IPR
Topic 16 Subject Matter of Copyright
Topic 16 — Subject Matter of Copyright (Section 13)
Section 13 of the Copyright Act 1957 lists exhaustively the works in which copyright subsists in India. The list is closed, not illustrative — Indian courts have repeatedly held that copyright cannot subsist in a work that does not fall into one of the enumerated categories. This topic examines each category in detail: what it covers, what it excludes, and how the boundaries have been drawn by Indian courts. Special attention is given to four categories that produce most of the litigation — literary works (with the special status of computer programmes and databases), artistic works (with the design overlap), cinematograph films (with the underlying-works puzzle), and sound recordings (with the radio-broadcasting controversy).
1. Section 13 — The Closed List
Section 13(1), Copyright Act 1957 "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." |
Three observations follow from the text:
- "Original" qualifies only the four primary works (literary, dramatic, musical, artistic). Films and sound recordings need not be "original" in the same sense — they are derivative works that draw on primary works.
- "Subsist throughout India" — copyright is territorial. The Act protects works first published in India and, by virtue of the International Copyright Order, foreign works originating in countries with which India has reciprocal arrangements.
- Section 13(2) imposes the condition that, in case of published works, the work must be first published in India or, if first published outside India, the author must be an Indian citizen at the time of publication.
2. Literary Work — Section 2(o)
‘Literary Work’ — Section 2(o) of the Copyright Act 1957: "literary work" includes computer programmes, tables and compilations including computer databases. |
Scope
Indian courts have given "literary work" a broad reading. It is not limited to works of literary merit. Anything expressed in writing — novels, short stories, essays, biographies, articles, letters, encyclopaedias, dictionaries, instruction manuals, mathematical tables, examination papers, lottery tickets — has been held to be a literary work, provided the originality threshold is met. Translations and adaptations are also "literary works" in their own right (Macmillan v. Suresh Chunder Deb, 1890).
Computer Programmes
The 1994 amendment expressly included computer programmes within "literary work". Both source code and object code are protected. The protection is wider than for ordinary literary works: Section 14(b) gives the author of a computer programme the right to sell, give on commercial rental or offer for sale or commercial rental any copy of the programme — a rental right not available for other literary works.
✅ Computer programmes — copyright vs. patent boundary Section 2(o) Copyright Act 1957 includes "computer programmes" within literary works. Section 3(k) Patents Act 1970 excludes "computer programmes per se" from patentability. The boundary is therefore: software is protected by copyright (against literal copying) but cannot be patented unless it produces a technical effect beyond the running of the programme on a computer. |
Tables, Compilations and Databases
Tables, compilations and databases are protected as literary works under Section 2(o). The Indian Supreme Court in Eastern Book Company v. D.B. Modak (2008) held that compilations of court judgments, with original head-notes and editorial commentary, are protectable; the underlying judgments themselves are public-domain ideas. The case is the leading Indian authority on database copyright.
📖 Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 Facts — EBC publishes Supreme Court Cases (SCC) with editorial enhancements: head-notes, paragraph numbering, formatting, copy-edited judgment text. The respondents copied this material into their own database. Holding — The Supreme Court adopted the "modicum of creativity" / "skill and judgment" standard, rejecting the pure sweat-of-the-brow doctrine. EBC's editorial inputs (head-notes, paragraph numbers, copy-editing) cleared this threshold and were copyright-protected; the underlying judgments were not. Significance — Sets the originality threshold for compilations and databases in Indian law. Imported the Feist (US) standard while modifying it slightly for Indian conditions. |
3. Dramatic Work — Section 2(h)
‘Dramatic Work’ — Section 2(h): "dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. |
A dramatic work must (i) involve action — recitation, choreography or dumb show; and (ii) be reduced to a tangible form. Plays, ballet choreographies, mime sequences and stage directions all qualify. The exclusion of "cinematograph film" is deliberate: a film is treated as a separate category under Section 13(1)(b), even though films are commonly based on plays.
📖 R.G. Anand v. M/s Delux Films, AIR 1978 SC 1613 The leading case on infringement of dramatic works. The plaintiff's play "Hum Hindustani" was alleged to have been copied in the film "New Delhi". The Supreme Court laid down the seven propositions on idea-expression dichotomy, holding that there is no copyright in the theme of regionalism but only in its specific dramatic expression. |
4. Musical Work — Section 2(p)
‘Musical Work’ — Section 2(p): "musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. |
Two key elements:
- Music — the melody, harmony, rhythm and any other element capable of being captured in musical notation.
- Graphical notation — the score or sheet music. This is the form in which the musical work is "fixed" for copyright purposes.
