but in the materialist plane on which artists thrive,
private and exclusive estate in art subsists.‟29 He
reasoned that „Man, the noblest work of the Infinite
Artist, strangely enough, battles for the finite products
of his art and the secular law, operating on the
temporal level, guardian‟s material works possessing
spiritual values. The enigmatic smile of Mona Lisa is
the timeless heritage of mankind but, till liberated by
the prescribed passage of time, the private copyright
of the human maker says, “hands off”.29 Highlighting
the locus of creative mind in economic system, he
observed as:
The creative intelligence of man is displayed in
multiform ways of aesthetic expression but it
often happens thateconomicsystems so operate
that the priceless divinity which we call artistic
or literary creativity in man is exploited and
masters, whose works are invaluable, are
victims of piffling payments‟.29(emphasis added)
Focusing on coexistence of twin rights in musical
work and cinematograph films, Justice Krishna Iyer
notes as:
Our copyright statute protects the composite
cinematograph work produced by lay-out of
heavy money and many talents but does not
extinguish the copyrightable component parts
into. The music which has merged, through the
sound track, into the motion picture, is
copyrighted by the producer but, on account of
this monopoly, the music composer‟s copyright
does not perish. The twin rights can coexist,
each fulfilling itself in its delectable
distinctiveness. Section 14 has, in its careful
arrangement of the rights belonging to each
copyright, has a certain melody and harmony to
miss which is to lose the sense of the Scheme.‟30
Justice Krishna Iyer was the only judge to notice
and explain the un-Indian feature of the Copyright
Law in the following words:
RAZA: THEORETICAL UNDERPINNINGS OF COPYRIGHT AND DESIGN LAWS
223
A somewhat un-Indian feature we noticed in the
Indian Copyright Act falls to be mentioned. Of
course, when our law is intellectual „borrowing
from British reports, as admittedly it is, such
exoticism is possible.‟30
In his inimitable style, Justice Krishna Iyer
described the essence of music in musical words as
under:
„Therefore, copyrighted music is not the soulful
tune, the superb singing, the glorious voice or
the wonderful rendering. It is the melody or
harmony reduced to print, writing or graphic
form. The Indian music lovers‟ throng to listen
and be enthralled or enchanted by the nada
brahma, the sweet concord of sounds, the rags,
the bhava, the laya and the sublime or exciting
singing.‟30
Highlighting the requirement of fixation or
reification of music on a tangible medium, Justice
Iyer wrote as follows:
Printed music is not the glamour or glory of it,
by and large, although the content of the poem
or the lyric or the song does have appeal.
Strangely enough, „author‟, as defined in
Section 2(d),31 in relation to a musical work, is
only the composer and Section 16 confines
„copyright‟ to those works which are recognized
by the Act. This means that the composer alone
has copyright in a musical work. The singer has
none. This disentitlement of the musician or
group of musical artists to copyright is un-
Indian, because the major attraction which lends
monetary value to a musical performance is not
the music maker, so much as the musician.
Perhaps, both deserve to be recognized by the
copyright law.‟32(emphasis added)
He offered a suggestion to the Parliament to belight
the penumbral area of copyright law in the following
words:
I make this observation only because Act in one
sense, depends on the ethos and the aesthetic
best of a people; and while universal protection
of intellectual and aesthetic property of creators
of „works‟ is an international obligation, each
country in its law must protect such rights
wherever originality is contributed. So viewed,
apart from the music composer, the singer must
be conferred a right. Of course, lawmaking is
the province of Parliament but the Court must
communicate to the lawmaker such infirmities as
exist in the law extant.‟32
The chasms of Copyright Law as recognized by
Justice Krishna Iyer may be formulated as the chasms
between: (i) the spiritual and the material, (ii) the
humanity‟s property and private property, (iii) the
creator and the master (capitalist) (iv) the colonial
legacy and Indian values, (v) the meaning of “musical
work” in the copyright law sense and the meaning of
music in the Indian sense, (vi) the maker (composer)
of music and the singer, musician or group of musical
artists, (vii) the international obligation and demands
of originality, and (viii) the enacted law and her
infirmities.
Justice Krishna Iyer did not look for support in the
extant theories of IP. He also did not provide the
solution to the problem. Rather he communicated the
problem to the Parliament for appropriate solution.
Had the constitutionality of The Copyright Act been
challenged, perhaps Justice Krishna Iyer instead of
adding a „footnote‟ and „in a sense otiose‟ would have
either dissented or applied his theoretical approach to
the facts of the case and would not have exercised
judicial restraint. His opinion in his own words is
otiose because it does not have any bearing
whatsoever on concrete judgment. Nevertheless, his
opinion is the North Star in the sense of identifying
the infirmities of copyright law. His observation
„Each country in its law must protect such rights
wherever originality is contributed. So viewed, apart
from the music composer, the singer must be
conferred a right‟32 places the highest premium on
originality, originality as the determiner of protection.
In other words, it is the originality which brings the
copyright protection at the central stage. It may be
said that by treating originality Justice Krishna Iyer is
invoking the theories of Locke and Hegel. No
observation made in this case can be extended to
invoking the Utilitarian or Social Planning Theory.
In the most celebrated Full Bench decision in RG
Anandv Delux Films,33 Justice MurtazaFazal Ali
delivered the lead opinion. Justice Jaswant Singh
delivered a separate but concurring opinion in full
agreement with Justice MurtazaFazal Ali. Justice R S
Pathak delivered a separate and concurring opinion.
