COPYRIGHT

COPYRIGHT

Topics covered under Copyright

(a) What and Why?

(b) Term of Copyright

Assignments and Licensing.

(e) Infringements and Remedies- Contractual, Civil, Criminal and Administrative.

(f) An Overview of International Perspective.

What is Copyright ?

“The exclusive right given by law for a certain term of years to an author, composer etc. (or his assignee) to print, publish and sell copies of his original work” (Oxford English Dictionary)

What can be Protected ?

· literary or dramatic work

· a musical work

· an artistic work

· a cinematograph film

· a sound recording

· a photograph

· a computer generated work

Whose Rights are protected ?

He/She is also called the First Owner of Copyright.

However, in course of employment, the employer is the first owner of these rights.

Work/Creator of work

· Literary or dramatic work

· Author

· Musical work

· Composer

· Cinematograph Producer

· Sound recording Producer

· Photograph Photographer

Why Copyright ?

Favour

· Rewards creative efforts.

· Protects interest of the creator

Against

· Protects corporate interests only

· Criminalizing legitimate use

No single “international copyright” for whole world.

The Copyright Act of each country is compliant with most international conventions and treaties.

In India, the Copyright Act, 1957 is compliant with these international conventions and treaties-

· Berne Convention of 1886

· Universal Copyright Convention of 1951

· Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)

· Indian Copyright Act, 1957

· First right in India in 1914

· Now, Indian Copyright Act,1957; w.e.f. 1958

· Further amendments in 1983,1984,1992,1994,1999, 2012

· The Copyright ( Amendment ) Act 2012 is the most substantial, bringing the digital environment into its purview.

adopted many English provisions, introduced new ideas and concepts.

Created Copyright Office and Copyright Board

Introduced civil and criminal remedies against infringement

Objective

Copyright is based on the notion that a person who creates or produces creative work, has a right to decide how the fruit of his talent, skill & labor should be reproduced. Without this protection, nobody would be encouraged to be creative.

Earlier, this was relevant mainly to the publishing business, film industry & music industry. But with the advent of the IT revolution the copyright law has found new application in protecting computer programs, software & content put up on the internet.

Copyrighting is always in favor of the creator of the work. A copyright arises the moment a person creates a work. Registration of copyright is not necessary. However the act provides for the mechanism for registration of copyright, which is useful as it serves as ready evidence of copyright in favor of the holder.

The Act prohibits the copying or reproduction of copyrighted material. The copyright holder can prosecute a person making unauthorized use & can claim damages and compensation.

Scope of Copyright

Literary - includes books, novels, newspaper articles, magazines & journals, instruction manuals.

Dramatic - includes recitation, acting out of any literary work or an arrangement of scene, choreographic works & dumb shows.

Musical – includes original music work & a particular combination of melody & harmony.

Artistic – includes painting, sculptures, photographs, drawing, diagrammatic representation of a map or chart.

Film – includes motion pictures, television shows, television recordings of events, documentaries

Scope of Copyright

The Act was amended in 1995, as a part of the commitment under the GATT, to include computer programs, tables & compilations including data bases in the definition of literary works. Here the scope of computer programs is quite broad.

The first important requirement is that the Work should be ORIGINAL.

What is original?

A writer does not invent a language, he uses it. A musician does not invent notes & scales, he uses it which he has learnt from others in training. Thus our ‘creativity’ is only an expression of what we have copied from others during socialization.

So the law resolves the question of originality within this bound – by asking or checking whether a substantial investment of time, labor & capital has been done by the author in creating original work!!

For e.g. – a novelist comes up with a plot in which he an international passenger at an airport gets stranded without any proof of nationality. This is only an Idea; which has to be expressed in a tangible form in sentences, paragraphs, chapters like in the form of a novel. Copyright is given over this material form of expression. Nobody should copy this material expression.

Thus a person who copies some paragraphs or lines from this novel for his own essay titled ‘ Shopping while stranded at International Airports’ has not copied the idea from the novelist. Yet it is a case of copyright violation as he has copied from its material expression.

On the other hand a person who takes the Idea and narrates it differently has copied the Idea. Yet he has not violated copyright as the texts are entirely different.