✅ Music vs. lyrics — separate copyrights A song typically embodies three independent works: the musical composition (Section 2(p)) authored by the composer; the lyrics (a literary work under Section 2(o)) authored by the lyricist; and, when recorded, a sound recording (Section 2(xx)) authored by the producer. The 2012 amendments to Sections 17, 18 and 19 ensured that the composer and lyricist retain a non-waivable right to royalty for non-cinematographic exploitation of their work, even when the underlying songs are incorporated into a film or sound recording. |
5. Artistic Work — Section 2(c)
‘Artistic Work’ — Section 2(c): "artistic work" means — (i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a work of architecture; and (iii) any other work of artistic craftsmanship. |
Two principles run through this definition:
- No artistic merit required — the words "whether or not any such work possesses artistic quality" mean that aesthetic judgment is not the test. A simple line drawing or a poorly executed photograph is still an artistic work.
- Functional features generally excluded — purely functional shapes (a hammer head, a screw thread) cannot be artistic works; their protection, if any, lies in the Designs Act 2000.
The Copyright-Design Overlap — Section 15
When an artistic work is industrially applied to articles, copyright protection is curtailed by Section 15 of the Copyright Act 1957:
Section 15, Copyright Act 1957 "(1) Copyright shall not subsist under this Act in any design which is registered under the Designs Act, 2000. (2) Copyright in any design, which is capable of being registered under the Designs Act, 2000, but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright." |
📖 Microfibres Inc. v. Girdhar & Co., (2009) 40 PTC 519 (Del-DB) The Delhi High Court Division Bench held that an artistic work, once applied industrially to articles in volume (more than 50 copies), loses copyright protection unless registered as a design. The case continues to govern the design-copyright boundary in India. |
6. Cinematograph Film — Section 2(f)
‘Cinematograph Film’ — Section 2(f): "cinematograph film" means any work of visual recording and includes a sound recording accompanying such visual recording, and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. |
Films are derivative works. They typically incorporate multiple primary works — the screenplay (literary), dialogue (literary), songs (musical and literary), choreography (dramatic), costumes and sets (artistic). Section 13(4) preserves the separate copyright in each underlying work.
First Ownership of Film Copyright
Section 17(b) and (c) treat the producer of the film as the first owner of the copyright in the film itself, unless there is an agreement to the contrary. The 2012 amendments inserted a critical proviso to Section 17, ensuring that the rights of underlying authors are not extinguished merely by their incorporation into the film.
📖 Indian Performing Right Society v. Eastern Indian Motion Pictures Association, (1977) 2 SCC 820 The Supreme Court held that when a music composer or lyricist is engaged for valuable consideration to compose a song for incorporation in a film, the producer becomes the first owner of the copyright in that song. Underlying authors retained limited rights for non-film exploitation. Significance — Settled the "merger" question for nearly four decades; substantially reversed by the 2012 amendments. |
📖 Indian Performing Right Society v. Music Broadcast Ltd., 2023 SCC OnLine Bom 94 The Bombay High Court held that, after the 2012 amendments, authors of underlying literary and musical works incorporated into sound recordings are entitled to claim equal royalty share when the sound recording is broadcast. Significance — Modern judicial endorsement of the 2012 reforms; restores authors' bargaining position against producers, music companies and broadcasters. |
7. Sound Recording — Section 2(xx)
‘Sound Recording’ — Section 2(xx): "sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. |
A sound recording is a separate work even when it incorporates literary and musical underlying works. The producer of the sound recording is its first owner under Section 2(d)(v). The bundle of rights for sound recordings under Section 14(e) includes reproduction, sale and rental, and communication to the public.
Performers' Rights — A Distinct Layer
Distinct from the copyright in the sound recording, Section 38 grants performers (singers, musicians, actors) special rights in their performance. The 2012 amendment introduced Section 38B granting moral rights to performers. The performer's right has a 50-year term from the year of performance.
8. Section 13(2) — When Copyright Subsists
Even works falling within Section 13(1) get protection only if they satisfy Section 13(2). For a published work, the work must (i) be first published in India, OR (ii) if first published outside India, the author must be a citizen of India at the time of publication. For unpublished works, the author must be a citizen of India or domiciled in India at the time of making. The reach is extended to foreign nationals through the International Copyright Order, 1991, which incorporates India's Berne and UCC obligations.
9. Works That Are NOT Copyrightable
Despite the broad scope of Section 13, several categories of subject matter fall outside copyright:
- Ideas, themes, plots, historical or legendary facts (R.G. Anand 1978).
- Scientific principles, mathematical formulae or methods (TRIPS Article 9(2)).
- Slogans, titles and short phrases (consistent denial across courts).
- Works lacking originality (Eastern Book Co. v. D.B. Modak 2008).
- Works in the public domain — copyright term has expired.
- Functional shapes and useful articles (covered by patents/designs, not copyright).
- Government legislation, court judgments and parliamentary debates — Section 52(1)(q) deems certain reproductions to be non-infringing.
🎯 EXAM POINTERS — TOPIC 16
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