He would have perhaps dissented but for a concurrent
finding of facts by both the Courts below. As to the
theoretical underpinnings of copyright law, Justice
Fazal Ali noted that the case was of first impression
and observed as under:
J INTELLEC PROP RIGHTS, JULY 2021
224
„[I]t seems. . .that the fundamental idea of
violation of copyright imitation is the violation
of the Eighth Commandment: “Thou shall not
steal” which forms the moral basis of the
protective provisions of The Copyright Act of
1911. It is obvious that when a writer or a
dramatist produces a drama it is a result of his
great labour, energy, time and ability and if any
other person is allowed to appropriate the
labours of the copyrighted work, his act amounts
to theft by depriving the original owner of the
copyright of the product of his labour.‟34
The aforesaid observation clearly invokes Labour
Theory. He further observed that „When an idea is
given embodiment in a tangible form, it becomes the
subject of common-law property rights which are
protected by the courts, at least when it can be said to
be novel and new.‟35
Use of the word “novel” and “new” by the Court
deviates from the well-established principle of
originality under copyright law. Court should have
been careful in choosing the vocabulary. Novelty or
newness is a requirement under patent law. Further,
not every embodiment of an idea into a tangible form
rise to the dignity of originality. Furthermore,
copyright is not merely a common law right but is a
statutory right under Section 16 of The Copyright Act.
Lead opinion invokes the Labour Theory in the
following words:
Nevertheless, it is the unfair appropriation of
the labour of the author whose work has been
infringed that constitutes legal infringement.‟36
Identifying the protectable subject matter under the
Copyright Law, the Court observed as:
Thus, the position appears to be that an idea,
principle, theme, or subject matter or historical
or legendary facts being common property
cannot be the subject matter of copyright of a
particular person. It is always open to any
person to choose an idea as a subject matter and
develop it in his own manner and give
expression to the idea by treating it differently
from others. Where two writers write on the
same subject similarities are bound to occur
because the central idea of both are the same
but the similarities or coincidences by
themselves cannot lead to an irresistible
inference of plagiarism or piracy. Take for
instance the great poet and dramatist
Shakespeare most of whose plays are based on
Greek-Roman and British mythology or
legendary stories like Merchant of Venice,
Hamlet, Romeo Juliet, Julius Caesar etc. But the
treatment of the subject by Shakespeare in each
of his dramas is so fresh, so different, so full of
poetic exuberance, elegance and erudition and
so novel in character as a result of which the
end product becomes an original in itself. In
fact, the power and passion of his expression,
the uniqueness, eloquence and excellence of his
style and pathos and bathos of the dramas
become peculiar to Shakespeare and leaves
precious little of the original theme adopted by
him. It will thus be preposterous to level a
charge of plagiarism against the great
playwright. In fact, throughout his original
thinking, ability and incessant labour
Shakespeare has converted an old idea into a
new one, so that each of the dramas constitutes
a masterpiece of English literature. It has been
rightly said that “every drama of Shakespeare is
an extended metaphor”. Thus, the fundamental
fact which has to be determined where a charge
of violation of the copyright is made by the
plaintiff against the defendant is to determine
whether or not the defendant not only adopted
the idea of the copyrighted work but has also
adopted the manner, arrangement, situation to
situation, scene to scene with minor changes or
super additions or embellishment here and
there. Indeed, if on a perusal of the copyrighted
work the defendant‟s work appears to be a
transparent rephrasing or a copy of a
substantial and material part of the original, the
charge of plagiarism must stand proved. Care
however must be taken to see whether the
defendant has merely disguised piracy or has
actually reproduced the original in a different
form, different tone, different tenor so as to
infuse a new life into the idea of the copyrighted
work adapted by him. In the latter case, there is
no violation of the copyright.‟37
The lead opinion declares that one who produces a
work in the copyright law sense, deserves that the
fruit of his labour receives legal protection.
Justice Pathak observed that „[I]t is always
possible for a person intending to take
advantage of the intellectual effort and labours
of another to so develop his own product that it
RAZA: THEORETICAL UNDERPINNINGS OF COPYRIGHT AND DESIGN LAWS
225
covers a wider field than the area included
within the scope of the earlier product, and in
the common area covered by the two
productions to introduce changes in order to
disguise the attempt at plagiarism.38
The Supreme Court in RG Anand39explicitly talked
about “great labour, energy, time and ability and if
any other person is allowed to appropriate the labours
of the copyrighted work, his act amounts to theft by
depriving the original owner of the copyright of the
product of his labour.” This is an explicit recognition
of Labour Theory of IP. The Supreme Court is not
saying that the work is the extension of the
personality of the author, or copyright serves a social
purpose, or copyright is a thing of social utility, or
copyright is an instrument of social planning. The
Court has declared “Thou shall not steal” as the
“moral basis of the protective provisions of” the
Copyright Law. Invoking the natural right
approach for justification of copyright law can
hardly minimize the chasm between the friends and
foes of copyright law.
In Gramophone Company of India Ltd v
BirendraBahadur Pandey,40Justice O Chinnappa
Reddy delivered the judgment on behalf of the
unanimous Court. The opinion relating to theoretical
underpinning is identified as under:
„An artistic, literary or musical work is the
brainchild of its 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.‟41
It seems that the Supreme Court in this case
invoked the Labour Theory of property by making the
above observation that an artistic, literary or musical
work is the brainchild of its author, the fruit of his
labour and so considered to be his property.
In State of AP v Nagoti Venkataramana,42 the
Supreme Court started to reason from the Statement
of Objects and Reasons to Amendment43 to The
Copyright Act which reads as „Piracy has become a
global problem due to the rapid advances in
technology. It has assumed alarming proportions all
over the world and all the countries are trying to meet
the challenge by taking stringent legislative and
enforcement measures. The problem of piracy and the
necessity for taking sufficient anti-piracy measures
were also voiced by Members of Parliament at the
time of the consideration of the Bill to amend The
Copyright Act.44 Discussing the problem generated
by copyright piracy (infringement), the Supreme
Court observed as under:
Mainly there are three types of piracy, namely,
piracy of the printed word, piracy of sound
recordings and piracy of cinematograph films.
The object of the pirate in all such cases is to
make quick money and avoid payment of
legitimate levies and royalties. In respect of
books, it is estimated that four hundred to five
hundred titles are pirated every year in India
and on each of the pirated titles, the loss to the
Government in the form of tax evasion amounts
approximately to Rs 11,000. Apart from books,
recorded music and video cassettes of films and
TV programs are reproduced, distributed and
sold on a massive scale in many parts of the
world without any remuneration to the authors,
artists, publishers and producers concerned.