'Doctrine of Sweat of the Brow', whereby a work is given copyright protection if the author has applied 'labour, skill or judgment' in creating the work irrespective of the level of originality in the work. Evolved from the decision in Ladbroke v William Hill, [1964] 1 All E.R. 465.

Eastern Book Company v. D. B Modak (2008) 1 SCC 1 at p. 113

Some amount of creativity required

Some substantive variation

Not some trivial variation of the type where limited ways/ unique of expression are available and the author selects one of them which can be said to be a garden variety

Scope of Original works

· Events

· Concept Note

· Slogans

· Fictional Characters

· Abridgment

· Original Computer Programs

· Original Dramatic Works

· Choreographic Work

· Scenic Arrangement

· Original Musical Work

· Original Artistic Work

· Engraving

· Painting

· Sculpture

· Drawing

· Graphic Characters

· Work of Architecture

Adaptation of the work

Sec 2(a) Adaptation

1. in relation to a dramatic work, the conversion into non dramatic work

2. in relation to literary work, the conversion into a dramatic work by way of performance in public or otherwise

In relation to literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical

In relation to musical work, any arrangement or transcription of the work

In relation to any work, any use of such work involving its rearrangement or alteration

Rights of Copyright Owner

A copyright is essentially a right to prohibit copying of work. The Act lists certain activities which cannot be done in relation to the different categories of copyrighted work. They are as follows –

1. To reproduce the work in any material form including its storing in an electronic medium.

2. To publish the work

3. To perform the work in public

4. To make any film or record in respect of copyrighted work

5. To make any translation or adaptation of the work.

In relation to films & records, it gives exclusive rights to the owner to make copies of the film & communicate the film to the public by broadcasting means.

In relation to Computer Software it gives exclusive rights to sell or give on rental any copy of computer program.

Economic rights of a Copyright Owner Section 14

Right to reproduce the work :

Reproduction is an act of copying from the previously finished works or giving it a differential form by adding, editing or modifying the same. In short in means the right to copy.

Such right shall exclusively be exercised by the owner of the work and shall not be infringed by any other person since the act of reproduction of the work may economically make benefits to its owner.

Be it a book which has been published or a compact disc that has been recorded and manufactured, right of reproduction of copyrighted works are the basis to protect a work from the act of exploitation.

The concept of substantial and material copying has also been enclosed within the reproductive right.

In regards to the violation of copyright of the owner, it is not necessary to copy the entire subject matter of the work to held responsible for such infringement and a part of the reproduction of a particular work would be enough for the infringement of the same.

Right to distribute in market:

Similar to the right of reproduction, the owner of the copyrighted work also has a right to distribute in the market and make money out of it.

The act of distribution may be in the form of sale, lending for free or for a consideration, rental, or free distribution by the way of gift. The right of distribution differs from case to case and shall not be exercised in a similar manner at each instance.

If the work that has been sold is a book, the rule of exhaustion shall be applied. Wherein the right to distribute the book will be exhausted and ceases to exist after the first sale of it and the buyer of the book will be further entitled to resale it as a second hand material.

Whereas this condition is not the same in case if the owner of copyright sets up a library and charges rental fee to read the books available there and the law does not prohibit to do so also the rule of exhaustion will not come to play.

Right to communicate to the public :

It means letting or making the product/work available to the public by way of broadcasting, simulcasting or webcasting. If a person not being the owner of the work, communicates it to the public would amount to the act of infringement.

In Indian performing right society Ltd. V Aditya Pandey, the Delhi High Court held that “the defendant is accordingly restrained from communicating any of such works to the public, or performing them, in the public, without such appropriate authorization, or licensing”

Right of adaptation:

Conversion, alteration, transcription or rearranging a copyrighted work means and includes the right of adaptation.

These rights are exclusively available only to musical, literary or dramatical works and are not extended to the computer programmes.

Although the right of adaptation are being protected by the statute, it is also been governed by the principles laid down under a classical case, by the Privy Counsel, in

Macmillan and Company Ltd. V K. and J. Cooper.

The defendants were alleged on infringing the book published by the plaintiff and the nature of the book which was previously published by the Plaintiff was put to test and was figured out the work was made out of a non – copyrighted source, such that the Plaintiffs book lacked its nature of originality and held that the defendants are not guilty of infringement.

