Cinematograph Films, Sound Recordings and Computer Software — Intellectual Property Rights II Notes

Cinematograph Films, Sound Recordings and Computer Software

In 2004 the Delhi High Court, in Microsoft Corporation v Yogesh Papat (2005), awarded Microsoft damages against a dealer who loaded pirated Windows onto computers he sold. The court did not ask whether the software was “inventive” — it treated the programme as a literary work and applied ordinary copyright. That is the key exam point: software is protected by copyright, not by patent.

Films, recordings and software

Two of the three s.13 categories are derivative works — assembled from underlying works — and one important “literary work” (software) is constantly examined. Take each.

A. Cinematograph film — s.2(f)

Section 2(f): “cinematograph film means any work of visual recording and includes a sound recording accompanying such visual recording, and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films.”

A film is a visual recording (with its accompanying soundtrack). Its author and first owner is the producer — the person who takes the initiative and responsibility for making it (s.2(d)(v), s.2(uu)). A film gets no copyright if a substantial part of it infringes another work (s.13(3)(a)).

B. Sound recording — s.2(xx)

Section 2(xx): “sound recording means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.”

A sound recording is the recorded track (a CD, an MP3). Its author and first owner is the producer of the recording. It is independent of the musical work and lyrics recorded in it — recording a song needs the composer’s and lyricist’s permission.

C. Computer programmes (software) — s.2(o) and s.2(ffc)

Section 2(ffc): “computer programme means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.”

Because the definition of “literary work” in s.2(o) expressly includes computer programmes, software is protected as a literary work. This is the single most-tested point in this topic: a person who has written original code owns copyright the moment he writes it; he does not apply for a patent to protect the code itself. (A genuinely new technical process might separately be patentable, but the code as such is copyright.)

In Simple Terms: Films and sound recordings are owned by their producer. Computer code is a literary work owned by its author — copyright, not patent.

🧩 WORKED EXAMPLE — protecting a new software programme

Facts. Z develops a new computer software programme and wants to protect it. He asks whether to file for a patent.

Rule. A computer programme is a literary work (s.2(o) read with s.2(ffc)); copyright subsists automatically on its creation. Software as such is not patentable in India (s.3(k), Patents Act).

Apply. Z already owns copyright in his code from the moment he wrote it. He may register it for evidentiary value under s.45. He cannot patent the code itself; only a new, non-obvious technical invention using the software could be patented.

Conclusion. Advise Z that his remedy is copyright (automatic; optionally registered), not a patent over the code.

⚠️ DON’T CONFUSE — software copyright vs software patent

The code (the way the instructions are written) is a literary work protected by copyright — s.2(o). It is NOT protected by patent; s.3(k) of the Patents Act 1970 excludes “a computer programme per se” from patentability. Only a new technical invention implemented through software may be patentable. In an exam problem about “protecting software”, the answer is copyright.

flowchart TD
    ROOT["Works beyond the four classic classes"]:::root
    ROOT --> F["Cinematograph film — s.2(f); owner: producer"]:::leaf
    ROOT --> S["Sound recording — s.2(xx); owner: producer"]:::leaf
    ROOT --> P["Computer programme — s.2(o)/(ffc); literary work; owner: author"]:::leaf
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

• Microsoft Corporation v Yogesh Papat (2005) — software is a literary work; loading pirated software infringes copyright.
• IPRS v Eastern India Motion Pictures Association (1977) — the film producer owns the film even where songs are incorporated.

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