The emergence of new techniques of recordings,
fixation and reproduction of audio programs,
combined with the advent of video technology
have greatly helped the pirates. It is estimated
that the losses to the film producers and other
owners of copyright amount to several crores of
rupees. The loss to Government in terms of tax
evasion also amounts to crores of rupees. In
addition, because of the recent video boom in
the country, there are reports that uncertified
video films are being exhibited on a large scale.
A large number of video parlors have also
sprung up all over the country and they exhibit
such films recorded on video tapes by charging
admission fees from their clients. In view of
these circumstances, it is proposed to amend
The Copyright Act suitably to combat effectively
the piracy that is prevalent in the country.‟45
The basic reason underlying the approach of the
Supreme Court in Nagoti Venkataramana,42 seems to
be loss of revenue to the State, i.e., pirated copies of
the copyrighted materials help promote the problem
of tax evasion. In other words, lost revenue is a loss to
the public at large for functions of the State including
the welfare functions cannot be adequately discharged
without collection of taxes. Protecting copyright,
therefore, not only protects the interests of the owner
of copyright but it also generates revenue for the
State. This approach of the Supreme Court is purely
Utilitarian, i.e., protection of copyright is in the
interest of the State and the public at large.
J INTELLEC PROP RIGHTS, JULY 2021
226
In Gramophone Co of India Ltd v Mars Recording
Pvt Ltd,46the unanimous decision on behalf of the
Court was delivered by Justice RajendraBabu. In this
case, no opinion as to the theoretical basis of
copyright was expressed. Perhaps, had the case been
decided on merit by the Supreme Court, there would
have been some opinion in this regard. The same
remained the position of the Supreme Court in Exphar
SA v Eupharma Laboratories Ltd47and Dhodha House
v S K Maingi.48
In Entertainment Network (India) Ltd vSuper
Cassette Industries Ltd,49 the judgement on behalf of
the unanimous Court was delivered by Justice S B
Sinha.As to the theoretical underpinning of copyright,
the relevant observation of the Supreme Court is
reproduced as:
There cannot be any doubt whatsoever that an
artistic, literary or musical work is the
brainchild 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. The rights
and obligations of the author ought to be found
out within the four corners of the Act. It is not
necessary to dilate more upon these aspects of
the matter as the object behind enacting the Act
is absolutely clear and explicit. It creates a
monopoly in favor of the author. Copyright also
creates a monopoly in favor of the copyright
society. What requires protection is unlawful
reproduction of the author‟s work by others. It is
the long period which encourages the authors to
create works of literature, music and art.‟50
The Supreme Court cited the observation of the
Court in Gramophone Company of India Ltd51 and
further cited from Copinger and Skone James on
Copyright52 that
Finally, it is considered a social requirement in
the public interest that authors and other rights
owners should be encouraged to publish their
work so as to permit the widest possible
dissemination of works to the public at large.
These four fundamental principles are
cumulative and interdependent and are applied
in the justification of copyright in all countries,
although different countries give varying
emphasis to each of them. To generalize, it is
true to say that 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 Continental law countries with civil
law systems, the natural law argument and the
protection of authors are given first place.‟53. . .
.„The protection of copyright, along with other
IP, is considered as a form of property worthy of
special protection because it is seen as
benefiting society as a whole and stimulating
further creative activity and competition in the
public interest.‟53
The Court described the essential features of The
Copyright Act as under:
The 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 favor 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.‟54
The Court explained the philosophy of Copyright
Law as under:
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. The Act confers on the copyright owner
the exclusive right to do the various acts
enumerated in Section 14. An infringement of
copyright occurs if one of those acts is done
without the owner's license. 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 defined in Section 2 (j). But
that does not mean, as would be noticed from
the discussions made. . . 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
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227
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.‟55
Explaining the scheme of The Copyright Act, the
Court observed as under:
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.‟56
As to the question whether the concept of property
is applicable to copyright, the Court observed as:57
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-a-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. The activist approach of the
European Court of Human Rights is quite visible
from the judgment of Beaulane Properties Ltd v
Palmer58 and JA Pye (Oxford) Ltd v Graham‟.59
Explaining the significance of property right, the
Court observed as under:
This Court recognized need of incorporating
the same principle for invoking the rule of strict
construction in such matters in PT
Munichikkanna Reddy60 stating “Adverse
possession is a right which comes into play not
just because someone loses his right to reclaim
the property out of continuous and willful
neglect but also on account of possessor‟s
positive intent to dispossess. Intention to possess
cannot be substituted for intention to dispossess.
Mere possession for howsoever length of time
does not result in converting the permissible
possession into adverse possession.”57
Further, in Peter Smith v Kvaerner Cementation
Foundations Ltd,61 the Court allowed the appellant to
reopen the case despite a delay of four years as he had
been denied the right to which Article 6 of the
European Convention on Human Rights entitled him
to a fair hearing before an independent and impartial
tribunal.‟57
Elucidating the nature of property right, the Court
observed as under:
But the right of property is no longer a
fundamental right. It will be subject to
reasonable restrictions. In terms of Article 300A
of the Constitution, it may be subject to the
conditions laid down therein, namely, it may be
wholly or in part acquired in public interest and
on payment of reasonable compensation.‟62
As to the interface of private property and public
interest, the Court observed as:
What would be a public interest? Would it
depend upon the facts and circumstances of each
case and the provisions of the statute? General
meaning of the word “public policy” has always
been held to be an unruly horse by this Court. . .