The principle employed here is that, although a work has been adapted from such source it must possess a quality of originality to an extent.

Right to translate :

The owner of the copyrighted work has a right to translate his work to any other languages he wants.

In Academy of General Edu., Manipal & ANR. Vs. B. Malini Mallya–

petition was filed by the plaintiff, alleging on the use of his idea without authorization. The Court held that “mere adaption of an idea would not amount the act of infringement and there must be a substantial copy of work to attain the same.”

Moral rights of a Copyright Owner: Sec 57

A moral right would stand a step ahead of an economic right in which it is based on the dignity, uniqueness and the reputation that a work has gained and maintained.

It has been well illustrated in the case of Amarnath Sehgal v Union of India, the plaintiff’s masterpiece was damaged by the defendant by which it lost its aesthetic and market value. A mandatory injunction was passed by the court in addition of fine amount of 50 lacs as the cost of damage.

The moral rights of the copyright owner has been provided under Section 57 of the Act that encompasses three basic moral rights.

· Right of paternity;

· Right of integrity; and

· Right to retraction.

Right of paternity :

The right of an owner of copyright to claim and prevent others to claim the ownership of his copyrighted work is said to be a right of paternity.

Sholay Media Entertainment and Pvt. Ltd. V Parag M. Sanghavi, was a landmark judgement delivered on the Right of paternity of the copyright owner, where the court granted protection to the title of the movie which made the defendant to replace his’ movie title completely by refraining the use of the name which causes damage to the cult of the name “Sholay” since it was deceptively similar with the same.

Right of integrity:

The right of the owner of the copyright to protect the reputation of his own work from exploitation is the right of integrity.

Sajeev Pillai v. Venu Kunnapalli & ors, the respondent was alleged on the act of pre – release publicity of the movie which was yet to be released without any authorized permission.

The court granted relief to the aggrieved petitioner by restraining the respondent to carry on such act which damages the exclusiveness and reputation of the movie.

Right to retraction:

Retraction is an act of taking back the previous assertion made. The author at times may feel to give up his own right as an act of honoring the dignity of his work which sounds like assassinating ones own life for the sake of protecting the so far gained reputation.

The principal Act, under section 57 grants the author the right to withdraw from the publication of his work.

In simple terms it means waiving of his granted rights for the sake of protection of reputation or integrity.

In Amarnath Sehgal v Union of India, the court pointed out the right to retraction as to withdraw ones own publication if the author feels the condition of his work is derogatory in nature and are advisable to do the withdrawal of the same.

This would be the author’s right to retraction.

Rights of Copyright Owner

In the 1995 Amendment, Broadcasting Reproduction Rights were added which are as follows:

1. No one can re-broadcast a Broadcast. For e.g. if Doordarshan is broadcasting a cricket match, no other channel can take the feed and broadcast it without license from the owner ( Doordarshan Network )

2. No person can make a recording of a Broadcast, other than for private use, or for teaching & research.

3. No person can sell or hire a Broadcast without a license from the owner.

The only exception to the above is the use of excerpts of a broadcast in the reporting of current events or for review, teaching & research.

Rights of Copyright Owner

As the law is applicable to India, a copyright arises under the Act in following cases:

1. The work is first published in India

2. The work is first published outside India, but the author is a citizen of India.

3. In case of unpublished work, the author is, at the date of making the work, a citizen of India or domiciled in India

4. In case of an architectural work of art, the work is located in India.

Period of Copyright –

On one hand, creator should enjoy fruits of his creativity, on the other the society as a whole should benefit from the creation of new ideas & expressions. Balancing the 2 claims, Copyright protection is available on for limited no. of years.

For authors it is for lifetime and 60 years from their death. For other creative works like films, music, art, drama it is for 60 years

· Exception

· Duration

· Fair use

· Compulsory License

· Neighbouring Rights

Time Period

In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is 60 years in addition to the author’s lifespan.

Where there are multiple authors, the term is 60 years post the death of the last author.

For cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, Copyright protection subsists for a period of 60 years from the year of publication.

In case of unpublished Cinematograph films, Photographs, and computer programs the copyright subsites up to 60 years from the year in which the original work was created.

