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Copyright
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is the legal
protection given to the creator of an original literary or artistic work. It is
the exclusive right granted by the law to creator of such original work, to do,
authorize, or prohibit certain acts in relation to such work.
Copyright assumes supreme importance for authors,
artists, architects, composers, music production companies and producers, film
production companies, computer programmers and designers
Before the signing and
the subsequent introduction of the 1957 Act, the copyright laws of India were
governed by the Copyright Act of 1914. This act was linked to the British
Copyright of 1911 to India. Most of the laws contained in the Copyright Act of
1957 are based on the copyright law of the United Kingdom--specifically the
Copyright Act of 1956. India's copyright laws comply with most international
conventions and treaties dealing with copyright protection. The country is a
member of the Berne Convention of 1886, the Universal Copyright Convention of
1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights
Agreement of 1995--or TRIPS. The country is not a signatory to the Rome
Convention of 1961, but the laws regarding the copyrights in the country still
comply with the convention. The Copyright Act, 1957 protects original literary,
dramatic, musical and artistic works and cinematograph films and sound
recordings from unauthorized uses.
The present article is an attempt to highlight major
areas of the copyright law in India. It does not cover the entire law but is an
endeavour to make the law and the process easier to understand from perspective
of man with or without legal background.
Definitions
a) Work
Classes of works for which copyrights protection is available in India
· Original literary, dramatic, musical and artistic works;
· Cinematograph films; and
· Sound recordings.
b) Artistic work
· A painting, a sculpture, 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.
c) 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.
d) 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.
e) 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 process analogous to cinematography including video films.
f) Coverage for Government Work
The copyright of 1957 also calls for protection of government work.
Government work, according to the act, refers to all works that are made,
published and made under the direction or control of the government, the
legislature, the courts, tribunal and other judicial authority.
g) Author
Ordinarily the author is the first owner of copyright in a work.
· 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.
2. Assignment of copyright
Assignment of Copyrights can be made in whole or in part either generally
or subject to limitations and either for the whole term of the copyright or any
part thereof. In other words, you may assign away 50%, 1%, or 99% of your
interest in that Copyright. Assignments may be integrated into a contract, or
may be drafted separately.
a) Mode of assigning copyright
It shall be in writing signed by the assignor or by his duly authorised
agent. It shall identify the specific works and specify the rights assigned and
the duration and territorial extent of such assignment. It 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.
b) Period of assignment
If the period of
assignment is not stated, it shall be deemed to be five years from the date of
assignment.
c) Assignment and License
• A license is an authorization of an act which, without such
authorization becomes infringement.
• In essence a license is a grant of authority to do a particular thing
which otherwise could not have been done.
• It amounts to a consent or permission granted by the owner of copyright
that the licensee could carry out a restricted act which but for such
permission could have been an infringement
• Owner of copyright in an existing work or future work ‘may grant any
interest in the right by license in writing signed by him or his duly
authorized agent’ (S. 30)
Transfer of ownership of the rightsAssignment leaves nothing
in the grantor qua the right assigned bestowing in the grantee the whole of the
legal interest in the right
Capacity to sue for infringementA licensee cannot
sue for infringement of copyright unless he joins the copyright owner as a co
plaintiff in the action.
Section 61 of the Act provides that in every civil
suit or other proceeding regarding infringement of copyright instituted by an
exclusive licensee, the owner of copyright shall be made a defendant, unless
the court otherwise directs.
In such situations the owner of the copyright can
dispute the claim of exclusive license. This provision thus protects the
interests of the right holders.
3.
Examples of subsistence/rights
a) Rights in a musical sound recording A sound recording generally comprises various rights For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music,. It is necessary to obtain the licences from each and every right owner in the sound recording. This would, inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music.
b) 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.
c) 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.
4.
Adaptation In the law of copyrights the exclusive right of the author of a literary
project to reproduce, publish, and sell his or her work, which is granted by
statute, adaptation refers to the creation of a derivative work, which is
protected by copyright laws.
A derivative work involves a recasting or translation
process that incorporates preexisting material capable of protection by
copyright. An adaptation is copyrighted if it meets the requirement of
originality, in the sense that the author has created it by his or her own
proficiency, labor, and judgment without directly copying or subtly imitating
the preexisting material. Mere minor alterations will not suffice
The Copyright Act defines the following acts as adaptations:
Ø Conversion of a dramatic work into a non dramatic work
Ø Conversion of a literary or artistic work into a dramatic work
Ø Re-arrangement of a literary or dramatic work
Ø Depiction in a comic form or through pictures of a literary or dramatic
work
Ø 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.
Copyright
over news
There is no copyright over news. However, there is
copyright over the way in which a news item is reported.
5.
Registration of Copyright
a) Guidelines regarding registration of a work under the Copyright Act Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work. Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil Lines, Delhi or his authorised dealers on payment. The procedure for registration is as follows:
• Application for registration is to be made on Form IV ( Including
Statement of Particulars and Statement of Further Particulars) as prescribed in
the first schedule to the Rules ;
• Separate applications should be made for registration of each work;
• Each application should be accompanied by the requisite fee prescribed
in the second schedule to the Rules ; and
• The applications should be signed by the applicant or the advocate in
whose favour a Vakalatnama or Power of Attorney (neither notarization nor
consular legalization required) has been executed. The Power of Attorney signed
by the party and accepted by the advocate should also be enclosed.
b)
Both published and unpublished works can be registered.