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.62
The Supreme Court reiterated the opinion
expressed in Gramophone Company of India Ltd63 as
to the theoretical underpinning of copyright by
invoking the Labour Theory. However, while citing
from Copinger and Skone James on Copyright, the
Court emphasized that copyright is “considered a
social requirement in the public interest that authors
and other rights owners should be encouraged to
publish their work so as to permit the widest possible
dissemination of works to the public at large.This
J INTELLEC PROP RIGHTS, JULY 2021
228
observation is based on Utilitarian Theory. The Court
is invoking both the Labour Theory and Utilitarian
Theories simultaneously. Still quoting from Copinger
and Skone James on Copyright, the Court noted “To
generalize, it is true to say that 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
Continental law countries with civil law systems, the
natural law argument and the protection of authors are
given first place.” However, the Court did not
explicitly identify whether the Indian law gives more
weight to social and economic arguments or to the
natural law argument. It appears that the Court was
tracing the theoretical underpinnings of the copyright
law in both the common law and Continental law
traditions. The Court further quoted from Copinger
and Skone James on Copyright as“The protection of
copyright, along with other IPR, is considered as a
form of property worthy of special protection because
it is seen as benefiting society as a whole and
stimulating further creative activity and competition
in the public interest.”
While describing the essential features of The
Copyright Act, the Court noted that “The 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.” This observation of the
Court traces the theoretical underpinning of copyright
law in the Utilitarian Theory.
The Court also observed that copyright is a
property right. Being a property right it is
constitutional right. The Court further noted that
copyright is a human right. Concluding the discussion
as to the theoretical underpinnings of copyright the
Court observed, “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.”
It may be said that the Supreme Court in
Entertainment Network (India) Ltd,49 traced the
theoretical underpinnings of copyright in both the
Labour and the Utilitarian Theories. However, it
placed the Utilitarian Theory at the highest pedestal in
comparison to the Labour Theory. In other words, the
Court declared that Labour Theory may justify the
existence of copyright but it may not justify the
exercise of copyright. In case of conflict between the
interest of the fruit of labour and social interest the
former must yield to and succumb to the latter. The
justification of the copyright lies in the end of social
purpose. In other words, the Court declared that
copyright is a means to achieve the ends of creativity
and dissemination of knowledge, i.e., copyright as a
monopoly can be only tolerated to the extent it serves
social purposes of creativity and dissemination of
knowledge. In the light of this judgment, it may be
said that mechanism evolved by the Court for
minimizing the chasm between the friends and foes of
copyright is to primacy to public interests of creativity
and dissemination of knowledge over the monopoly in
the name of copyright coming into existence due the
labour of the author.
In Eastern Book Company v DB Modak,64the
judgment on behalf of the unanimous Court was
delivered by Justice P PNaolekar.Describing the
theoretical basis of copyright, the Supreme Court
observed as:
The copyright, protection finds its justification in
fair play. When a person produces something with
his skill and labour, it normally belongs to him and
the other person would not be permitted to make a
profit but of the skill and labour of the original
author and it is for this reason The Copyright Act
gives to the authors certain exclusive rights in
relation to the certain work referred in the Act.
The object of the Act is to protect the author of the
copyright work from an unlawful reproduction or
exploitation of his work by others. Copyright is a
right to stop others from exploiting the work
without the consent or assent of the owner of the
copyright. A Copyright Law presents a balance
between the interests and rights of the author and
that of the public in protecting the public domain,
or to claim the copyright and protect it under the
copyright statute. One of the key requirements is
that of originality which contributes, and has a
direct nexus, in maintaining the interests of the
author as well as that of public in protecting the
matters in' public domain. It is a well-accepted
principle of copyright law that there is no
copyright in the facts per se, as the facts are not
created nor have they originated with the author
of any work which embodies these facts. The issue
of Copyright is closely connected to that
of commercial viability, and commercial
consequences and implications.‟65
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229
Tracing the development of Copyright Law, the
Court noted that „The development of Copyright Law
in India is closely associated with the British
Copyright Law Statute of Anne, the first Copyright
Act in England, was passed in 17th century which
provided that the author of any book already printed
will have the sole right of printing such book for a
term mentioned, therein. Thereafter, came the Act of
1814, and then the Act of 1842, which repealed the
two earlier Acts of 1709 and 1814. The Copyright Act
of 1911, in England had codified and consolidated the
various earlier Copyright Acts on different works.
Then came The Copyright Act of 1956. In India, the
first Copyright Act was passed in 1914. This was
nothing but a copy of The Copyright Act of 1911, of
United Kingdom with suitable modifications to make
it applicable to the then British India. The Copyright
Act of 1957, which is the current statute, has followed
and adopted the principles and provisions contained in
the UK Act of 1956, along with introduction of
many new provisions. Then came The Copyright
(Amendment) Act 1983, which made a number of
amendments to the Act of 1957, and The Copyright
(Amendment) Act 1984, which was mainly
introduced with the object to discourage and prevent
the widespread piracy prevailing in video film and
records. Thereafter, The Copyright (Amendment) Act,
1994, has effected many major amendments in The
Copyright Act of 1957.‟65
As to the nature of copyright, the Court observed as
under:
„Copyright is purely a creation of the statute
under the 1957 Act. What rights the author has
in his work by virtue of his creation, are defined
in Sections 14 and 17 of the Act. These are
exclusive rights, but subject to the other
provisions of the Act. In the first place, the work
should qualify under the provisions of Section
13, for the subsistence of copyright. Although
the rights have been referred to as exclusive
rights, there are various exceptions to them
which are listed in Section 52.‟66
After discussing decisions of various Courts, the
Court described the threshold requirement of
copyright protection as:
These decisions are the authority on the
proposition that the work that has been
originated from an author and is more than a
mere copy of the original work, would be
sufficient to generate copyright. This approach
is consistent with the “sweat of the brow”
standards of originality. The creation of the
work which has resulted from little bit of skill,
labour and capital are sufficient for a copyright
in derivative work of an author. Decisions
propounded a theory that an author deserves to
have his or her efforts in producing a work,
rewarded. The work of an author need not be in
an original form or novel form, but it should not
be copied from another‟s work, that is, it should
originate from the author. The originality
requirement in derivative work is that it should
originate from the author by application of
substantial degree of skill, industry or
experience. Precondition to copyright is that
work must be produced independently and not
copied from another person. Where a
compilation is produced from the original work,
the compilation is more than simply a
rearranged copyright of original, which is often
referred to as skill, judgment and or labour or
Capital. The copyright has nothing to do with
originality or literary merit. Copyrighted
material is that what is created by the author by
his skill, labour and investment of capital,
maybe it is derivative work. The courts have
only to evaluate whether derivative work is not
the end-product of skill, labour and capital
which is trivial or negligible but substantial. The
courts need not go into evaluation of literary
merit of derivative work or creativity aspect of
the same.‟67
In DB Modak,64 the Supreme Court emphasized
that The Copyright Protection finds its justification
in fair play.” The fair play between the person who
produces something with his skill and labour, on the
one hand and public interest. The fair play requires
that the produce should normally belong to the
producer and the other person should not be permitted
to make a profit out of the produce of the skill and
labour of the original author. The fair play further
requires the copyright law to present a balance
between the interests and rights of the author and that
of the public in protecting the public domain, or to
claim the copyright and protect it under the copyright
statute. Describing the requirement of originality as
the key requirement contributing and having a direct
nexus, in maintaining the interests of the author as
well as that of public in protecting the matters in
public domain. Elaborating the requirement of
J INTELLEC PROP RIGHTS, JULY 2021
230
originality, the Court note that, It is a well-accepted
principle of copyright law that there is no copyright in
the facts per se, as the facts are not created nor have,
they originated with the author of any work which
embodies these facts.” The Court also emphasized the
connection between copyright with commercial viability
and commercial consequences and implications.
