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Copyright is a simple form of intellectual property right (IPR) that comes into existence immediately when an original idea is expressed, such as when a story is published in a magazine or on a website, a poem is recited in a gathering, a sketch is drawn on a paper, or an article is published in newspaper. For this reason, copyright is undoubtedly a simpler form of IPRs when compared with other forms of IPR, such as trademarks or design or patents. It is also simpler because many jurisdictions do not require mandatory examination or registration under the applicable copyright laws for its enjoyment and enforcement, unlike other forms of IPRs.
The legal principle that copyright does not require registration for enjoyment and enforcement is almost universal. It finds place in international legal instruments, such as the Berne Convention and even the WTO’s TRIPS Agreement. The Copyright Act, 1957 (Copyright Act) reflects the same position: section 45 makes copyright registration an option; as is evident from the use of the word “may”. Unlike in the Trademarks Act where only the proprietor of registered trademark can file the suit for infringement, the Copyright Act does not mandate registration of a copyright as a requirement for filing of a suit for infringement.
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However, inspite of the statutory clarity that copyright registration is not mandatory for enforcement, the Bombay High Court had decided in Dhiraj Dharamdas Dewani vs. Sonal Info Systems Pvt. Ltd. (FA No. 1076/2011 decided on 06.03.2012) ( Dhiraj Dewani) that the registration is mandatory for filing the suit. This decision added to the few outlier decisions that were incorrect on this point of law.
Fortunately, the Bombay High Court in Sanjay Soya Pvt. Ltd. vs. Narayani Trading Company [(IA No. 5011/2020 decided on 09.03.2021) ( Sanjay Soya) , recently set the record straight by holding Dhiraj Dewani to be incorrect and per incuriam for being directly contrary to the previous binding judgments of coordinate benches, which all held that copyright registration is not mandatory for the enforcement.
The High Court also observed that Dhiraj Dewani implicitly attempted to place copyright registration on the same footing as that of the trademark registration, which was wholly incorrect given that they are both distinct. The High court also noted that unlike the Trade Marks Act, 1999, the right to sue for infringement exists even without copyright registration.
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The High Court examined various decisions, the Berne Convention, and the TRIPS Agreement to reiterate the point of law that that copyright registration is not mandatory for enforcement.
In case of unregistered copyrighted works, jurisprudence holds that ownership vests with the person claiming to be the original owner. In case of any dispute, the burden of proof is on the person disputing the claimant’s ownership and alleging otherwise. For this reason, copyright, as a basic yet important form of IPR, can be enjoyed equally by a poet or a rural artisan. Nonetheless, copyright registration would be advisable in case of software works where proving ownership can be challenging.
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The process of registering copyright is simple; it does not involve any examination by the Registrar of Copyrights. It is merely to seek any objections on the ownership of the claimed copyright.
Although Sanjay Soya has corrected this inconsistency, the problem runs deeper. It is not uncommon for enforcement authorities, such as the police and the customs, to refuse enforcement of unregistered copyrighted work, merely because of ignorance of the settled position of law to the contrary. Even though the judgments like Sanjay Soya elucidate the correct position of law, the percolation of this jurisprudence to the lower rungs of the enforcement agency remains doubtful.
The solution then lies in legislative correction. Therefore, for the sake of legal certainty, the Parliament of India should amend the Copyright Act to expressly clarify that copyright registration is not required for enforcement.
However, in the absence of any explicit provisions in the Copyright Act or elsewhere, there is room for unbridled discretion on the part of the enforcement authorities to determine ownership of copyright. Therefore, in the case of unregistered copyrighted work, it would be advisable for the competent authority to provide binding guidelines for the enforcement authorities to determine copyright ownership for different copyrighted works. This will strengthen the legal certainty and predictability intended to be achieved by the law.
Damodar Vaidya is Executive Partner and Jayant Raghu Ram, Principal Associate, at Lakshmi Kumaran & Sridharan Attorneys
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