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United States-India Copyright Treaty

By Martha L. Arias

Just as China once emerged as the manufacturing outsource centre for U.S. producers, India has emerged as the technological hub, data processing, research, and now paralegal outsource centre.  U.S. businesses using these offshore services must be aware of both Indian domestic intellectual property (IP) laws and bilateral intellectual property treaties between these two countries. This article informs on the copyright bilateral treaty between the U.S. and India, which has specific relevance for data processing, research, and paralegal outsource services.   

The Republic of India was created on January 26, 1950, and just four years later, the U.S.-Indian bilateral agreement on copyrights (5 U.S.T. 2525) was signed.  The agreement entered into force on October 21, 1954.  It states that India, as an independent nation, ratified its intention to continue granting copyright protection to U.S. citizens on the same basis as it was granted to its nationals.   Likewise, the U.S. proclaimed under 17 USC § 9(b), its intention to maintain copyright protection to Indian citizens just as that protection was afforded to U.S. citizens. Section 18(3) of the Indian Independence Act 1947 expressly stated that India, as a newly independent nation, shall preserve all laws existing before the transition of power.  

Therefore, protections granted under the Indian Copyright Act apply to U.S. citizens just as it applies to Indian nationals.  The current Indian Copyright Act entered into force in 1957 but it is based on the 1911 Copyright Act, which in turn was based on United Kingdom copyright laws. Traditional international copyright principles are part of the Indian copyright legislation. For instance, India grants automatic copyright protection (no registration is required) to literary, dramatic, musical and artistic works, computer software, and cinematograph films and sound recordings for sixty years- some term variations apply. Even though copyrights are automatic, authors may register their works in the Copyrights Register maintained by the Copyright Office of the Department of Education. Ideas are not protected under Indian copyright law nor are titles or names, short word combinations, slogans, short phrases, methods, news, and plots or factual information. To receive protection, works must be original; the joint authorship concept is recognized; and copyrights may be assigned for 5 year if no other time-limit is set.  Usually, the author is the owner of the copyrighted work; the government is considered the author of government works. An author is the creator, composer, producer, or photographer -depending on the case, - of the work.  In the case of employment-related works under contract of service or apprenticeships, the employer will be the copyright owner unless otherwise provided.  Translations are afforded copyright protection just as the original work provided that they are authorized by the author of the original work.  Computer programs are protected under Indian law as literary works, and their authors enjoy the right to sell, offer to sell, or give on hire "regardless of whether such a copy has been sold or given on hire on earlier occasion."  In general, foreign works mentioned on the International Copyright Order are protected in India as well.  See the International Copyright Order below.  As opposed to the U.S., India grants protection of moral rights.  This means, infringement exists when a copyrighted work is distorted, mutilated, modified and these or similar acts affect the author's honor or reputation.  Moral rights remain with the author even after the author's death or assignment of the work.   

India is signatory to the following international copyright agreements- this means U.S. citizens enjoy the rights and privileges afforded by these international agreements adopted by the Indian legislature,- (a) the Berne Convention for the Protection of Literary and Artistic works; (b) the Universal Copyright Convention; (c) the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms; (d) Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties; and (e) the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

Indian International Copyright Order grants protection to foreign works from the following 116 countries. Indian protection of foreign works from these countries is relevant for U.S. businesses registered under the laws of any of them.  E.g. if a U.S. business registered in St. Kitts & Nevis produces a copyrighted work and outsources some activity related to this work to India, India is going to protect that work as a foreign work.  The International Copyright Order includes Albania, Argentina,  Australia, Austria, Bahamas, Bahrain, Barbados, Belarus, Benin, Bolivia, Bosnia & Herzogovina, Botswana, Brazil, Bulgaria, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chile, China, Colombia, Congo, Costa Rica , Cote d'Ivoire, Croatia , Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, Honduras ,Hungary, Iceland, Indonesia, Italy, Jamaica, Japan, Kenya, Latvia, Lesotho, Liberia, Libya, Lithuania , Luxembourg, Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Mongolia, Morocco, Namibia, Netherlands, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Russian Federation, Rwanda, Saint Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Slovakia, Slovenia, South Africa, Spain, Sri Lanka, Suriname ,Sweden, Switzerland, Thailand, The Former Yugoslavia Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkey, Ukraine, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Yugoslavia, Zambia, Zimbabwe. 

Full post as published by IBLS Internet Law Blog on September 10, 2008 (boomark / email).