In DB Modak,64 the Supreme Court invoked both
the Labour and Utilitarian Theories. In the opinion of
the Court the chasm between the friends and foes of
copyright can be minimized by a fair balancing of the
interest of the author and that of the public by
protecting public domain. However, the Court did not
make a distinction between the interest of the author
and the interest of the owner of copyright for in most
of the cases the balancing is required to be done
between the interest of the owner of the copyright and
that of the public. What justifies ownership in
copyright where the owner of the copyright is a
person other than the author of the work. Whether it is
the money, investment and capital that justifies
copyright in such cases?
In Dabur India Ltd v KR Industries,68Academy of
General Education, Manipalv B Malini
Mallya,69Phonographic Performance Ltd v
Entertainment Network (India) Ltd70 and Paragon
Rubber Industries v Pragathi Rubber Mills,71 the
Supreme Court did not discuss or expressed any
opinionas to the theoretical underpinnings of
copyright.
In KrishkaLulla v ShyamVithalrao Devkatta,72 the
Supreme Court observed as:
„[N]o copyright subsists in the title of a literary
work and a plaintiff or a complainant is not
entitled to relief on such basis except in an
action for passing off or in respect of a
registered trademark comprising such titles.
This does not mean that in no case can a title be
a proper subject of protection against being
copied as held in Dicks v Yates73 where Jessel
MR said “there might be copyright in a title as
for instance a whole page of title or something
of that kind requiring invention” or as observed
by Copinger.‟74
In Krishka Lulla,75 the Supreme Court reiterated
the point that copyright protection can only be
extended to „work‟ in the copyright law sense. In
other words, the person must put in some labour,
some skill, some judgment to claim copyright
protection. The Court seems to have invoked the
Labour Theory for copyright protection. In most of
the cases, the Court invoked the Labour Theory for
copyright protection. In some of the decisions, both
the Labour Theory and Utilitarian Theory have been
invoked by the Supreme Court.
No decision of the Supreme Court identified the
real rub of the problem, i.e., people do not criticize
copyright because it protects the interest of the
author. Foes of copyright claim that the fruit of the
labour, skill and judgment of the author is
appropriated by the employer, by the business houses,
by the government. What justifies this appropriation?
Can this appropriation be called a fair play? We need
a theory which can justify or demolish or at least may
construct a middle path which brings the ownership
(not authorship) of copyright at the center
stage.Following seeks to examine theoretical
underpinnings of copyright under The Designs Act,
2000.
Copyright under The Designs Act, 2000:
Theoretical Underpinnings
Only one decision of the Supreme Court deals with
the theoretical underpinnings of copyright under The
Designs Act, 2000 (Designs Act).
In Bharat Glass Tube LtdvGopal Glass Works
Ltd,76 the decision on behalf of the unanimous Court
was delivered by Justice A K Mathur. The Court
reproduced the Statement of Objects and Reasons of
Bill introduced for the enactment of The Designs
Actwhich reads as „Since the enactment of The
Designs Act, 1911, considerable progress has been
made in the field of science and technology. The legal
system of the protection of industrial designs requires
to be made more efficient in order to ensure effective
protection to registered designs. It is also required to
promote design activity in order to promote the design
element in an article of production. The proposed
Design Bill is essentially aimed to balance these
interests. It is also intended to ensure that the law does
not unnecessarily extent protection beyond what is
necessary to create the required incentive for design
activity while removing impediments to the free use
of available designs‟.77
Explaining the purpose of The Designs Act, the
Court observed as:
„In fact, the sole purpose of this Act is protection of
the IPR of the original design for a period of ten years
or whatever further period extendable. The object
behind this enactment is to benefit the person for his
research and labour put in by him to evolve the new
RAZA: THEORETICAL UNDERPINNINGS OF COPYRIGHT AND DESIGN LAWS
231
and original design. This is the sole aim of enacting
this Act (emphasis added).
