An Overview - Copyright Law
By CA A. K. Jain
Copyright is a legal term refers to protecting a creator’s work. It is a type of intellectual property that provides exclusive publication, distribution, and usage rights for the creator. This means whatever content is created cannot be used or published by anyone else without the consent of the creator. The length of copyright protection may differ from country to country, but it usually lasts for the life of the author plus 50 to 100 years. Copyright is generally given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is a pack of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. In modern times, copyright protection has been extended to websites and other online content. This is important in the digital age, since large amounts of content can be easily copied.
In many countries, copyright shield is automatic. Whenever you publish original content, it is automatically protected by copyright law. If you want others to know your content is copyright protected, you can post the copyright logo (©) on any Web pages that include your unique content. You may also want to include the years you have owned the content. e.g. Copyright © 2007-2009 [your name]. Many countries provide copyright registration, which allows authors to register copyrighted content with a government agency. This makes it easy to establish ownership of content if it is ever uncertain.
Ø Work - A work refers to any of the following, namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a sound recording.
Ø Artistic Work - An artistic work means a painting, a carving, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture and any other work of artistic craftsmanship.
Ø Musical Work - Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy copyright security.
Ø Sound Recording - Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.
Ø Cinematograph Film - Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and cinematograph shall be construed as including any work produced by any procedure analogous to cinematography including video films.
Ø Government Work - Government work means a work which is published by or under the direction or control of the government or any department of the government, any legislature in India, and any court, tribunal or other judicial authority in India.
Ø Indian work - Indian work means a literary, dramatic or musical work, the author of which is a citizen of India or which is first published in India or the author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India.
Ø Author - In the case of a literary or dramatic work the author, i.e., the person who creates the work. In the case of a musical work, the composer. In the case of a cinematograph film, the producer. In the case of a sound recording, the producer. In the case of a photograph, the photographer. In the case of a computer generated work, the person who causes the work to be created.
Ø Adaptation - Adaptation involves the preparation of a new work in the same or different form based upon an already existing work. The Copyright Act defines the following acts as adaptations,
1. Conversion of a dramatic work into a non dramatic work
2. Conversion of a literary or artistic work into a dramatic work
3. Re-arrangement of a literary or dramatic work
4. Depiction in a comic form or through pictures of a literary or dramatic work
5. Transcription of a musical work or any act involving re-arrangement or alteration of an existing work.
The making of a cinematograph film of a literary or dramatic or musical work is also an adaptation.
Ø Performer - As per the Indian Copyright Act, a Performer includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.
Ø Performance - Performance in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers.
Ø Broadcast - Broadcast means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images or by wire.
Ø Copyright Society - A copyright society is a registered collective administration society. Such a society is formed by copyright owners. The minimum membership required for registration of a society is seven. Ordinarily, only one society is registered to do business in respect of the same class of work. A copyright society can issue or grant licenses in respect of any work in which copyright subsists or in respect of any other right given by the Copyright Act.
COPYRIGHT REGISTRATION PROCESS
Copyright application should be made in Form IV along with “Statement of Particulars and Statement of Further Particulars”. The application should also have the payment of the prescribed fee at Copyright Office of the Department of Education. The Copyright Office initially provides a filing number and filing date and issues a filing receipt. Thereafter the application is formally examined by the office. Defects will be communicated to the applicant. Once the application is found to be in order it is accepted and the Copyright Office issues the registration certificate. It may take 3-4 months time for registration of any work in the normal course.
DOCUMENTATION / DETAILS TO BE ATTACHED WITH APPLICATION
Name, address and nationality of the applicant / author of the work
Nature of applicant’s interest in the copyright i.e. OWNER / LICENSEE etc.
Title of the work
A declaration signed by the author
Language of the work
Whether the work is published or unpublished
If the work is published, year and country of first publication and name, address and nationality of the publisher
Year and countries of subsequent publications, if any
Name, address and nationality of any other person authorized to assign or license the rights in the copyright
Power of attorney for the firm
Six hard copies of the work and three soft copies
(For computer programs – 3 copies of the program on CD ROMs.)
3. REGISTRATION DURATION
4. REGISTRATION FEES
Literary, Dramatic, Musical and Artistic Works, Photographs
Sixty years from the beginning of the calendar year next following the year in which the author dies.
Anonymous and pseudonymous works, Posthumous work, Cinematograph films, Sound records, Government work, Public Undertakings Work, International Organizations Work
Sixty years from the beginning of the calendar year next following the year in which the work is first published.
4. REGISTRATION FEES
For filing an application for registration of copyright in an artistic work which is used or capable of being used as a trade mark, a no-objection certificate is required to be obtained from the Trade Marks Registry. An application for copyright in an artistic work other than which is used or capable of being used as a trade mark, can be made filed directly with the Copyright Office.
Please see the table below for relevant fee.
Second schedule to the Copyright Rules, 1958
Fee payable under the Copyright Act, 1957
INFRINGEMENT OF COPYRIGHT
Copyright in a work shall be deemed to be infringed-
(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act-
1. does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
2. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person-
1. makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
2. distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
3. by way of trade exhibits in public, or
4. imports into India, any infringing copies of the work
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.
Copyright in a work shall not be deemed to be infringed-
The following acts shall not constitute an infringement of copyright, namely:
(i) a fair dealing with a literary, dramatic, musical or artistic work for the purposes of
a. research or private study;
b. criticism or review, whether of that work or of any other work;
(ii) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events —
a. in a newspaper, magazine or similar periodical or
b. by broadcast or in a cinematograph film or by means of photographs.
