International Copyright Order

Section 40 of the Copyright Act, 1957 is the doorway through which foreign works enter the Indian copyright regime. Standing alone, the Act protects only works first published in India and works whose author is an Indian citizen. Section 40 empowers the Central Government to extend, by notification in the Official Gazette, the benefits of the Act to works first published in named foreign countries — provided those countries reciprocate by protecting Indian works on similar terms. The notification currently in force is the International Copyright Order, 1999, issued under Section 40 read with Section 78. This chapter unpacks the mechanism, traces its treaty backbone in the Berne Convention, the Universal Copyright Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and explains how the principle of national treatment carries the weight of the entire international architecture.

The architecture is layered. At the international level, India is a signatory to the Berne Convention for the Protection of Literary and Artistic Works (joined 1928), the Universal Copyright Convention (joined 1957), the World Trade Organization's TRIPS Agreement (binding from 1995) and the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (signed in 2018, ratified in 2019). At the domestic level, Section 40 of the Copyright Act and the International Copyright Order, 1999 carry these obligations into Indian law. The Order operates as the conduit; the Act provides the underlying rights; the treaties supply the international anchor.

Section 40 — the enabling provision

Section 40 reads, in substance, that the Central Government may by order direct that all or any of the provisions of the Act applicable to works first published in India shall apply (a) to works first published in any country outside India to which the order relates in like manner as if they were first published in India; (b) to unpublished works whose author was, on the date of the making of the work, a subject or citizen of such foreign country; and (c) to works whose author was at any time during the making of the work a domiciled or resident or subject or citizen of such foreign country.

Two structural features of the section are worth noting. First, the extension is a discretionary executive act — the Government may extend, but is not bound to. Second, the extension is conditional on reciprocity. The proviso to Section 40 expressly states that no order shall be made unless the Central Government is satisfied that the foreign country has made or has undertaken to make such provisions, if any, as it appears to the Central Government expedient to require, for the protection in that country of works entitled to copyright protection under the Act. Reciprocity, in other words, is not a polite request — it is a statutory pre-condition.

The International Copyright Order, 1999

The International Copyright Order, 1999 — issued by the Central Government on 24 March 1999 — is the operative notification. It applies the provisions of the Copyright Act, 1957 to nationals of, and works first published in, every country listed in its Schedules. The Schedules are organised by treaty membership:

• Schedule I lists countries that are members of the Berne Convention.
• Schedule II lists countries that are members of the Universal Copyright Convention.
• Schedule III lists countries that are members of the World Trade Organization (and therefore bound by the TRIPS Agreement).
• Schedule IV lists countries which are members of the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (added by amendments after India's 2019 ratification).
• Schedule V covers countries with which India has a bilateral arrangement, even if they are not members of the multilateral treaties.

The substantive effect is that a French novel first published in Paris is protected in India in exactly the same way as if it had been first published in Delhi. The French author can sue under Sections 55 to 62 for infringement, can register the work under Section 44, and can claim the same term of life plus sixty years that an Indian author enjoys. The doctrine works in reverse too: an Indian author's work is, by virtue of India's membership of Berne and TRIPS, protected in every other Berne and TRIPS member State without any further formality.

National treatment — the lever that does the work

The principle of national treatment, codified in Article 5(1) of the Berne Convention and Article 3 of TRIPS, is the lever that does the heavy lifting. Each Member State agrees to give nationals of every other Member State the same copyright protection it gives its own nationals — no better, no worse. The principle is non-negotiable: a member cannot offer a lower term, a narrower bundle of rights, or a more onerous formality to foreign authors than it offers its own. The International Copyright Order, 1999 is India's unilateral implementation of this obligation: it puts the foreign work, by domestic notification, on the same footing as the Indian work.

Country of origin — the threshold concept

The country of origin determines which national regime sets the baseline term. Article 5(4) of the Berne Convention provides the rule. For published works, the country of origin is the country of first publication. For works simultaneously published in several Berne countries, the country of origin is the country whose legislation grants the shortest term. For unpublished works, the country of origin is the country of nationality of the author. The country-of-origin concept matters because of the rule of the shorter term in Article 7(8) of Berne — a Berne country may, but is not bound to, refuse to grant a longer term to a foreign work than is granted in the work's country of origin.

India does not apply the rule of the shorter term except in narrow contexts. The default is that any foreign work whose country of origin is a Schedule I country gets the full Indian term — life plus sixty years for literary, dramatic, musical and artistic works, and sixty years from publication for cinematograph films, sound recordings, photographs, posthumous works, anonymous and pseudonymous works, government and undertaking works. The rule of the shorter term is invoked only where the foreign country itself denies the longer Indian term to Indian works — a genuinely rare scenario after the 1996 standardisation.

