Author Name:   mrinalini9

The copyright act is silent with respect to requirement of publication in copyrighted work. In the article below is an attempt to show with the help of cases that copyright exists even in unpublished work....

Copyright is a bundle of rights which the author can exploit independently for economic benefit by exercising these rights. A Copyright owner may exploit his work himself or license others to exploit any one or more of the rights for a consideration which may be in the form of royalty or a lump sum payment.

1. The right to decide whether to publish or not to publish the work (droit de divulgation--the right of Copyright);
2. The right to claim authorship of a published or exhibited work (droit a la paternite--the right of paternity);
3. The right to prevent alteration and other actions that may damage the author's honour or reputation (droit au respect de loeuvre--the right of integrity).

Section 13 of Copyright Act,1957 mentions works in which copyright subsists.-
(1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,-
(a) original literary, dramatic, musical and artistic works;
(b) cinematograph films; and
(c) sound recordings;

(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless - in the case of an unpublished work other than a [work of architecture] the author is at the date of the making of the work a citizen of India or domiciled in India.

Meaning
According to Berne Convention to publish is to make content available to the public.

In the United States, publication is defined as: the distribution of copies or records of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or records to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.

To perform or display a work "publicly" means –

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

In the case of Amar Nath Sehgal Vs. Union of India (UOI) and Anr. The honourable court has observed that when an author creates a work of art or a literary work, it is possible to conceive of many rights which may flow. The first and foremost right which comes to one's mind is the ''Paternity Right'' in the work, i.e. the right to have his name on the work. It may also be called the 'identification right' or 'attribution right'. The second right which one thinks of is the right to disseminate his work i.e. the 'divulgation or dissemination right'. It would embrace the economic right to sell the work or valuable consideration. Linked to the paternity right, a third right, being the right to maintain purity in the work can be thought of. There can be no purity without integrity. It may be a matter of opinion, but certainly, treatment of a work which is derogatory to the reputation of the author, or in some way degrades the work as conceived by the author can be objected to by the author. This would be the moral right of ''integrity''. Lastly, one can conceive of a right to withdraw from publication ones work, if author feels that due to passage of time and changed opinion it is advisable to withdraw the work. This would be the authors right to ''retraction''.

In the case of Amrita Bazar Patrika Ltd. Vs. Board of High School and Intermediate Education, U.P. and Anr the honourable court contended that the meaning of 'publication' or 'publishing' should be considered to be:

In sculpture "A Sculpture, or bust, is published (Sculpture Copyright Act 1813 (Section 1)) by being publicly exhibited -- (Turner v. Robinson (1860) 10 Ir. Ch. R. 510 (C), Britain v. Hanks Bros. & Co.,(1902) 86 LT 764 (D).

Manner of Publication:
An idea needs to be materialised only then copyright can exist. The Copyright Act, 1957 does not specifically lay down the manner in which the work needs to be published. In India Section 3 of Copyright Act, 1957 says:

For the purposes of this Act, "publication" means making a work available to the public by issue of copies or by communicating the work to the public.

In case of : Warner Bros. Entertainment Inc. and Ors. Vs. Mr. Santosh V.G. Section 3 and 4 spell out the circumstances in which publication of a work is deemed or not deemed to be so, as the case may be. They read as follows:

3. Meaning of publication - For the purposes of this Act, "publication" means making a work available to the public by issue of copies or by communicating the work to the public.

4. When work not deemed to be published or performed in public- Except in relation to infringement of copyright, a work shall not be deemed to be published or performed in public, if published, or performed in public, without the licence of the owner of the copyright.

In para 25 the court has said Publication means in the case of a literary work, "the issue of copies of the work, either in whole or in part, to the public in a manner sufficient to satisfy the reasonable requirements of the public having regard to the nature of the work." (Section 3 as amended by the Copyright (Amendment) Act 1983) . The Act treats infringement of copyright as "infringement of a right" in property. Copyrights considered as unique forms of property and monopoly, are essentiality pecuniary rights. In its most elementary form copyright means "the exclusive right to multiply copies of a book.

In the case The Institute of Chartered Accountants of India Vs. Shaunak H. Satya and Ors. the respondent couldn’t clear the examination and applied for verification of marks. There was no change in his score even after verification. He filed an application asking for information under Right to Information Act, 2005. The ICAI answered questions put by him but refused to answer few questions since the details sought were highly confidential in nature and there was no larger public interest warrants disclosure, the same was denied under Section 8(1)(e) of the Right to Information Act, 2005. He filed a suit before Chief Public Information Officer, not being satisfied with the response received for question number 3 and 5. They are:

· Instructions issued to the examiners, and moderators oral as well as written if any. And
· Model answers if any given to the examiners & moderators if any.

The decision was in favour of ICAI. He filed an appeal before the appellate authority which was dismissed. Accordingly second appeal before Central Information Commission was filed. CIC rejected the appeal by refusing the disclosure of certain queries of respondent. After this a writ was filed before the Bombay High Court which allowed the petition and asked ICAI to answer the queries satisfactorily. This order was challenged before the honourable Supreme Court. The following question arose for consideration:

(i) Whether the instructions and solutions to questions (if any) given by ICAI to examiners and moderators, are intellectual property of the ICAI, disclosure of which would harm the competitive position of third parties and therefore exempted under Section 8(1)(d) of the RTI Act?

