INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
The artistic work copyright can be filed for registra - tion only when the TMO confirms and certifies that there are no similar or identical trade marks on record. Likewise, a trade mark cannot be registered if it is in conflict with a copyrighted work. While India’s trade mark and copyright regulations take into account potential conflicts, there is currently no practical mechanism either established by trade mark law or used by trade mark authorities in India to examine copyright records while assessing trade mark applications. 3. Copyright Ownership, Protection and Rights 3.1 Types of Copyrightable Works Section 13 of the Copyright Act 1957 states as fol - lows: 13. 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) 1 [sound recording]. (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provi - sions of section 40 or section 41 apply, unless, – (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publica - tion, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than a 2 [work of architecture], the author is at the date of making of the work a citizen of India or domiciled in India; and
(iii) in the case of 2 [work of architecture], the work is located in India. Explanation – In the case of a work of joint author - ship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work. (3) Copyright shall not subsist – (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any 1 [sound recording] made in respect of a literary, dramatic or musical work, if in mak - ing the 1 [sound recording], copyright in such work has been infringed. (4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the 1 [sound recording] is made. (5) In the case of 2 [work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of con - struction.” 3.2 Essential Elements of Copyright Protection Originality is the most vital qualification for copyright protection in India, and the work must be expressed in a tangible medium. 3.3 Copyright Authorship Section 17 of the Copyright Act provides information on who can be called the first owner of copyright: 17. First owner of copyright Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that – (a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment
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