The Berne–UCC distinction

Indian copyright examiners frequently test the difference between the Berne Convention and the Universal Copyright Convention (UCC). The two conventions are not interchangeable. The Berne Convention, drawn up in 1886 and substantially revised at Berlin (1908), Rome (1928), Brussels (1948), Stockholm (1967) and Paris (1971), grants automatic protection without any formality — Article 5(2) prohibits any registration, deposit or notice as a condition of protection. The UCC, drawn up in 1952 under UNESCO auspices to bring in the United States and developing countries that found Berne too demanding, allowed a copyright notice in the form © + name of owner + year of first publication to substitute for any other formality.

India became a Berne signatory in 1928 — through British India's accession — and a UCC signatory in 1957. After the United States acceded to Berne in 1989 and TRIPS made Berne compliance compulsory for every WTO member from 1995, the practical importance of the UCC has dwindled. However, the UCC remains the operative treaty for the handful of countries that are not Berne signatories but are UCC signatories. Schedule II of the International Copyright Order, 1999 still lists those countries separately for that reason.

TRIPS — Articles 3, 4 and 9

TRIPS imports Berne by reference. Article 9(1) requires every WTO member to comply with Articles 1 to 21 of the Berne Convention (1971 Paris Act) and the Berne Appendix. The exception is moral rights — TRIPS Article 9(1) explicitly excludes Berne Article 6bis, leaving the moral-rights obligation as a Berne matter not enforceable through the WTO dispute-settlement mechanism. India's moral-rights jurisprudence under Section 57 therefore continues to draw from Berne directly, not through TRIPS.

Article 3 of TRIPS codifies national treatment for IP rights covered by the Agreement, with carve-outs for performers, producers of phonograms and broadcasting organisations recognised under the Rome Convention. Article 4 is more ambitious — it adds a Most Favoured Nation (MFN) obligation: any advantage, favour, privilege or immunity granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other members. The MFN obligation does not exist in the Berne Convention; it is a TRIPS innovation. The combined effect of Articles 3 and 4 is that India cannot, by treaty, grant Brazilian authors a privilege denied to Japanese authors — even where neither would otherwise be entitled to it.

The MFN principle is qualified. Article 4 carves out advantages deriving from international agreements on judicial assistance and law enforcement, advantages granted under the Rome Convention to performers and broadcasters, and advantages granted under multilateral agreements concluded under the auspices of WIPO that pre-date the WTO Agreement. These exceptions preserve the older bilateral and plurilateral arrangements without forcing them into universal application.

The Section 40A extension — performers and broadcasting organisations

Section 40A, inserted by the Copyright (Amendment) Act, 1994, extends the same machinery to performers' and broadcasting organisations' rights under Sections 37 to 39A. The Central Government may by order extend protection to performers and broadcasters of foreign countries on the same reciprocity model. Section 40A is the domestic counterpart of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) — though India has not yet ratified the Rome Convention itself, the WIPO Performances and Phonograms Treaty (which India ratified in 2019) covers most of the same ground. The International Copyright Order, 1999 was amended by the International Copyright (Amendment) Order, 2019 to bring WPPT obligations into the Schedule.

The 2019 amendment is recurring exam material. After the WPPT ratification, performers' rights now extend to nationals of WPPT contracting parties on a reciprocal basis. The 1994 amendment which inserted Section 40A had originally limited the extension to broadcasting organisations established in countries listed in the Order; the 2019 amendment fills the gap by adding WPPT countries to Schedule IV.

Section 41 — works of certain international organisations

Section 41 carves out a special category — works first published by or under the direction of certain international organisations like the United Nations, its specialised agencies, the Organisation of American States and similar bodies notified by the Central Government. The first owner of copyright in such works is the international organisation itself, and the work is treated as if it had been first published in India — without the need for any country of origin analysis. Section 41 reflects the policy that international civil servants do not have a "national" identity for the purposes of copyright, and that international organisations need a single legal home for their publications.

Section 42 — restriction or revocation of foreign-rights extension

Section 42 is the safety valve. If the Central Government becomes satisfied that any foreign country has not given, or has not undertaken to give, adequate protection to Indian works, the Government may direct that the provisions of the Act applicable to works first published in India shall not apply, or shall apply with such alterations as may be specified in the order, to works first published in that country. Section 42 has been invoked sparingly; the normal practice has been to negotiate compliance through the WTO mechanism rather than through unilateral revocation. But the section remains the backstop — the Government can, if it must, walk back the extension in respect of a non-compliant country.

