Section 40, found in Chapter IX of Copyright Law in India called "International Copyright," shows India’s promise to protect foreign works if other countries do the same for Indian works. This ensures India follows global rules for treating foreign creators fairly, just like Indian creators. Understanding section 40 is important because it connects Indian law with international agreements like the Berne Convention and World Trade Organization (WTO) rules. This article explains section 40 of Copyright Act, its meaning, related government orders, case laws along with its importance.
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What is Section 40 of Copyright Act
Section 40 of Copyright Act, 1957 grants the Central Government the authority to extend the provisions of the Act to foreign works, authors, or residents through an order published in the Official Gazette. Here’s a clear and concise explanation of the section:
What does Section 40 Allows:
The Central Government can issue an order to apply the Indian Copyright Act’s provisions to:
Foreign Works: Works first published outside India can be treated as if they were published in India.
Unpublished Works by Foreign Authors: Works created by non-Indian citizens (while unpublished) can be treated as if the authors were Indian citizens.
Foreign Residents: Individuals residing in a foreign country can be treated as if they were residents of India.
Works by Deceased Foreign Authors: Works by authors who were citizens of a foreign country at the time of first publication or at the time of their death can be treated as if they were Indian citizens.
Once such an order is issued, the Copyright Act’s rules will apply to these works or individuals as specified in the order and the relevant chapter of the Act.
Conditions and Limitations:
Section 40 of Copyright Act includes specific conditions and flexibilities to ensure balanced application:
Reciprocity Requirement: Before issuing an order for a foreign country (unless India has a copyright treaty with that country), the government must confirm that the foreign country provides similar copyright protection to Indian works. This ensures mutual respect for intellectual property.
Scope of Application: The order can apply to all works or be limited to specific types, such as books, films, or music.
Copyright Term: The order can align the copyright term in India with the term in the foreign country, but it cannot exceed the term provided under Indian law.
Additional Conditions: The order may impose conditions, such as requiring copyright registration.
Ownership Rules: The order can adjust ownership rules to align with the laws of a foreign country.
Exclusion of Older Works: The order can specify that the Act will not apply to works created or published before the order takes effect.
Purpose and Implications:
Section 40 of Copyright Act enables India to extend copyright protection to foreign works and authors which promotes international cooperation and compliance with global copyright frameworks, such as the Berne Convention. It ensures that foreign works can enjoy similar protections in India as domestic works, provided the foreign country reciprocates or there’s a treaty in place. The flexibility to set conditions or limit the scope allows the government to tailor the application to specific contexts, balancing international obligations with national interests.
Learn about the Nature of Copyright.
The International Copyright Order, 1999
A major example of section 40 in action is the International Copyright Order, 1999, issued on March 24, 1999, and effective from April 6, 1999. It replaced the 1991 Order and protects works from countries in the Berne Convention, Universal Copyright Convention, WTO, and Phonograms Convention. The Order lists countries that qualify, making it easy to know which foreign works are protected in India. For example, works from the United States or the United Kingdom get protection because those countries protect Indian works, supporting global trade in creative content.
Related Provisions in Chapter IX
Section 40 of Copyright Act is part of a larger chapter where the following provisions are read together to and they work together to create a strong system for international copyright in India:
Section 40A protects broadcasting companies and rights of performers under Copyright Law.
Section 41 covers works by international organizations, like the United Nations.
Sections 42 and 42A allow limits on foreign works published in India if their home country doesn’t protect Indian works.
Section 43 requires parliament to review orders.
Know about the role of Copyright in Cyber Law.
Difference between Domestic vs. Foreign Protection
The Copyright Act, 1957 provides distinct frameworks for protecting domestic and foreign works where Sections 13-16 govern domestic works and Section 40 extends protection to foreign works under specific conditions. Let's find out such differences:
Aspect | Domestic Works (Under Sections 13-16) | Foreign Works (Under Section 40) |
Eligibility | Works by Indian citizens or first published in India | Works from specific foreign countries named in a government order |
Term of Protection | Author’s life plus 60 years for books | Limited to the shorter term of foreign or Indian law |
Reciprocity Requirement | Not needed | Required for countries without a treaty |
Enforcement Mechanism | Direct under the Act | Follows conditions in the order |
Learn about the Punishments for Copyright Infringement.
Case Laws Interpreting Section 40 of Copyright Act
Indian courts have used section 40 in several cases involving foreign works. In Warner Bros. Entertainment Inc. v. Santosh V.G. (2009), the Delhi High Court protected American films in India under section 40 of Copyright Act and the 1999 Order, stopping piracy with court orders.
In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984), the Supreme Court said foreign sound recordings are protected only if their home country protects Indian works, emphasizing fairness.
In Penguin Books Ltd. v. India Book Distributors (1984), the court ruled that selling unauthorized foreign book editions in India could break the law, relying on section 40’s protections.
In John Wiley & Sons v. International Book Store (2010), the Bombay High Court protected American publishers’ rights against illegal sales, showing how the 1999 Order helps enforce rights like damages or seizing illegal copies. These cases show section 40’s role in protecting foreign works while ensuring fairness.
Implications and Importance of Section 40 on Copyright Act
Section 40 of Copyright Act has a big impact on India’s creative industries. It encourages foreign companies to invest in Indian media and publishing by promising protection which boosts projects like international partnerships in film industries. However, challenges include dealing with different copyright terms or proving in court that a foreign country protects Indian works.
In today’s digital world, with streaming services and AI-created content, section 40 helps India follow WTO rules, supporting innovation. Some argue it might limit access to knowledge in a developing country like India, leading to calls for fair use rules to balance protection with public access.
But, Section 40 strengthens India’s role in global copyright discussions along with creating a fair system for creators worldwide.
Summary
Section 40 of Copyright Act, 1957, shows how India adapts to international copyright needs. By letting the government protect foreign works fairly, it supports creators while meeting India’s goals. Lawyers and legal experts must keep up with related orders and court cases to guide clients in global matters. As the world becomes more connected, section 40 will keep evolving to ensure copyright supports creativity without creating barriers.
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Section 40 of Copyright Act: FAQs
Q1. Section 40 of Copyright Act?
Allows the government to extend copyright protection to foreign works in India through a notification.
Q2. Section 41 of the Copyright Act?
Permits the government to restrict rights of foreign broadcasting organizations and performers in certain cases.
Q3. Public Undertaking in Copyright?
Refers to government-controlled entities involved in copyright-related activities, like publishing or broadcasting.
Q4. Section 44 of the Copyright Act?
Establishes a register of copyrights to record details of copyrighted works.
Q5. Section 45 of the Copyright Act?
Allows owners to apply for registration of their copyrighted works in the copyright register.
