INDIA Law and Practice Contributed by: Safir Anand and Twinky Rampal, Anand and Anand Advocates
tic work that can also be used as a trade mark for certification that there are no trade marks on record that are similar to the copyrightable artistic work. The artistic work copyright can be filed for regis - tration only when the TMO confirms and certifies that there are no similar or identical trade marks on record. Likewise, a trade mark cannot be reg - istered if it is in conflict with a copyrighted work. While India’s trade mark and copyright regula - tions take into account potential conflicts, there is currently no practical mechanism either estab - lished 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 follows: “Section 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 follow - ing 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 provisions 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 publication, or in a case where the au - thor was dead at that date, was at the time of his death, a citizen of India; (ii) in the case of an unpublished work other than a 2 [work of architecture], the author is at the date of making of the work a citizen of India or domiciled in India; and (iii) in the case of a 2 [work of architecture], the work is located in India. Explanation – In the case of a work of joint authorship, 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 3 [sound recording] made in respect of a literary, dramatic or musical work, if in making the 3 [sound record - ing], copyright in such work has been infringed. 4. The copyright in a cinematograph film or a record shall not affect the separate copy - right in any work in respect of which or a substantial part of which, the film, or, as the case may be, the 3 [sound recording] is made. 5. In the case of a 3 [work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.”
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