Copyright for Sound recordings is valid for 60 years from the end of the year in which that sound recording is published for the first time.

Broadcast reproduction rights are valid for 25 years from the year of broadcast and performers rights last for 50 years from the year the performance was made.

Assignment of Copyright (Section 18)

The owner of the copyright of a work has the right to assign his copyright to any other person.

The effect of assignment is that the assignee becomes entitled to all the rights related to the copyright to the assigned work.

However, mere grant of right to publish and sell the copyrighted work amounts to publishing right and not assignment of copyright.

Where the assignee of a copyright becomes entitled to any right comprised in the copyright, he shall be treated as the owner of the copyright in respect of those rights.

The assignor shall also be treated as the owner of copyright with respect to unassigned rights.

The legal representatives of the assignee shall be entitled to the benefits of assignment, if the assignee dies before the work comes into existence.

In Video Master v. Nishi Production 23 IPLR 388 (1998), the Bombay High Court considered the issue whether assignment of video rights would include the right of satellite broadcast as well.

The Court agreed with the contentions of defendant that there were different modes of communication to the public such as terrestrial television broadcasting (Doordarshan), satellite broadcasting and video TV.

The owner of the film had separate copyright in all those modes, and he could assign it to different persons.

Thus, satellite broadcast copyright of film was a separate right of the owner of the film and the video copyright assigned to the plaintiff would not include this.

Mode of Assignment (Section 19)

As per section 19, assignment of copyright is valid only if it is in writing and signed by the assignor or his duly authorized agent.

The assignment of a copyright in a work should identify the work and specify kind of rights assigned and the duration and territorial extent of such assignment.

Further, it should specify the amount of royalty payable, if any, to the author or his legal heirs during the continuance of assignment and the assignment will be subject to revision, extension or termination on terms mutually agreed upon by the parties.

If the period of assignment is not mentioned it will be deemed to be taken as five years from the date of assignment.

If the territorial extent of such assignment is not stipulated, it will be taken as applicable in whole of India.

MODE OF ASSIGNMENT:

Section 19 lays down condition of assignment as follows;

Mode of assignment.

(1) ] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.

(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section

(6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.

Also, Section 19(8) contemplates that the assignment of copyright work against the terms and conditions on which rights have been assigned to a particular copyright society where the author of the work is a member shall be void.

Further, Section 19(9) and section 19(10) opine that the assignment of copyright for making cinematograph film or sound recording shall not affect the right of the author to claim an equal share of the royalties and consideration payable with respect to use of his protected work.

In Saregama India Ltd v. Suresh Jindal⁴, it was held that the owner of the copyright in a future work may assign the copyright to any person either wholly or partially for the whole of the copyright or any part thereof and once the assignment is made the assignee for the purpose of this Act is treated as the owner of the copyright.

Disputes with Respect to Assignment of Copyright (Section 19a)

As per section 19(a) the Appellate Board may on the receipt of a complaint from the assignor and on holding such inquiry as it may deem necessary, revoke such assignment, if the assignee fails to make sufficient exercise of the rights assigned to him , and such failure is not attributable to any act or omission of the assignor.

In case of a dispute with respect to the assignment of copyright, the Appellate Board may pass a suitable order on receiving a complaint from the aggrieved party and after holding such inquiry as it considers necessary including an order for the recovery of any royalty payable.

Assignment by Operation of Law (Section 20)

When the owner of a copyright dies the copyright will pass on to his personal representative as part of the estate, provided that no will has been executed.

Section 20 provides that if a person is entitled for copyright under bequest and such work has not been published before the death of the testator, unless contrary intention is shown under testators will or any codicil thereto, such person shall be considered as having copyright in the work so far as testator was the owner of copyright immediately before his death.

Licensing of Copyright

The owner of copyright may grant a license to do any of the act in respect of which he has an exclusive right to do. The license can be classified into following categories:

A. Voluntary license (Section 30)

B. Compulsory License

Voluntary license (Section 30)

The author or the copyright owner has exclusive rights in his creative work and he alone has right to grant license with respect to such work.

According to section 30 of the Copyright Act 1957, the owner of the copyright in a work may grant any interest in his copyright to any person by license in writing, which is to be signed by him or by his duly authorised agent.