The Appellant contended that the information sought as per queries (3) and (5) -that is, instructions and model answers, if any, issued to the examiners and moderators by ICAI cannot be disclosed as they were exempted from disclosure under Clauses (d) and (e) of Sub-section (1) of Section 8 of RTI Act

The court discussed meaning of intellectual property. The term 'intellectual property' refers to a category of intangible rights protecting commercially valuable products of human intellect comprising primarily trade mark, copyright and patent right, as also trade secret rights, publicity rights, moral rights and rights against unfair competition (vide Black's Law Dictionary, 7th Edition, page 813). Question papers, instructions regarding evaluation and solutions to questions (or model answers) which were furnished to examiners and moderators in connection with evaluation of answer scripts, are literary works which are products of human intellect and therefore subject to a copyright. The paper setters and authors thereof (other than employees of ICAI), who are the first owners thereof are required to assign their copyright in regard to the question papers/solutions in favour of ICAI. Below is the extract of the relevant standard communication sent by ICAI in that behalf:

The Council is anxious to prevent the unauthorized circulation of Question Papers set for the Chartered Accountants Examinations as well as the solutions thereto. With that object in view, the Council proposes to reserve all copy-rights in the question papers as well as solutions. In order to enable the Council to retain the copy-rights, it has been suggested that it would be advisable to obtain a specific assignment of any copy-rights or rights of publication that you may be deemed to possess in the questions set by you for the Chartered Accountants Examinations and the solutions thereto in favour of the Council. I have no doubt that you will appreciate that this is merely a formality to obviate any misconception likely to arise later on.

In response to it, the paper setters/authors gave declarations of assignment, assigning their copyrights in the question papers and solutions prepared by them, in favour of ICAI. Insofar as instructions prepared by the employees of ICAI, the copyright vested in ICAI. Consequently, the question papers, solutions to questions and instructions were the intellectual properties of ICAI. The Appellant contended that if the question papers, instructions or solutions to questions/model answers are disclosed before the examination is held, it would harm the competitive position of all other candidates who participate in the examination and therefore the exemption under Section 8(1)(d) is squarely attracted.

The court said that as the first respondent did not dispute that the Appellant is entitled to claim a copyright in regard to the question papers, the ICAI has copyright in the instructions and solutions to questions (if any) given by ICAI to examiners and moderators.

In the case of BLB Institute of Financial Markets Ltd. Vs. MR. Ramakar Jha it was said that the respondent was not only under a legal but also an equitable duty rested to maintain confidentiality with respect to the courses, course material and business of the petitioner as stipulated in the agreement. Relying upon Zee Telefilms Ltd. and Anr. v. Sundial Communications Pvt. Ltd. and Ors. : it was said that the right to restrain the publication of a work using confidential information is a broader right than the proprietary right of copyright, though the law of confidence is different from the law of copyright.

The court further observed that there is a broad and developing equitable doctrine that he who has received information in confidence shall not take unfair advantage of it or profit from the wrongful use or publication of it. He must not make any use of it to the prejudice of him who gave it, without obtaining his consent or, at any rate, without paying him for it. It has for long been clear that the courts can restrain a breach of confidence arising out of a contract or any right to property.... The ground of equitable intervention is that it is unconscionable for a person who has received information on the basis that it is confidential subsequently to reveal that information. Acceptance of information on the basis that it will be kept secret affects the conscience of the recipient of the information. In general it is in the public interest that confidences should be respected.

In the case of Agarwala Publishing Hous Vs. Board of High School and Intermediate Education and Anr. the petition was filed by a firm of publishers challenging an amendment of the Regulations of the Board of High School and Intermediate Examination, U. P., declaring that copyright of the question papers set at examinations conducted by the Board shall vest in the Board and forbidding the publication of such question papers without the Board's permission, which will be granted only if the publisher paid a fee of Rs. 5 for each paper and undertakes not to include in his publication any solutions of the questions.

The petitioner, made the following submissions:
1. No copyright can be claimed in question papers set for examinations because they are not "original literary, dramatic, musical or artistic works", and therefore do not come within the purview of Section 13 of the Indian Copyright Act, 1957.

2. Even if there is any copyright in such a question paper, it belongs to the author (i.e. the person setting the paper) by virtue of Section 17 of the Indian Copyright Act, 1957, and does not belong to the Board.

3. Said amendment cannot be done as Board has no copyright.

The court was of the opinion that no copyright can exist in examination papers because they are not 'original literary works' is untenable. The 'literary works' referred to in Section 13 of the Indian Copyright Act 1.957, are not confined to works of literature in the commonly understood sense, but must be taken to include all works expressed in writing, whether they have any literary merit or not. This is clear from the definition given in Section 2(o) of the Act, which states that "literary work includes tables and compilations". And the word 'original' used in Section 13 does not imply any originality of ideas but merely means that the work in question should not be copied from some other work but should originate in the author, being the product of his labour and skill.

