Sections 40 explained: this guide covers what it means, who it applies to, the step-by-step process, documents required, fees, due dates and penalties in India — so you can stay compliant with confidence and avoid costly mistakes.
Sections 40 and 40A are the enabling provisions of Chapter IX. They allow the Central Government, by an order in the Official Gazette, to make the Act apply to foreign works and authors (section 40) and to foreign broadcasting organisations and performers (section 40A), as if they were Indian. If you publish abroad or license foreign content, a copyright registration strategy should start by checking whether such an order covers the country concerned.
Section 40 lets the Central Government direct by order that all or any provisions of the Act apply to works first published abroad, to unpublished works of foreign subjects or citizens, to domicile abroad, and to works of foreign authors, in like manner as if they were Indian. Six provisos shape the order. Section 40A does the same for Chapter VIII (broadcast reproduction right and performer's right). Both depend on an order; the sections themselves do not extend anything.
Section 40: the four directions
The Central Government "may, by order published in the Official Gazette, direct that all or any provisions of this Act shall apply" as follows.
| Clause | Subject | Treated as if |
|---|---|---|
| (a) | Works first published in any territory outside India to which the order relates | First published within India |
| (b) | Unpublished works (or a class) whose authors were, when the work was made, subjects or citizens of a foreign country to which the order relates | The authors were citizens of India |
| (c) | Domicile in any territory outside India to which the order relates | Domicile were in India |
| (d) | Any work whose author was, at the date of first publication (or at death, if dead by then), a subject or citizen of a foreign country to which the order relates | The author was a citizen of India at that date or time |
After the order, "subject to the provisions of this Chapter and of the order, this Act shall apply accordingly". A footnote in the text names the International Copyright Order, 1999 (w.e.f. 6-4-1999) as the order under this section; this article does not go beyond that footnote.
The six provisos to section 40
- (i) Condition for other countries. For a country that is not a treaty or convention partner of India on copyright, the Government must be satisfied that the country has made, or has undertaken to make, such provisions as appear expedient for protecting works entitled to copyright under this Act in that country.
- (ii) Scope. The order may apply the Act generally or to specified classes of works or cases.
- (iii) Term. The order may provide that the Indian term shall not exceed the term under the foreign country's law, "but such a term or copyright shall not exceed the term of copyright provided under this Act" (inserted by Act 27 of 2012).
- (iv) Conditions and formalities. Enjoyment of rights may be made subject to conditions and formalities prescribed by the order.
- (v) Ownership. The order may make exceptions and modifications to the ownership rules, having regard to the foreign law.
- (vi) Past works. The order may exclude works made, or first published, before the order commenced.
Example. A UK-based author, Ian Mercer, publishes a novel in London. Whether the Act protects it in India as if it had been published in India depends on the order that relates to that territory, read with the provisos. The section itself does not say which countries are covered; that is in the order.
Section 40A: broadcasters and performers
Section 40A was inserted by Act 49 of 1999 (w.e.f. 15-1-2000). Under sub-section (1), if the Central Government is satisfied that a foreign country (other than a treaty or convention partner on the rights of broadcasting organisations and performers) has made or undertaken to make the provisions it considers expedient for protecting such rights, it may by order direct that Chapter VIII applies:
| Clause | Subject | Treated as if |
|---|---|---|
| (a) | Broadcasting organisation with headquarters in the country, or a broadcast transmitted from a transmitter there | Headquarters were in India, or the broadcast were made from India |
| (b) | Performances that took place outside India | They took place in India |
| (c) | Performances incorporated in a sound recording published in the country | The recording were published in India |
| (d) | Performances not fixed on a sound recording but broadcast by an organisation headquartered (or transmitting) there | Headquarters were in India or the broadcast made from India |
Sub-section (2) says every such order may provide that:
- (i) Chapter VIII applies generally or to specified classes of broadcasts, performances or cases;
- (ii) the term in India shall not exceed the foreign term, "Provided that it does not exceed the period provided under this Act";
- (iii) enjoyment is subject to conditions and formalities in the order;
- (iv) Chapter VIII or a part does not apply to broadcasts and performances before the order commenced;
- (v) ownership provisions apply with such exceptions and modifications as the Government considers necessary.
Drafting note: the proviso in sub-section (2)(ii) is printed as a bracketed proviso inside a clause; read it as a limit on the term. For what Chapter VIII covers, see section 38.
What the sections do not say
- They do not list the countries. The orders do.
- They do not state any treaty by name; they refer generally to "a treaty" or "a convention relating to copyright to which India is also a party". See also international copyright and the Berne Convention.
- They do not say how a foreign author proves nationality, for which see sections 6 to 8.
Practical points
- Check the Gazette order that relates to the country of first publication or of the author's citizenship.
- Read the order's conditions: the section lets an order impose "conditions and formalities".
- Check term limits: Indian protection through an order cannot exceed the Act's own term.
- For restrictions the Government may impose on foreign rights, see sections 41 to 43.
Need help with foreign works in India?
If your work was first published abroad or you license foreign content for Indian use, we can check the position and prepare the filing. Start with our copyright registration service for the Indian record.
Key takeaways
- Sections 40 and 40A act only through orders published in the Official Gazette.
- Section 40 covers works first published abroad, foreign authors, and domicile.
- Section 40A applies Chapter VIII to foreign broadcasters and performers.
- Orders may limit the term, add formalities and exclude past works.
- The Indian term under an order cannot exceed the term provided under the Act.
Read next
- Sections 41–43: international organisations and restricting foreign rights
- Sections 38–38A: performer's right and exclusive rights
- International copyright: Berne Convention and India
- Term of copyright: duration for different types of works
Disclaimer: Based on the Copyright Act, 1957 as amended up to 2012, read with the Tribunals Reforms Act, 2021 and the Jan Vishwas (Amendment of Provisions) Acts of 2023 and 2026, as consulted on 1 October 2026. Forms, fees and procedure are set by the Copyright Rules, 2013 as amended from time to time. This article is general information, not legal advice; check the official text before acting.