It has also laid down that if design is not new or
original or published previously then such design
should not be registered. It further lays down that if it
has been disclosed to the public anywhere in India or
in any other country by publication in tangible form
or by use or in any other way prior to the filing date,
or where applicable, the priority date of the
application for registration then such design will not
be registered or if it is found that it is not significantly
distinguishable from known designs or combination
of known designs, then such designs shall not be
registered. It also provides that registration can be
cancelled under Section 19 of The Designs Act if
proper application is filed before the competent
authority i.e., the Controller that the design has been
previously registered in India or published in India or
in any other country prior to the date of registration,
or that the design is not a new or original design or
that the design is not registerable under this Act or
that it is not a design as defined in Clause (d) of
Section 2. The Controller after hearing both the
parties if satisfied that the design is not new or
original or that it has already been registered or if it is
not registerable, cancel such registration and
aggrieved against that order, appeal shall lie to the
High Court. These prohibitions have been engrafted
so as to protect the original person who has designed
a new one by virtue of his own efforts by researching
for a long time (emphasis added). The new and
original design when registered is for a period of ten
years. Such original design which is new and which
has not been available in the country or has not been
previously registered or has not been published in
India or in any other country prior to the date of
registration shall be protected for a period of ten
years. Therefore, it is in the nature of protection of the
IPR. This was the purpose as is evident from the
statement of objects and reasons and from various
provisions of the Act.‟78
The Court also quoted from a book79 as under:
„Object of registration of designs. The protection
given by the law relating to designs to those who
produce new and original designs, is primarily to
advance industries, and keep them at a high level
of competitive progress.80(emphasis added)
Explaining the reason of copyright under The
Designs Act, the Court observed as:
Those who wish to purchase an article for use
are often influenced in their choice not only by
practical efficiency but the appearance.
Common experience shows that not all are
influenced in the same way. Some look for
artistic merit. Some are attracted by a design
which is a stranger or bizarre. Many simply
choose the article which catches their eye.
Whatever the reason may be one article with a
particular design may sell better than one
without it: then it is profitable to use the design.
And much thought, time and expense may have
been incurred in finding a design which will
increase sales. The object of design registration
is to see that the originator of a profitable
design is not deprived of his reward by others
applying it to their goods‟.80(emphasis added)
Explaining the purpose of The Designs Act, the
Court observed as:
The purpose of The Designs Act is to protect
novel designs devised to be applied to (or in
other words, to govern the shape and
configuration of) particular articles to be
manufactured and marketed commercially. It is
not to protect principles of operation or
invention which, if profitable at all, ought to be
made the subject-matter of a patent. Nor is it to
prevent the copying of the direct product of
original artistic effort in producing a drawing.
Indeed, the whole purpose of a design is that it
shall not stand on its own as an artistic work
but shall be copied by embodiment in a
commercially produced artefact. Thus, the
primary concern, is what the finished article is
to look like and not with what it does and the
monopoly provided for the proprietor is effected
by according not, as in the case of ordinary
copyright, a right to prevent direct reproduction
of the image registered as the design but the
right, over a much more limited period, to
prevent the manufacture and sale of article of a
design not substantially different from the
registered design. The emphasis therefore is
upon the visual image conveyed by the
manufactured article.‟80
The Court in Bharat Glass Tube Ltd,76 recognized
the following justifications of copyright under The
Designs Act, namely:
J INTELLEC PROP RIGHTS, JULY 2021
232
(i) The object behind this enactment is to benefit the
person for his research and labour put in by him
to evolve the new and original design. This is the
sole aim of enacting this Act; and
(ii) The protection given by the law relating to
designs to those who produce new and original
designs, is primarily to advance industries, and
keep them at a high level of competitive progress.
The first justification (a) reiterates the Natural
Right justification of copyright under The Designs
Act and second justification (b) bases the justification
in both Natural Right Theory and Utilitarian Theory
for the emphasis in this approach is that protection of
design is a means to achieve the ends of advancement
of industries and keep them at a high level of
competitive progress.
In Godrej Sara Lee Ltd v Reckitt Benckiser
Australia Ltd,81 Justice AltamasKabir delivered the
unanimous opinion on behalf of the Court. No opinion
as to the theoretical underpinnings of Design Law was
expressed in this case.
Though, only two decisions of the Supreme Court
are available on Design Law and only in one of the
decisions, the Court explained the theoretical basis of
Design Law, yet the Court articulated the reasons very
clearly. The first object that the Court identified is to
encourage creative minds to come up with new
designs by putting in their labour and research. The
Court called it the “sole aim” of The Designs Act. The
Court, however, did not stop and proceeded to
observe that creation of “new and original design” is
not an end by and itself rather than the protection of
such designs is “primarily to advance industries” and
“keep them at a high level of competitive progress.”
In other words, the labour put in by the producer of
new and original design promotes the advancement of
industries and keep them at a high level of
competitive progress.
Conclusion
An analysis of the decisions of the Supreme Court
reveals that in no case relating to two copyrights the
constitutional validity of these statutory copyrights
was challenged. In a sense, therefore, there was no
need to engage in philosophical discourse. Be that as
it may, once the Court was engaged in such a
discourse, it was expected that the Court would apply
judicial standards to rigorously scrutinize theoretical
underpinning of two copyrights from all possible
angles. It was also expected that names of theoretical
frameworks with the names of their proponents
should have been referred. Nonetheless, the idea
underlying these two theoretical frameworks is very
much present in the decisions of the Supreme Court.
Initially the Supreme Court invoked only Labour
Theory to justify „why‟ of copyright under The
Copyright Act but later on the Court employed both
the natural right and utilitarian justifications for
copyright. The Court completely ignored the inherent
distinction between the two theoretical frameworks.
The Court did not refer to Bentham‟s description of
Labour Theory as „nonsense on stilts‟.82 The Court
nowhere referred to John Locke‟s criticism of
copyright.83 The Court also did not notice the inherent
distinction between the „intangible‟ subject matter of
two copyrights and „tangible‟ subject matter of private
property for which these theoretical frameworks were
constructed. Mechanical application of these
theoretical frameworks could have been avoided and
judicial standards of fairness and reasonableness
should have been used to construct a sound and
objective justification as to „why‟ of two copyrights.
In the opinions of the Supreme Court, the author
deserves a copyright for he puts in his labour, skill,
judgment, and capital and therefore the fruit of his
labour must belong to him. However, this requirement
of labour, skill, judgment, and capital has been
modified in DB Modak,84 in cases of reporting of
judgments of Courts, as skill and judgment.