Remedies against Infringement
1. Civil remedies - Injunction damages or account of profit, delivery of infringing copy and damages for conversion.
2. Criminal remedies - Imprisonment of the accused or imposition of fine or both. Seizure of infringing copies
3. Administrative remedies - Administrative remedies consist of moving the Registrar of copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.
A suit relating to infringement of copyright should be filed in the District Court or High Court within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose irrespective of the place of residence or place of business of the defendant.
The period of limitation for filing the suit is three years from the date of infringement.
Precautions in Legal Action
The most important precaution is to ensure confidentiality till the time that a raid or the Anton Piller order actually takes place. Therefore, in a criminal action, a strategy that works well is to file an action against unknown persons and obtain an order which empowers the police to investigate within a certain period of time as also to search as many number of times as they may during that period. This is quite a useful order.
In a civil action, the name of the parties is mentioned. There is one strategy resorted to ensure confidentiality which is to add a fictitious first party because the cause title which appears in the list normally only gives the name of the first party and even if the list is circulated.
Another strategy is to attempt to have the Anton Piller order heard in camera. Although it is a perfectly legitimate procedure in cases where confidentiality is of the essence, judges are reluctant to hear matters in camera for fear that the Bar might go up in arms and claim that one particular lawyer was being favoured by the judge. The judges are cautious and this strategy is adopted very rarely.
In a civil action even if you adopt these strategies between the time of filing of the action and the time of obtaining of the order, the file has to go through several stages. Thus, there are various areas where a leakage can take place.
In a civil matter, another problem area is that local commissioners appointed to search are normally third party solicitors or attorneys, who may be busy lawyers and whose diaries may not permit them to immediately leave their work and go on to execute the Anton Piller order. They may therefore agree to execute the order after a couple of days and that may be crucial because in the meantime the information may leak out.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Is it not true that strict application of the principle of protection of copyright hampers economic and cultural development of the society?
Yes. If copyright protection is applied rigidly, it can hamper progress of the society. However, copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests of the creators and of the community.
Does the law allow any use of a work without permission of the owner of the copyright, and, if so, which are they?
Subject to certain conditions, a fair deal for research, study, criticism, review and news reporting, as well as use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work
for the purpose of research or private study,
for criticism or review,
for reporting current events,
in connection with judicial proceeding,
performance by an amateur club or society if the performance is given to a non-paying audience, and the making of sound recordings of literary, dramatic or musical works under certain conditions.
What is the scope of protection in the Copyright Act, 1957?
The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.
Who is the owner of copyright in a government work?
In the case of a government work, government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Who is the owner of copyright in works by journalists during the course of their employment?
In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.
Who is the owner of a work produced during the course of the author’s employment?
In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Who is the owner of the copyright in the case of a work produced for valuable consideration at the instance of another person?
In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Is copyright assignable?
Yes. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.
Can any person translate a work without the permission of the owner of the copyright in the work?
No. A person cannot translate a work enjoying copyright without the permission of the copyright owner.
Is there any copyright over news?
No. There is no copyright over news. However, there is copyright over the way in which a news item is reported.
Which are the international copyright conventions of which India is a member?
Copyright as provided by the Indian Copyright Act is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a member of the following international conventions on copyright and neighbouring (related) rights:
Berne Convention for the Protection of Literary and Artistic works.
Universal Copyright Convention.
Convention for the Protection of Producers of Phonograms against Unauthorised
Duplication of their Phonograms.
Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties.
Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
Which are the common copyright infringements?
The following are some of the commonly known acts involving infringement of copyright:
Making infringing copies for sale or hire or selling or letting them for hire;
Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;
Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;
Public exhibition of infringing copies by way of trade; and Importation of infringing copies into India.
Has the owner of an auditorium or a hall any liability while renting out the place for communication to the public of a copyrighted work?
Yes. If a person permits for profit any place to be used for the communication of a work to the public, where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright, he will be deemed to have committed an offence under the Copyright Act.
What is the proof of the authorship of a work?
Where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author or the publisher appears on copies of the work as published, or, in the case of an artistic work appeared on the work where it was made, the person whose name so appears or appeared shall, in any proceeding in respect of copyright in such work, be presumed, unless the contrary is proved, to be the author or the publisher of the work, as the case may be.
Is copyright infringement a cognizable offence?
Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate.
Who is responsible for copyright offence committed by a company?
Every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against.
Is Copyright Registration Mandatory?
Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. India is a member of the Berne Convention as well as the Universal Copyright Convention. Therefore, work created in other member states is accorded protection in India as well. Registration of copyright is not mandatory. However, it is advisable to apply for Registration of Copyright as the certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright.
What protection is available for Software Programmes in India
Computer Software or software programme can be registered as a ‘literary work’ under Copyright Act. As per Section 2(o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.
Work that cannot be protected by copyright?
Several categories of material are generally not eligible for Indian copyright protection. These include among others:
Ø Works that have not been fixed in a tangible form of expression, (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)
Ø Titles, names, short phrases, and slogans (see Trademarks); familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents
Ø Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
Ø Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)
How do I get permission to use somebody else’s work and other subject matters?
You can contact the right owner. For certain types of works and other subject matter, you can get permission from a collective management organization. Collective management organizations license use of works and other subject matter that are protected by copyright and related rights whenever it is impractical for right owners to act individually. There are several international non-governmental organizations that link together national collective management organizations.
Bibliography: www.techterms.com, www.copyright.gov.in, en.wikipedia.org, www.depenning.com