In University of London Press Ltd. v. University Tutorial Press Ltd. 1916, 2 Ch 601 it was held that question papers set for examinations were 'literary works because they were "work which is expressed in print or writing, irrespective of the question whether the quality or style is high"; and it was further pointed out that "the word 'literary' seems to be used in a sense somewhat similar to the use of the word 'literature' in political literature and refers to written or printed matter". In the same ruling it was laid down that such question papers were to be counted as 'original' works as they were not copied from any book but originated from the author and the preparation of such papers involved selection, judgment and experience. The court also looked into decision of the Patna High Court in Jagdish Prasad Gupta v. Parmeshwar Prasad Singh, in which the same view was expressed. There was no doubt therefore that examination papers come within the category of 'original literary works' mentioned in Section 13 of the Indian Copyright Act, 1957, and that copyright can be claimed therein.

With respect to second submission of learned counsel for the petitioner, that the copyright in the examination papers belongs to the paper-setters and not to the Board. The court observed that the argument was based on Section 17 of the Copyright Act which states that "subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein". Admittedly there was no assignment of the copyright by the paper-setters to the Board, under Section 18 of the Act; nor was there any suggestion that under the terms of the contract between the Board and the paper-setters, the latter had given up their claim to the copyright. Learned counsel for the respondents argued, however that the case was covered by Proviso (d) to Section 17 of the Act, which runs as follows :--

"(d) in the case of a government work, Government shall, in the absence of any agreement to the contrary be the first owner of the copyright therein."

'Government work' is defined in Section 2(k) of the Act in the following manner:--
"(k) 'Government work' means a work which is made or published by or under the direction or control of

(i) the Government or any department of the Government
(ii) any Legislature in India
(iii) any court, tribunal or other judicial authority in India.

The contention of the respondent (Board of High School and Intermediate Education, U. P. and the State of Uttar Pradesh) was that the examination papers were prepared under the direction of the Board, which was merely a department of the Government and consequently they were 'government work' and the copyright therein belonged to the Government.

Two questions here for determination were:
"(a) Whether the Board of High School and Intermediate Education is a department of the State Government;
(b) Whether the examination papers are made or published under the direction or control of the Board."

The latter question was dealt with first. The Board exercises no control, in the true sense of the term, over the actual preparation of the question papers set for its examinations. It was said that the Board engages persons who have specialised knowledge of the subjects prescribed for the examinations and asks them to set papers on those subjects, within the prescribed curriculum; but having entrusted the work to those persons, the Board leaves them to carry it out by using their own skill and discretion, without any further interference or guidance from the Board. Paper-setters are thus not in the position of servants, acting under a contract of service and subject to the commands of the master as to the manner in which they shall work, but are to be considered rather as independent contractors, acting under a contract for services and not subject to direct control in the performance of those services.

It was quite clear, therefore, that the examination papers were not made or published under the control of the Board. Nor did the court think that it can be said that they were made or published under the direction of the Board. The Board no doubt asks the paper-setters to prepare the question papers. But the phrase 'under the direction or control of the Board' obviously suggests something more than a mere initial impetus of this kind and implies that the whole process of preparation must be directed by the Board. The court was therefore satisfied that the examination papers cannot be deemed to be made or published either under the direction or under the control of the Board.

It followed from this that the examination papers were not 'Government Work' as defined in Section 2(k) of the Copyright Act, 1957, even if it be assumed that the Board is a department of Government; and consequently Proviso (d) to Section17 cannot operate to confer ownership of the copyright in those papers on the Board or on the Government.

In this view of the matter the court did not enter into the vexed question of whether the Board is or is not a department of the Government. The petition succeeded on the ground that the copyright in the question papers set for the High School and Intermediate examinations belonged to the paper-setters; and since this copyright neither belonged to nor had been assigned to the Board, the impugned notification which declares that 'copyright of the question papers set at the examinations conducted by Board shall vest in the Board' is clearly bad. Simply by issuing a notification under the Intermediate Education Act, the State Government could not arrogate to itself or to the Board a right which neither of them possessed under the law relating to copyright, embodied in the Copyright Act of 1957.

Accordingly the petition was allowed with costs and the new Regulation 6 introduced by the notification of 9-6-1959 was quashed.
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# Amar Nath Sehgal Vs. Union of India (UOI) and Anr. 97(2002)DLT439
# Berne Convention, article 3(3), Universal Copyright Convention, Gevena text (1952), article VI
# 17 USC 101
# 117(2005)DLT717
# AIR1955All595
# Universal’s Intellectual Property Laws Manual Pg.182
# MANU/DE/0406/2009
# MANU/SC/1006/2011, [2011]109SCL200(SC)
# 2008(4)ARBLR12(Delhi)
# 2003(5)BomCR404
# AIR1967All91
# AIR 1966 Pat 33

The  author can be reached at: mini.anshuman@legalserviceindia.com

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