Nevertheless, the idea of applying intellectual labour is
central to copyright justification. The Court also
recognized that protection of copyright also serves
social purpose. The Supreme Court is of the opinion
that copyright protection finds its justification in fair
play. The object of The Copyright Act is to protect the
author of the copyright work from an unlawful
reproduction or exploitation of his work by others. A
copyright law presents a balance between the interests
and rights of the author and that of the public in
protecting the public domain, or to claim the copyright
and protect it under the copyright statute. One of the
key requirements is that of originality which
contributes, and has a direct nexus, in maintaining the
interests of the author as well as that of public in
protecting the matters in public domain. The Court also
emphasized the significance of copyright in terms of
revenue to the State. The black or grey marketing of
copyrighted materials has been identified as one of the
reasons of criminalizing copyright infringements. This
is clearly a utilitarian justification.
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233
An analysis of cases relating to copyright under
The Designs Act reveals that: (i) the object behind
The Designs Act is to benefit the person for his
research and labour put in by him to evolve the new
and original design. This is the sole aim of enacting
theDesigns Act, and (ii) the protection given by the
law relating to designs to those who produce new and
original designs, is primarily to advance industries,
and keep them at a high level of competitive progress.
The first justification reiterates the Labour Theory
justification of copyright under The Designs Act and
second justification bases the justification in both
Labour Theory and Utilitarian Theory for the
emphasis in this approach is that protection of design
is a means to achieve the ends of advancement of
industries and keep them at a high level of
competitive progress.
It may be concluded that the Court seems to have
used both the theoretical frameworks as supplementary
and complimentary to each other. Later judgments of
the Court lay primary emphasis on Utilitarian Theory
to justify the two copyrights. In the later judgments,
Labour Theory has been assigned the supporting role to
the Utilitarian Theory. The Supreme Court has not said
that only because someone has come up with an IP
therefore, he is entitled to exclude others from making
and using it. Current approach of the Supreme Court to
two copyrights may be described as utilitarian.Since
this is an analytical study, no suggestion is offered as to
the reform in the law. However, it is suggested that
since the extant theoretical frameworks are wanting as
they do not factor the problem of appropriation of fruit
of labour of the author or inventor by the big or small
corporate or business houses. The extant theoretical
frameworks, therefore, cannot provide a convincing
explanation for the vices of IP. Since IP is a species of
property and shares only attribute of right to exclude
others, the wholesale import and mechanical extension
of theoretical frameworks of property rights in
tangibles cannot fully explain the nuances of IP in
intangibles. Hence, there is a need to construct a theory
of IPwhich can provide a reasonableand convincing
explanation making out a strong case for a fair and
equitable regime of IP in general and the two
copyrights in particular.
References
1 Act 14 of 1957.
2 Act 16 of 2000.
3 In addition to other sources visited and literature reviewed,
an attempt has also been made to visit the online repository
of the Journal of Intellectual Property Rights (JIPR),
http://nopr.niscair.res.in/handle/123456789/45 (accessed on 5
July 2021) to find whether any paper related to theoretical
underpinnings of copyright or design laws has been
published. A review of the papers published in JIPR from
Volume 1(1) [January 1996] to Volume 26(1) [January 2021]
reveals that no paper focusing on the theoretical
underpinnings of copyright and designs laws in particular or
intellectual property rights in general has been published.
4 Act 12 of 2003.
5 Section 3(5)(i) of the Competition Act, 2002.
6 Official website of WTO; https://www.wto.org/english/
docs_e/legal_e/04-wto.pdf (accessed on 2 July 2021).
7 Act 2 of 1911.
8 Act 3 of 1914.
9 SRO 270 dated 21 January 1958 published in the Gazette of
India, Extraordinary, Part II, Section 3 (i) dated 21 January
1958.
10 Act 39 of 1970.
11 SO 493(E) dated 2 May 2003 published in the Gazette of
India, Extraordinary, Part II, Section 3 (ii) dated 2 May 2003.
12 Act 47 of 1999.
13 GSR 114(E) dated 26 February 2002 published in the Gazette
of India, Extraordinary, Part II, Section 3 (i) dated 26
February 2002.
14 Act 48 of 1999.
15 GSR 176(E) dated 8 March 2002 published in the Gazette of
India, Extraordinary, Part II, Section 3 (i) dated 8 March
2002.
16 SO 414(E) dated 11 May 2001 published in the Gazette of
India, Extraordinary, Part II, Section 3 (ii) dated 11 May
2001.
17 Act 37 of 2000.
18 GSR 892(E) dated 10 December 2001 published in the
Gazette of India, Extraordinary, Part II, Section 3(ii) dated 10
December 2001.
19 Act 53 of 2001.
20 GSR 738(E) dated 12 September 2003 published in the
Gazette of India, Extraordinary, Part II, Section 3(i) dated 12
September 2003.
21 Act 18 of 2003.
22 GSR 261 (E) dated 15 April 2004 published in the Gazette of
India, Extraordinary, Part II, Section 3 (i) dated 15 April
2004.
23 National Innovation Foundation, https://nif.org.in/ (accessed
on 1 July 2021).
24 Diljeet Titus v Alfred A Adebare2006 (32) PTC 609 (Del).
25 The judgments of the Supreme Court on justification of
copyright and designs laws have been analyzed in a
chronological order from the date of establishment of the
Supreme Court on 28 January 1950.
26 Act 9 of 1872.
27 Panesar S, Theories of Private Property in Modern Property
Law, Denning Law Journal, 15 (2000) 113-138; Hettinger C
H, Justifying Intellectual Property, Philosophy and Public
Affairs, 18 (1989) 31-52.
28 [1977] 3 SCR 206.
29 Indian Performing Right Society Ltd v Eastern India Motion
Pictures Association[1977] 3 SCR 206, 223.
J INTELLEC PROP RIGHTS, JULY 2021
234
30 Indian Performing Right Society Ltd v Eastern India Motion
Pictures Association[1977] 3 SCR 206, 224.