A license can be granted not only in existing work but also in respect of the future work, in this situation assignment shall come into force when such future work comes into existence.

Where a licensee of the copyright in a future work dies before such work comes into existence, his legal representatives shall be entitled to the benefit of the license if there is no provision to contrary.

The mode of license is like an assignment deed, with necessary adaptations and modifications in section 19 (section 30A). Therefore, like an assignment, a license deed in relation to a work should comprise of following particulars:

· Duration of license

· The rights which have been licensed

· Territorial extent of the licensed

· The quantum of royalty payable

· Terms regarding revision

· Extension and termination

Voluntary licenses can be:

· Exclusive - The term exclusive license has been defined in Section 2(j) as a license which confers on the licensee and persons authorized by him, to the exclusion of all other persons, any right comprised in the copyright work.

· Non-exclusive – It does not confer right of exclusion. It is mere grant of an authority to do a particular thing which otherwise would have constituted an infringement. When owner grants an exclusive right, he denudes himself of all rights and retains no claim on the economic rights so transferred.

· Co-exclusive – Here the licensor grants a license to more than one licensee but agrees that it will only grant licences to a limited group of other licensees.

· Sole license – Where only the licensor and the licensee can use it to the exclusion of any other third party.

· Implied license – Author impliedly allows or permits the use of his work. For example, he had knowledge that someone is using his work but he did not take any action.

Compulsory License

Being a member of Berne Convention, India has incorporated the provision of compulsory license in the Copyright Act, 1957. The Act provides for grant of compulsory license for Indian work in the public interest, in certain circumstances:

· Works Withheld from Public

· Compulsory License in Unpublished or Published Work (Section 31-A)

· Compulsory License for the Benefit of Disabled Persons (Section 31-B)

· Statutory License for Cover Versions (Section 31-C)

· Statutory Licensing for Broadcasting of Literary and Musical Work and Sound Recording (Section 31-D)

· License to Produce and Publish Translation of Literary or Dramatic Work in any Language (Section 32)

· License to Reproduce and Publish Works for Certain Purposes (Section 32-A)

Works Withheld from Public

The Indian Copyright Act provides for the grant of compulsory licences in work which has been published or performed in public.

It empowers the Appellate Board to direct the Registrar to grant license, if a complaint is made to it in writing under the Act, during the subsistence of copyright stating the necessary facts which are conditions precedent to its exercise of power, provided the owner has been approached in the first instance for the grant of license and it is only if he has refused to publish or allow the republication of the work and by the reason of such refusal the work is withheld from the public.

In case where two or more persons have made a complaint, the licence shall be granted to the complainant who in the opinion of the Copyright Board would serve the interest of the general public.

In Super Cassette Industries Ltd v. Entertainment Network (India) Ltd, Mumbai the respondents who were running a radio FM channel under the brand name Radio Mirchi, made several attempts to obtain a license from Super Cassette Industries ltd (SCIL) to play its sound recordings but failed to get it.

The Copyright Board ultimately issued them a compulsory license against which an appeal was been filed in the Delhi High Court.

After contemplating over section 31, Court observed that in case compulsory license had to be granted to all, then there was no need of any enquiry as envisaged by section 31.

The court also opined that once the copyright was in public, refusal has to be made on reasonable and valid ground.

While making an order under section 31, the Board had to maintain a delicate balance between the private rights and the copyright vis-a vis- public interest.

The case was sent back to the Copyright Board for fresh consideration.

Compulsory License in Unpublished or Published Work (Section 31-A)

According to this section, where the author is dead or unknown or cannot be traced , or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a license to publish such work or translation thereof in any language.

Before making such an application, the applicant should publish his proposal in one issue of a daily newspaper in that language. The application to the copyright board should be in the prescribed form and accompanied by the prescribed fee and with the copy of advertisement issued.

The Copyright Board after making the certain prescribed enquires direct the Registrar of Copyright to grant license to the applicant to publish the work or its translation subject to the payment of royalty and other conditions.

Compulsory License for the Benefit of Disabled Persons (Section 31-B)

Any person working for the benefit of persons with disability on a profit basis or for business may apply in prescribed manner to the Appellate Board for a compulsory licence to publish any work in which copyright subsists for the benefit of such persons.

