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3.3
India

In India, copyright is an accepted right which emanates into actuality as momentarily
as a work is produced. Copyright is not an entire right of the vendor.
Copyright generates an encouragement for producing fixed novel expression57. Harmonizing the copyright administrator’s desire to limit
access of his copyrighted works to those eager to pay for such entrance and the
public’s attention in freely using the protected work remains the severe issue
under Copyright law58.

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The principle of ‘fair dealing’ and the providing
‘non-voluntary licenses’ indefinite situations
agree on the usage of copyrighted work.
Copyright confers in original, literary, dramatic, musical and artistic works. It
is the original skill or labour in the implementation
of the work and not uniqueness of thought, which is obligatory. One may not be responsible
if he has merely taken from the main idea be it original60. The law requires the considerable use of appearance to
assume infraction. Likely, two diverse works in itself do not aggregate to copyright infringement, rather the subject and
the source determines the verge of the infringement. The law delivers for both
civil as well as criminal remedies for infringement of copyright. The
Copyright Act, 1957 is in accord with the Berne Convention for the Protection
of Literary and Artistic Works, 1886 and the Universal Copyright Convention,
the Geneva Act, 1952. The term of copyright protection is
60 years61.

Protection
for Fashion Designers as per judicial pronouncements

It is renowned that there are numerous features of
fashion which are protected under Copyright law such as sketches, pictures
of models, jewels, reporting content, textile
pattern and project software, fashion designs which are not at all times severely
protected. Nevertheless, in Louis
Vuitton Malletier v. Atul Jaggi and Another, Delhi High Court documented
copyright of plaintiff in ‘Toile Monogram’ pattern as well as in the Murakami
monograms of plaintiff 62. 

 The Copyright Act, 1957 identifies creative
work, be it in the form of a sketch, two
dimensional or three dimensional; however,
Section 15 of the Act restricts copyright in those designs which are registered
under the Designs Act, 2000. In Rajesh Masrani v. Tahiliani Design
Private Limited, Delhi High Court believed that since the work was ‘artistic’
in nature, it was not capable of being sheltered under the Design Act, 2000 and
hence Section 15(2) was not applicable. However, in Microfibres, Inc v.
Girdha 63, Delhi High Court believed that to be qualified for
Designs Act, registration is important. As per Article 2(5) of the Berne
Convention, the gatherings of literary or creative works such as encyclopedias
and compendiums which, by motive of the ‘collection and arrangement’ of their subjects,
establish intelligent creations shall be protected as such, deprived of bias to
the copyright in each of the works founding part of such collections.

In Microfibres, an additional
issue which was highlighted was whether
the preparation of motifs, flowers, leaves and shapes which have been organized
in a specific method would be appropriate for Copyright as ‘labour and skill’ was applied to have a specific
pattern. The court believed that such a
work fell out of the jurisdiction of
‘artistic work’ as defined under Section 2 (c) of the Act. On opposing;
in Nova Ball Bearing Industries v. Mico Ball Bearing, Delhi High Court documented
the copyright in ‘imaginative carton’ in which plaintiff
packed his items. Likewise
in Mother Dairy v. Sri Vinayaka Milk Products, Delhi High Court alleged
that the plaintiff’s ‘Mother Dairy’ blue logo and trade dress is an ‘unique artistic work’ under Section 2(c) of
Act 64.

William Grant and Sons Limited v. McDowell and Company
Limited, Delhi High Court accepted copyright in the figure and design of the vessel
of Scotch whisky trademarked as
“Glenfiddich”. Delhi High court believed that the plaintiff establishes an unique artistic work within the denotation of Section 2c of Indian Copyright
Act, 1957 and henceforth authorized to protection as under Indian law by virtue
of membership, of both India and United Kingdom, to Berne Convention and
Universal Copyright Convention (UCC) 65.

Another attention-grabbing case linked to fashion
designs heard in Delhi High Court in 2008. There, the plaintiff was engaged in
the business of product lines while defendant was maker and retailer of fashion
items. Plaintiff found that each and every design of defendant matched exactly
with plaintiff’s patterns. Plaintiff alleged that defendant tried to obscure
his copying of plaintiff’s work by making a negligible
and irrelevant variation in one or two prints. Defendant resisted that
plaintiff had no right to claim protection under the 1957 Act as the ‘artistic
work’ was actually designs relating to textile products, which come under the purview of 2000 Act66.

High Court apprehended that ‘it had been indicated by
the plaintiff that designs were not being
mass-produced and it was essential to nature of business of plaintiff that not
more than twenty copies were made of any single costume.  It viewpoints
to motive that plaintiff’s product lines and accoutrements were known for exclusivity
and particularity as inventive inputs were required.’ The court stressed that the individuality
should not only be in conceptualization but also in creation and exhibition as
it were the sine qua non of Haute couture67.

It also went on to decide that the legislature had believed
it expedient to eliminate ‘artistic work’ from the description of ‘design’ in 2000 Act and to highlight in 1957 Act. Though,
it also gave the opinion that copyright in any design which was proficient but
which had not been listed should terminate as soon as any article to which
design had been applied had been copied more than fifty times by owner. It said
that ‘artistic work’, per se, would denote originality, innovativeness, grace
and exclusivity68.

The Calcutta High Court in Barbara Taylor
Bradford v. Sahara Media Entertainment Ltd described
the basis behind the basic copyright law which is, ‘you can copy the idea
of another artist, but not the expression’. In Anil Gupta v. Kunal
Dasgupta 69, court believed that ‘if an idea is established
into a concept fledged with satisfactory details, then the similar is adept of
protection under the Copyright Act.’ In the specific case, the court cited
with approval Fraser v. Thomas Television70where the court had witnessed,
‘I accept that to be capable of guard the
idea must be satisfactorily established, so that it would appear to be an idea which has at least some attention for a
television programmer and which is capable of being realized as a certainty.

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