31 Section 2(d) of The Copyright Act reads as: “author”
means,
(i) in relation to a literary or dramatic work, the author of the
work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the
artist;
(iv) in relation to a photograph, the person taking the
photograph;
(v) in relation to a cinematograph film or sound recording,
the producer; and
(vi) in relation to any literary, dramatic, musical or artistic
work which is computer-generated, the person who
causes the work to be created;
Sub-clauses (v) and (vi) were substituted by Act 38 of 1994,
Section 2, with effect from 10 May 1995.
32 Indian Performing Right Society Ltd v Eastern India Motion
Pictures Association[1977] 3 SCR 206, 224.
33 [1979] 1 SCR 218.
34 RG Anandv Delux Films [1979] 1 SCR 218, 231.
35 RG Anandv Delux Films [1979] 1 SCR 218, 234.
36 RG Anandv Delux Films [1979] 1 SCR 218, 235.
37 RG Anandv Delux Films [1979] 1 SCR 218, 248.
38 RG Anandv Delux Films [1979] 1 SCR 218, 262-263.
39 [1979] 1 SCR 218.
40 [1984] 2 SCR 664.
41 Gramophone Company of India Ltd v
BirendraBahadurPandey [1984] 2 SCR 664, 667.
42 [1996] Supp 4 SCR 812.
43 Act 65 of 1984.
44 State of AP v NagotiVenkataramana [1996] Supp 4 SCR 812,
813.
45 State of AP v NagotiVenkataramana[1996] Supp 4 SCR 812,
814.
46 (2002) 2 SCC 103.
47 2004 (28) PTC 251 (SC).
48 2006 (32) PTC 1 (SC).
49 2008 (37) PTC 353 (SC).
50 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 376.
51 Gramophone Company of India Ltd v Birendra Bahadur
Pandey [1984] 2 SCR 664; Entertainment Network (India) Ltd
v Super Cassette Industries Ltd 2008 (37) PTC 353 (SC), 377.
52 Copinger and James S, Copyright, Volume 1(Sweet &
Maxwell, London), 2005, Paras 2-5, p. 27.
53 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 377.
54 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 382.
55 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 383.
56 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 384.
57 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 388.
58 2005 EWHC 817 (Ch).
59 (2002) 3 ALL ER 865.
60 AIR 2007 SC 1753.
61 [2006] EWCA Civ 242.
62 Entertainment Network (India) Ltd v Super Cassette
Industries Ltd 2008 (37) PTC 353 (SC), 389.
63 Gramophone Company of India Ltd v
BirendraBahadurPandey[1984] 2 SCR 664.
64 2008 (36) PTC 1 (SC).
65 Eastern Book Co v DB Modak2008 (36) PTC 1 (SC), 29.
66 Eastern Book Co v DB Modak2008 (36) PTC 1 (SC), 30.
67 Eastern Book Co v DB Modak2008 (36) PTC 1 (SC), 42.
68 (2008) 10 SCC 595.
69 (2009) 4 SCC 256.
70 2011 (4) SCALE 591.
71 2014 (57) PTC 1 (SC).
72 2015 (10) SCALE 718.
73 (1881) 18 Ch D 76.
74 KrishkaLullav ShyamVithalraoDevkatta,2015 (10) SCALE
718, 724.
75 2015 (10) SCALE 718.
76 AIR 2008 SC 2520.
77 Bharat Glass Tube Ltdv Gopal Glass Works Ltd AIR 2008
SC 2520, 2523.
78 Bharat Glass Tube Ltdv Gopal Glass Works Ltd AIR 2008
SC 2520, 2525.
79 Bharat Glass Tube Ltdv Gopal Glass Works Ltd AIR 2008
SC 2520, 2526; Narayanan P, Law of Copyright and
Industrial Designs (Eastern Law House, Kolkata), 4th
Edition, Para 27.01.
80 Bharat Glass Tube Ltdv Gopal Glass Works Ltd AIR 2008
SC 2520, 2526.
81 [2010] 2 SCR 147.
82 Bentham J, Anarchical Fallacies, in Waldron J, (ed),
Nonsense Upon Stilts: Bentham, Burke, and Marx, on the
Rights of Man, (Methuen, London), 1987, p. 53.
83 Locke‟s Memorandum on the 1662 Act (1693) in Bently L
and Kretschmer M, (eds), Primary Sources on Copyright
(1450-1900),
http://www.copyrighthistory.org/cam/tools/request/showReco
rd.php?id=record_uk_1693 (accessed on 10 July 2021); also
see, Hughes J, Locke‟s 1694 Memorandum (and More
Incomplete Copyright Historiographies), Cardozo Arts &
Entertainment Law Journal, 27(555) (2010) 555-572,
http://cardozoaelj.com/wp-content/uploads/Journal%20
Issues/Volume%2027/Issue%203/Hughes.pdf (accessed on
10 July 2021).
84 Eastern Book Co v DB Modak2008 (36) PTC 1 (SC).
ResearchGate has not been able to resolve any citations for this publication.
) to find whether any paper related to theoretical underpinnings of copyright or design laws has been
In addition to other sources visited and literature reviewed, an attempt has also been made to visit the online repository of the Journal of Intellectual Property Rights (JIPR), http://nopr.niscair.res.in/handle/123456789/45 (accessed on 5 July 2021) to find whether any paper related to theoretical underpinnings of copyright or design laws has been published. A review of the papers published in JIPR from Volume 1(1) [January 1996] to Volume 26(1) [January 2021] reveals that no paper focusing on the theoretical underpinnings of copyright and designs laws in particular or intellectual property rights in general has been published.
  • S Panesar
Panesar S, Theories of Private Property in Modern Property Law, Denning Law Journal, 15 (2000) 113-138;
Entertainment Network (India) Ltd v Super Cassette Industries Ltd
Entertainment Network (India) Ltd v Super Cassette Industries Ltd 2008 (37) PTC 353 (SC), 377.