The 2012 amendment — copyright societies and reciprocal arrangements

The Copyright (Amendment) Act, 2012 introduced Section 33A, which requires registered copyright societies to publish their tariff scheme on their websites and to follow the procedures laid down in the Copyright Rules, 2013. The 2012 amendment is relevant to the international story because the Indian copyright society's reciprocal arrangements with foreign collecting societies — the Indian Performing Right Society's tie-ups with the American Society of Composers, Authors and Publishers, the British Performing Right Society Limited and similar bodies — operate within the Section 40 framework. A foreign collecting society cannot collect royalties in India without going through an Indian copyright society, and an Indian society cannot represent foreign repertoire in India without authorisation backed by reciprocal arrangements. The interplay with Section 18 assignment and Section 30 voluntary licensing is also examined frequently — a foreign author can assign Indian rights, and an Indian licensee can hold an exclusive licence over a foreign work, only because Section 40 has first put the foreign work on the same legal footing as an Indian one.

The pre-1999 trail of orders

The 1999 Order is not the first such notification. It supersedes the International Copyright Order, 1991, which itself superseded the International Copyright Order, 1958. The 1958 Order, issued shortly after the Act came into force, listed the Berne and UCC member countries available at the time of independence. Subsequent amendments added new accessions — Brazil in 1962, Japan in 1959, the Soviet Union in 1973 (a Berne accession that was not effective until 1994), the United States in 1989. Each amendment was a discrete notification that the practitioner had to chase across the Gazette. The 1999 Order consolidated the position into a single instrument and aligned it with TRIPS, which had become binding on India from 1 January 1995 with a transition period for developing countries that ended on 1 January 2000.

One historical episode is worth flagging. The Special Provisions for Developing Countries appendix to the Berne Paris Act, 1971 — incorporated into Article I of the Appendix — allows developing countries to issue compulsory licences for translation and reproduction of foreign works in defined educational and research contexts. India, as a developing country at the time of accession to the 1971 Paris Act, made the Section 32 declaration that lets Indian publishers obtain a compulsory licence to translate a foreign work into an Indian language for teaching purposes after a waiting period. The mechanism is now embedded in Section 32 read with Rule 32 of the Copyright Rules, 2013 — the international architecture's developing-country carve-out.

The Indian case-law thread

The leading domestic authority on Section 40 is Sicom Ltd. v. Asian Paints Ltd., where the Bombay High Court held that the question whether copyright subsists in a foreign work in India is determined by the International Copyright Order, 1999 read with Section 40, not by the foreign country's law. Eros International Media Ltd. v. BSkyB Ltd., 2017 SCC OnLine Bom 4063, applied the principle to the dubbing rights in Indian films exploited in the United Kingdom — Indian copyright followed the Indian work into the British market via UK national-treatment obligations under Berne. The Supreme Court's discussion of the international dimension in Indian Performing Right Society v. Sanjay Dalia, (2015) 10 SCC 161, while primarily about jurisdiction in copyright suits, reaffirmed that Section 40 brings foreign works squarely within Section 51 infringement actions.

The Delhi High Court in Penguin Books Ltd. v. India Book Distributors applied the parallel-import doctrine in the context of foreign-published Penguin titles. The case turned on whether copies of a book first published in the United Kingdom could be imported into India without the consent of the Indian licensee. The court held that the Indian publisher's exclusive territorial licence was effective against importation, even though the foreign copies were lawfully made — a position later reinforced by the Delhi High Court's 2008 ruling in John Wiley v. Prabhat Chander Kumar Jain on textbook parallel imports. Parallel-import disputes typically engage Section 53 powers of the customs authorities alongside the Section 40 framework — the dual remedy is the operational reality.

Exam-angle distinctions

Three distinctions appear repeatedly in objective and short-answer questions on this chapter:

1. National treatment versus Most Favoured Nation. National treatment requires equal treatment of foreign and domestic nationals within the Member State; MFN requires equal treatment among foreign nationals across Member States. Berne has only national treatment; TRIPS has both. National treatment levels the home-versus-foreign playing field; MFN levels the foreign-versus-foreign playing field.
2. Country of origin versus country of first publication. The two coincide for ordinary published works but diverge for simultaneous publication in multiple countries (the country of origin is the one with the shortest term) and for unpublished works (where it is the country of the author's nationality).
3. The International Copyright Order versus the Copyright Act. The Order is a delegated-legislation notification under Section 40; it does not amend the Act. It extends the Act's substantive provisions to foreign works on a treaty-reciprocity basis. A challenge to a foreign work's protection in India therefore proceeds in two steps: first, is the work within the International Copyright Order's Schedules; second, does the Act's substantive protection apply.