However, where a compulsory licence has been issued, the Appellate Board may on a further application and after giving reasonable opportunity to the owners of the rights, extend the period of compulsory licence and allow the issue of more copies as it deems fit.

Statutory License for Cover Versions (Section 31-C)

Cover means a sound recording made in accordance with section 31C. Any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work with the consent or licence of the owner of the work, can do so.

The person making the cover version is required to give prior notice to the owner of the copyright in such works and to the Registrar of Copyright at least 15 days in advance of making the cover version.

Advance copies of all covers with which the sound recording is to be sold to be provided or royalties to be paid in advance.

One royalty in respect of such sound recordings shall be paid for a minimum of fifty thousand copies of each work during each year.

The Delhi High Court in Star India Pvt Ltd v. Piyush Aggarwal, stated that sound recording included a subsequent original sound recording made from the musical and literary work and which was called a version recording i.e. a sound recording made after a first sound recording was made by use of the musical work and literary work.

Statutory Licensing for Broadcasting of Literary and Musical Work and Sound Recording (Section 31-D)

Any broadcasting organization, desirous of communicating published work to the public by way of broadcast (by way of television broadcast or radio) or a performance of any published musical/ lyrical work and sound recording, can do so by giving prior notice of this intention to the owners.

The notice must specify the duration and territorial coverage of the broadcast.

Corresponding royalties are required to be paid to the owner of copyrighted work.

Rates of television broadcasting are different from the rate fixed with respect to radio broadcasting.

At the time of fixing the rate of royalty the Copyright Board may ask the broadcasting organisation to deposit some amount of money in advance to the owner.

License to Produce and Publish Translation of Literary or Dramatic Work in any Language (Section 32)

Section 32 of the Copyright Act provides that after expiry of a period of seven years from the first publication of a literary or dramatic work, any person may apply to the Copyright Board for a license to produce and publish a translation of work.

Where the work is not Indian work, any person may apply to the Board for a license to produce and publish a translation in printed or analogous form of reproduction of a literary or dramatic work in any language in general use in India after a period of three years from the first publication of such work, if such translation is required for the purpose of teaching, scholarship or research.

But where translation is in a language not in general use in any developed country, such application may be made after the period of one year from such publication.

License to Reproduce and Publish Works for Certain Purposes (Section 32-A)

According to this section, any person may apply to the Copyright Board for a license to reproduce and publish any literary, scientific or artistic work after the expiration of the relevant period from the date of first publication of an edition of such work, if the copies of such edition are not made available in India , or such copies have not been put on sale in India for a period of six months to the general public or in connection with systematically instructional activities at a price reasonably related to that normally charged in India for comparable works by the owner of the right of reproduction or by any person authorised by him in this behalf.

The period prescribed are:

Seven years for work related to fiction, poetry, drama, music or art

Three years for works related to natural science, physical science mathematics or technology

Five years for any other work

Conclusion

The term 'assignment' and 'license' are not interchangeable. An assignment is different from a license. Generally, in absence of any provision to the contrary the assignee becomes the owner of the assigned work, whereas in case of a license the licensee gets the right to exercise particular rights only. An assignment may be general, i.e. without limitation or an assignment may be subject to limitations. It may be for the whole term of copyright or any part thereof.

An assignment transfers an interest in and deals with copyright itself as provided under section 14 of the Act, but license does not convey the copyright but only grants a right to do something, which in absence of license would be unlawful.

An assignment transfers title in copyright, a license merely permits certain things to be done by licensee. The assignee being invested with the title in the copyright may reassign

Infringement

A copyright is infringed if a person without an appropriate permission or licence does anything that the owner of the copyright has an exclusive right to do. There are two classes of infringement: primary infringement and secondary infringement.

Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.

Copying

· Issuing copies of the work to the public

· Renting or lending the work to the public

· Performing, showing or playing a copyright work in public

· Communicating the work to the public

· Making an adaptation of a copyright work or

· doing any of the acts listed above in relation to an adaption.