Three copies of published
work may be sent along with the application. If the work to be registered is
unpublished, a copy of the manuscript has to be sent along with the application
for affixing the stamp of the Copyright Office in proof of the work having been
registered. In case two copies of the manuscript are sent, one copy of the same
duly stamped will be returned, while the other will be retained, as far as
possible, in the Copyright Office for record and will be kept confidential. It
would also be open to the applicant to send only extracts from the unpublished
work instead of the whole manuscript and ask for the return of the extracts
after being stamped with the seal of the Copyright Office.
If the work is a Computer programme, in addition to
the above 3 Copies of the work in CD or Floppy Diskette must be provided.
c)
Steps involved in getting copyright registration certificate: 1. The application
with complete details is filed.
2. Thereafter, the application is examined and
objections, if any, are raised.
3. The certificate is issued by the copyright office
after the objections, if any, are removed to the satisfaction of the
department.
When a work has been registered as unpublished and
subsequently it is published, the applicant may apply for changes in
particulars entered in the Register of Copyright in Form V with prescribed fee.
6.
Term of Copyright
The duration of
copyrights varies from country to country. The minimum duration of copyright
protection under Berne Convention is 50 years. European Union and for countries
of the European economic area and in the US the duration is 70 years. In India
copyrights are protected for a period of sixty years from the beginning of the
calendar year next following the year in which the author dies.
In the case of original
literary, dramatic, musical and artistic works the 60-year period is counted
from the year following the death of the author. In the case of cinematograph
films, sound recordings, photographs, posthumous publications, anonymous and
pseudonymous publications, works of government and works of international
organisations, the 60-year period is counted from the date of publication.
7.
Performer’s Rights
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.
"Performance"
in relation to performer’s right, means any visual or acoustic presentation
made live by one or more performers.
Rights of a performer
A performer has the following rights in his/her performance:
· Right to make a sound recording or visual recording of the performance;
· Right to reproduce the sound recording or visual recording of the
performance;
· Right to broadcast the performance;
· Right to communicate the performance to the public otherwise than by
broadcast.
Performer’s rights subsist for 25 years.
8.
Protection of Foreign Works
The Indian Copyright Act
today is compliant with most international conventions and treaties in the
field of copyrights. India is a member of the Berne Convention of 1886 (as
modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement
on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of
1995. Though India is not a member of the Rome Convention of 1961, the
Copyright Act, 1957 is fully compliant with the Rome Convention provisions.
Copyright of nationals of countries who are members of the Berne Convention for
the Protection of Literary and Artistic Works, Universal Copyright Convention
and the TRIPS Agreement are protected in India through the International
Copyright Order.The Berne Convention and the TRIPS Agreement stipulate the
subsistence of copyright in original literary, dramatic, musical and artistic
works; cinematographic film and sound recordings. These classes includes
variety of works like books, pamphlets and other writings; lectures, addresses,
sermons; dramatic or dramatic-musical works, choreographic works; musical
composition, chirographic works; drawing, painting, architecture, sculpture,
engraving; and lithography, photography, maps, plans, sketches, three
dimensional works, translations, encyclopedias and anthologies, software codes,
multimedia productions, etc.
9.
Copyright Infringements
Copyright infringement
(or copyright violation) is the unauthorized or prohibited use of works covered
by copyright law, in a way that violates one of the copyright owner's exclusive
rights, such as the right to reproduce or perform the copyrighted work, or to
make derivative works.
For electronic and audio-visual media, unauthorized
reproduction and distribution is also commonly referred to as piracy.
The copyright
infringement occurs when a copyrighted work is reproduced, distributed,
performed, publicly displayed, or made into a derivative work without the
permission of the copyright owner.
a) Civil remedies for copyright infringement
A copyright owner can take legal action against any
person who infringes the copyright in the work. The copyright owner is entitled
to remedies by way of injunctions, damages and accounts.
The District Court concerned has the jurisdiction in
civil suits regarding copyright infringement.
b)
Copyright infringement: Criminal offence under the copyright law
Any person who knowingly infringes or abets the
infringement of the copyright in any work commits criminal offence under
Section 63 of the Copyright Act.
The minimum punishment for infringement of copyright
is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the
case of a second and subsequent conviction the minimum punishment is
imprisonment for one year and fine of Rs. one lakh.
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.
c) Jurisdiction No court inferior to that of a
Metropolitan Magistrate or a Judicial Magistrate of the first class shall try
any offence under the Copyright Act.
d) Defenses to infringement defendant in an
infringement action may rebut the presumption of copying by a showing of
independent creation. It is possible for an author to create a work independently
while bearing similarities to another. If access is not established, there is
no copying, even if there is a striking similarity between the two works. For
this reason, corporations will destroy or return unsolicited mailings from
authors as a policy.Some acts that would otherwise be a copyright infringement
are excused through the concept of "fair use." The statute states
that use for purposes of criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or research is fair
use. As to works not in these categories, the statute states that the factors
to be considered include the purpose and character of the use, including
whether it is of a commercial nature or for nonprofit educational purposes; the
nature of the copyrighted work; the amount and substantiality of the portion
used in relation to the copyrighted work as a whole; and the effect of the use
upon a potential market for or value of the copyrighted work. This involves
balancing the interests of the copyright owner and the one copying the
material.