The interaction between Section 40 and the subject-matter categories under Section 13 is also a frequent test point. A Section 40 extension brings the foreign work within the same six-fold subject-matter classification — literary, dramatic, musical, artistic, cinematograph film, sound recording — that applies to Indian works. A foreign sound recording first published in Tokyo gets the same sixty-year term from publication that a sound recording first released in Mumbai gets. A foreign cinematograph film first exhibited in Paris is treated identically to one first exhibited in Bengaluru. The subject-matter classification therefore travels with the extension; it is not separately renegotiated.

The Berne Convention's "minimum standard" obligation is the second leg of the doctrine. Article 5(1) requires the country of protection to give foreign authors not only national treatment but also the rights specifically granted by the Convention — the so-called "Berne minima". These include the right of reproduction (Article 9), the right of translation (Article 8), the right of public performance and broadcasting (Articles 11 and 11bis), the right of adaptation (Article 12), and moral rights (Article 6bis). India's Section 14 bundle exceeds the Berne minimum, so foreign authors automatically receive a richer set of rights through national treatment than they would have received through the Berne minima alone.

For the judicial-services aspirant, the practical drill is to memorise the Section 40 text, the International Copyright Order's Schedule structure, the Berne–UCC–TRIPS sequence with India's accession dates, and the trio of national treatment, MFN and reciprocity. The mechanism is doctrinally simple but operationally intricate, and the international dimension is the single area where copyright examiners can bring in public international law without warning.

Frequently asked questions

What is the function of Section 40 of the Copyright Act, 1957?

Section 40 empowers the Central Government to extend, by notification, the provisions of the Copyright Act to works first published in foreign countries and to authors who are subjects, citizens or residents of those countries. The extension is conditional on reciprocity — the foreign country must give similar protection to Indian works. The current operative notification is the International Copyright Order, 1999, which lists protected countries by their Berne, UCC, TRIPS and WIPO treaty memberships.

What is the difference between national treatment and most favoured nation under TRIPS?

National treatment, in Article 3 of TRIPS, requires each Member State to give nationals of every other Member State the same copyright protection it gives its own nationals. Most Favoured Nation, in Article 4 of TRIPS, requires that any advantage granted to nationals of one country must be extended to nationals of all WTO members. National treatment levels the home-versus-foreign playing field; MFN levels the foreign-versus-foreign playing field. Berne has only national treatment; TRIPS introduces MFN as well.

Does India follow the rule of the shorter term?

India does not apply the rule of the shorter term as a general matter. A foreign work whose country of origin is a Schedule I country to the International Copyright Order, 1999 enjoys the full Indian term — life plus sixty years for literary, dramatic, musical and artistic works, and sixty years from publication for cinematograph films, sound recordings, photographs, posthumous works and anonymous works. The rule is invoked only in the narrow situation where the foreign country itself denies the longer Indian term to Indian works.

What does the country of origin mean under the Berne Convention?

Under Article 5(4) of the Berne Convention, the country of origin is the country of first publication for ordinary published works. For simultaneous publication in multiple countries, it is the country whose legislation grants the shortest term. For unpublished works, it is the country of nationality of the author. The country of origin matters because the rule of the shorter term — where applicable — uses the country of origin's term as the cap.

How does the International Copyright Order, 1999 differ from the Copyright Act?

The Copyright Act, 1957 is the parent statute that creates copyright in Indian works. The International Copyright Order is a delegated notification under Section 40 of that Act. The Order does not amend the Act — it merely extends the Act's substantive provisions to works first published in foreign countries listed in its Schedules. The two instruments operate in tandem: the Order brings the foreign work within the protective umbrella, the Act supplies the substantive bundle of rights and the procedural remedies.

Are performers' rights extended to foreigners under Section 40A?

Yes. Section 40A, inserted by the Copyright (Amendment) Act, 1994, extends the Section 40 mechanism to performers' rights and broadcasters' rights under Sections 37 to 39A. The Central Government extends protection to nationals of countries on a reciprocal basis. After India ratified the WIPO Performances and Phonograms Treaty in 2019, the International Copyright Order was amended to add WPPT contracting parties to its Schedule IV, thereby extending Indian performer-right protection to nationals of those treaty members.