R. G Anand V Delux Films AIR 1978 SC1613

Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:

Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire

Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright

By way of trade exhibits in public

Imports into India

There are certain acts permitted with respect to copyright works which act an exceptions to infringement of copyright. Under the Act there are certain circumstances which constitute fair dealing, which is not considered an infringement.

Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:

· Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire

· Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright

· By way of trade exhibits in public

· Imports into India

The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions.

Reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions.

The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording. (The audience must be limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording)

The making of sound recordings in respect of any literary, dramatic or musical work, if sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, or the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him.

EXCEPTION

The causing of a recording to be heard in public by utilizing it, in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or as part of the activities of a club or similar organization which is not established or conducted for profit; or as part of the activities of a club, society or other organization which is not established or conducted for profit.

The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.

The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.

The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public.

The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

The storing of a work in any medium by electronic means by a non-commercial public library for preservation, if the library already possesses a non-digital copy of the work.

The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.

The reproduction or publication of any matter which has been published in any Official Gazette except an Act of a Legislature, or any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter, or the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government, or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court.

The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder.

The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.

The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under Section 2(c)(iii) of the Act, if such work is permanently situated in a public place or any premises to which the public has access.

The inclusion in a cinematograph film of any artistic work permanently situated in a public place or any premises to which the public has access; or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.

The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.

The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.

The adaptation, reproduction, issue of copies, or communication to the public of any work in any accessible format by any person to facilitate persons with disabilities to access the works; or any organisation working for the benefit of persons with disabilities in the case that the normal format prevents the enjoyment of such work by such persons.

Further, under the Act, hypertext linking does not per se constitute copyright infringement; however, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in the case of hyperlinking, the linking site is not reproducing any work. If the reproduction occurs, it is at the user’s end, who visits the linked page via the link. Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is at the user’s discretion to access the work by clicking the link. But, nevertheless, the linking site is definitely aiding in the distribution of the work.

Under the Act, an infringement of copyright is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the type of licence involved. An exclusive licence authorises the licensee to exercise a right which would otherwise be exercisable exclusively by the copyright owner. One such right is the right to bring an infringement action. A non-exclusive license may also authorise the licensee to bring an infringement action but only where the licence is in writing and signed by the copyright owner and expressly grant.

Under new provision introduced in 1995, even a person using a computer program, knowing that the program infringes a copyright, will be punishable imprisonment not less than 7 days extending to 3 years & a fine not less than Rs 50,000/- extending to Rs 2 Lakh.

Police officers of rank sub-inspector & above have wide powers to search and seize any work infringing copyrights.

Exemptions from Copyright Violations

The enjoyment of every property is subject to restrictions imposed by the State. The Act exempts several activities from the obligations of copyright violation.

In relation to literary work –

• A fair dealing with literary, dramatic, musical or artistic work for purpose of private use, research, criticism or review, reporting current events in a newspaper/magazine/broadcast/cinematographic film/still photographs.

• Reproduction of work for the purpose of the Sate or functioning of law, for e.g. judicial or legislative proceedings.

• Reading or recitation in public from a published literary or dramatic work.

• Publication of short passages of such works for educational purposes – by a teacher or pupil in the course of instruction.

• Making of up to 3 copies of a book for a public library, if such book is not available for reading/sale in India.

Exemptions from Copyright Violations

• Reproduction of an article on current economical, political, social or religious matters in newspapers, magazines etc unless the author has expressly reserved this right to himself.

• Reproduction or publication of any matter published in official Gazettes, including Acts enacted by the Parliament or State Legislature. In the case of reproduction of Acts, all commentaries & other original matter also have to be published.

• Reproduction or publication of any committee, commission, council appointed by the legislature, unless the government has prohibited it.

• Reproduction or publication of any judgment or order of a court, tribunal or other judicial authority, unless it has been prohibited by the court.

Exemptions from Copyright Violations

In relation to computer related copyrights –

• Making of copies or adaptations of computer programs for utilizing it.

• Making of a copy to protect against the loss of the original.

• The observation, study or test of functioning of the computer program, to determine the ideas & principles that underline any element of the program, while performing such acts that are necessary for the functions for which the computer program was supplied..

• The making of copies or adaptations of the computer program from a personally legally obtained copy, for non-commercial personal use.