6.
Term of Copyright
The duration of copyrights varies from country to
country. The minimum duration of copyright protection under Berne Convention is
50 years. European Union and for countries of the European economic area and in
the US the duration is 70 years. In India copyrights are protected for a period
of sixty years from the beginning of the calendar year next following the year
in which the author dies.
In the case of original literary, dramatic, musical
and artistic works the 60-year period is counted from the year following the
death of the author. In the case of cinematograph films, sound recordings,
photographs, posthumous publications, anonymous and pseudonymous publications,
works of government and works of international organisations, the 60-year
period is counted from the date of publication.
7.
Performer’s Rights 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.
"Performance"
in relation to performer’s right, means any visual or acoustic presentation
made live by one or more performers.
Rights of a performer
A performer has the following rights in his/her performance:
· Right to make a sound recording or visual recording of the performance;
· Right to reproduce the sound recording or visual recording of the
performance;
· Right to broadcast the performance;
· Right to communicate the performance to the public otherwise than by
broadcast.
Performer’s rights subsist for 25 years.
8.
Protection of Foreign Works The Indian Copyright Act today is
compliant with most international conventions and treaties in the field of
copyrights. India is a member of the Berne Convention of 1886 (as modified at
Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on
Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of
1995. Though India is not a member of the Rome Convention of 1961, the
Copyright Act, 1957 is fully compliant with the Rome Convention provisions.
Copyright of nationals of countries who are members of the Berne Convention for
the Protection of Literary and Artistic Works, Universal Copyright Convention
and the TRIPS Agreement are protected in India through the International
Copyright Order.The Berne Convention and the TRIPS Agreement stipulate the
subsistence of copyright in original literary, dramatic, musical and artistic
works; cinematographic film and sound recordings. These classes includes
variety of works like books, pamphlets and other writings; lectures, addresses,
sermons; dramatic or dramatic-musical works, choreographic works; musical
composition, chirographic works; drawing, painting, architecture, sculpture,
engraving; and lithography, photography, maps, plans, sketches, three
dimensional works, translations, encyclopedias and anthologies, software codes,
multimedia productions, etc.
9.
Copyright Infringements
Copyright infringement
(or copyright violation) is the unauthorized or prohibited use of works covered
by copyright law, in a way that violates one of the copyright owner's exclusive
rights, such as the right to reproduce or perform the copyrighted work, or to
make derivative works.
For electronic and audio-visual media, unauthorized
reproduction and distribution is also commonly referred to as piracy.
The copyright infringement occurs when a copyrighted
work is reproduced, distributed, performed, publicly displayed, or made into a
derivative work without the permission of the copyright owner.
a) Civil remedies for copyright
infringement
A copyright owner can take legal action against any
person who infringes the copyright in the work. The copyright owner is entitled
to remedies by way of injunctions, damages and accounts.
The District Court concerned has the jurisdiction in
civil suits regarding copyright infringement.
b) Copyright infringement:
Criminal offence under the copyright law: Any person who
knowingly infringes or abets the infringement of the copyright in any work
commits criminal offence under Section 63 of the Copyright Act.
The minimum punishment for infringement of copyright
is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the
case of a second and subsequent conviction the minimum punishment is
imprisonment for one year and fine of Rs. one lakh.
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.
c)
Jurisdiction: No court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence under the Copyright Act.
d)
Defenses to infringement: defendant in an
infringement action may rebut the presumption of copying by a showing of
independent creation. It is possible for an author to create a work independently
while bearing similarities to another. If access is not established, there is
no copying, even if there is a striking similarity between the two works. For
this reason, corporations will destroy or return unsolicited mailings from
authors as a policy.
Some acts that would
otherwise be a copyright infringement are excused through the concept of
"fair use." The statute states that use for purposes of criticism,
comment, news reporting, teaching (including multiple copies for classroom
use), scholarship, or research is fair use. As to works not in these
categories, the statute states that the factors to be considered include the
purpose and character of the use, including whether it is of a commercial
nature or for nonprofit educational purposes; the nature of the copyrighted
work; the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and the effect of the use upon a potential market
for or value of the copyrighted work. This involves balancing the interests of
the copyright owner and the one copying the material.
10.
Exemptions Subject to certain
conditions, law allows any use of a work without permission of the owner of the 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.
11.
Use of the "©" symbolAnyone who claims copyrights in a work
can use copyright notice to alert the public of the claim. It is not necessary
to have a registration to use the designations though it is highly advisable to
incorporate a copyright notice like the symbol, letter "c" in a
circle or the word "Copyright" followed by name of copyright owner
and year of first publication.
Posted in: COPYRIGHTS