Registration of a Copyright

A person does not have to register his work to become the owner. But registration is useful if a dispute arises in relation to an infringement of a copyright. A certificate of Registration becomes a crucial prima-facie evidence before a court about the ownership of the material.

For registration, the office of the Registrar of Copyrights has been created.

It is maintained in the Copyright office of the Department of Education.

The register contains 6 parts as under –

• Part 1 - Literary works other than Computer Programs.

• Part 2 – Musical Works

• Part 3 – Artistic Works

• Part 4 – Cinematograph Films

• Part 5 – Sound Recording

• Part 6 – Computer Programs, tables & compilations, including databases

Chapter X of the Indian Copyright Act,1957 and Rule 70 of Copyright Rules, 2013, mention the following procedure about the registration of copyrights in India:

1. Application: An author or applicant can file the application for registration of copyright, himself or via his authorized legal representative.

This application can be made by applying physically in the copyright office or through speed/registered post; or through e-filing facility available on the official website of Copyrights Office (copyright.gov.in).

There should be one application for one work. Each application in Form IV should be accompanied by the requisite fee prescribed in the second schedule to the Rules. Fee ranges from 500 INR to 40,000 INR, depending on the form of work.

The fee can either be in the form of Demand Draft or Indian Postal Order favoring “Registrar of Copyright Payable at New Delhi” or through E-payment.

Other information which needs to be provided are:

a) Name, address, the nationality of the applicant;

b) Nature of applicant’s interest in the work;

c) Title of the work;

d) Name, address, the nationality of the author of the work and if the author is deceased, date of his death;

e) Language of the work;

f) Whether the work is published or unpublished;

i) Year and Country of first publication and Name, address, the nationality of the publisher;

ii) Year and Countries of subsequent publications, if any, and name, address, the nationality of subsequent publishers;

g) Name, address, the nationality of a person authorized to assign or license the rights comprising the copyright, if any;

h) No-objection Certificate signed by the author (if different from applicant);

i) Vakalatnama or Power of attorney signed by the advocate and the party (if the application is made by the advocate of the party);

j) Three copies of published work must be sent along with the application.

k) If the work is unpublished, two copies of the manuscripts must be sent with the application (one copy will be duly stamped and returned and other will be retained).

l) Application for registration of a computer programme must be filed with the source and object code.

m) Application for registration of an artistic work used or capable of being used in relation to goods must be filed with a statement to that effect and a no-objection certificate from the Registrar of Trademarks.

n) Application for registration of an artistic work capable of being registered as a design must be filed with a statement in the form of an affidavit stating that it has not been registered under Designs Act, 2000 and has not been applied to any article through an industrial process.

o) Application must be signed by the applicant or the advocate;

p) Applicant must provide his mobile number and email address to receive the filing number.

2. Examination:

Once the application is filed, a diary number is received.

There is a provision of a mandatory wait period of 30 days, so that “No Objection” is filed against the claim made by the author.

If some objection is filed against the copyright claim, then it may take one more month.

The Registrar of Copyrights gives both the parties an opportunity of hearing the matter.

After the decision on the ownership or if the objection is rejected, the application goes for scrutiny.

The applicant is asked to remove any discrepancy, if found; within 30 days.

3. Registration:

On further submission of documents, if the Copyright Registrar, is completely satisfied with the completeness and correctness of the claim made in the application, he shall enter the particulars of the copyright in the register of copyrights and further issue a Certificate of Registration.

Registration completes when the applicant is issued with the copy of entries made in the Register of Copyrights.

Copyright in India is recognized virtually worldwide under the “Berne Convention” and the applicable law of its member nations.

If total compliance is followed the “certificate of copyright” is a future safeguard for the creative minds to preserve their creativity and reap exclusive monetary benefits from it as well.

Process Flow Chart

Copright -Registration-Process-Flow.webp

International Perspective

Berne Convention for Protection of Literary and Artistic Work, 1886

· Works in Literary, Scientific and artistic domain, whatever may be the mode of expression, such as books, pamphlets, lectures, addresses, sermons

· Derivative works translation, adaptations, arrangement of music and other alterations of a literary or artistic work

· Generally term period 50 years after the death of author

· National Treatment

· Automatic Protection

IPR

Legal Llama

COPYRIGHT

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