Understanding copyright
Law makes a distinction between tangible and intangible
property. Your car, house, land etc are all examples of your tangible property.
If, however, you are the author of a book, then the way in which you express
your ideas is your intangible property. This intangible property is also known
as intellectual property. The best illustration of the difference between
tangible and intangible property is that of a letter.
X, a famous actress, writes a letter to her friend, Y. Y then
proceeds to publish the letter on the Internet without the permission of X. The
contents of the letter do not contain any controversial material, nor does it
violate the privacy of X. X, however, decides to sue Y for a violation of her
copyright. Will she succeed?
To decide this, you will have to determine:
1.
Whether there is a copyright in the
letter
2.
Assuming that there is a copyright in
the letter, who is the owner of the letter?
The answer is that while Y will be the owner of the letter (the
hard copy), and while the letter may be sold -- for instance, to an auction
house, the law makes a difference between the letter and the copyright that
vests in the contents of the letter. And X remains the owner of the copyright
in the letter even though Y is the owner of the tangible property.
Indian copyright law
We will examine the provisions of the law relating to copyright in India by answering some frequently asked questions:
What is copyright?
It is an exclusive right granted to the author of an original work (eg, lyrics, movies, computer programmes, paintings and even an architectural building) for a limited period of time.
Does copyright protect ideas or only
unique expressions of ideas?
An important doctrine in copyright law is the idea-expression dichotomy, wherein copyright does not seek to protect ideas, only unique expressions of ideas. The reason for this is that the protection of ideas per se would result in the blocking of ideas for future use by people. An example of the idea-expression dichotomy is this: 'Boy meets girl, they fall in love' is an idea which, if protected, would result in the end of Bollywood as we know it. However, if I created a story in which a boy meets a girl on a trip to Europe, and then chases the girl all the way to Punjab, where she is supposed to get married, I would have Dilwale Dulhaniya Le Jaayenge , a unique expression of the boy meets girl idea.
What are the classes of works covered
under copyright?
There are three types of works in
which copyright subsists:
a) Original,
literary, dramatic, musical and artistic works
Literary: Literary work basically means any form of written work -- eg,
J K Rowling's 'Harry Potter' series. Literary work also includes tables,
compilations, computer programmes, etc.
Dramatic: Dramatic work is generally work that can be enacted -- eg, the
play script of Devdas. It also includes recitations, choreography etc.
Musical: A piece composed by Ravi Shankar is an example of a musical
work. It refers basically to a combination of melody and harmony.
Artistic work: Artistic work means visual art (painting, sculpture, drawing,
etc). An artistic work could also include comic strips, photographs, etc.
It is important to note that the stress here is on the word
'original'. For the purpose of copyright law the word has a much narrower
meaning than it does in common usage. Copyright law is not concerned with the
originality of ideas per se but with the originality of the expression of the
idea. For example, if 'reaching the moon' is the idea is on which X has written
a poem and, subsequently, Y decides to write a poem based on the same idea of
'reaching the moon', as long as the poem that Y writes is different -- in that
the words he/she uses to express the idea are not the same as those used by X,
then Y's poem is an 'original literary work', according to copyright law.
b) Cinematograph films
A cinematograph film is a visual recording. It is a combination
of diverse arts and music (eg, soundtrack, acting, dancing, etc) which cannot
be detached from the work itself. When a cinematograph producer commissions a
music composer or a lyricist to compose music or write lyrics for the purpose
of making a cinematograph film and, in return, pays them for their work, he or
she (and not the composer or lyricist) becomes the owner of all the copyright
in the work that is produced.
It is important to remember that no copyright subsists with the
writer of the lyrics or the composer of the music unless there is a contract
stipulating otherwise.
c) Sound recording
'Sound recording' means recording of sound regardless of the
medium or method in which such recording is made -- eg tapes, records, discs,
perforated rolls and other devices. A good example of a sound recording would
be an audio cassette such as 'Pandit Hari Prasad Chaurasia's Greatest Hits' by
HMV.
What is the owner of a copyright
authorised to do?
The copyright owner has various rights. The law authorises him/her to:
1.
Reproduce the work -- which basically
means making copies. When I make copies of a master copy of a tape called Music
with Ram then I am actually reproducing it. In the case of a book, every copy
and every new edition can be considered a reproduction.
2.
Perform the work in public.
3.
Make a cinematograph film or sound
recording in case the work is a literary, dramatic or musical work.
4.
Make translations of the work.
5.
Make adaptations of the work.
6.
In the case of a computer programme,
sell or give on commercial rental any copy of the computer programme.
7.
In the case of a cinematograph
film/sound recording, sell or give on hire any copy of the work.
How long can a person have copyright
in a work?
In the case of a published literary, dramatic, musical or artistic work the copyright subsists during the author's lifetime and 60 years after his death (the 60 years are counted from the beginning of the calendar year that follows the year in which the author died). In the case of an anonymous work, cinematograph film and sound recording, the copyright shall subsist for 60 years from the beginning of the calendar year that follows the year in which the work is published/produced.
For example, Z publishes a book in the month of January 2000 and
dies in December 2000. The copyright will vest with the book's copyright owner
until December 31, 2060.
NB. After the lapse of the term of the copyright the work will
be in the public domain. Any person can now make copies of the book, translate
it etc, without permission -- eg, Tagore's work can now be published by anyone
because 60 years have elapsed since he died.
When is copyright infringed?
Copyright is infringed when:
a) A person who does not have a licence granted by the owner of
the copyright or registrar of copyrights does something which only the owner of
the copyright has the exclusive right to do.
Example: X is the distributor of VCDs for a film titled Cats and
Dogs . Y, who does not have the licence, imports VCDs of Cats and Dogs from
Malaysia and distributes it to various video stores which rent out VCDs. Here Y
and the video stores that buy the VCDs are infringing the copyright that vests
with X and the producer of the film.
b) person permits (for profit) the use of a place for the
communication of a copyrighted work to the public without the permission of the
copyright owner, then the communication of the work is an infringement of the
copyright of the author or owner.
Example: If a person allows a play to be staged in his/her
auditorium without permission from the copyright owner, that act will amount to
an infringement of copyright. However, if the person can prove he/she was not
aware that such communication to the public would be an infringement of
copyright, the person would not be liable.
Note: All 'infringing copies' of a work in which copyright
subsists are deemed to be the property of the owner of the copyright. The owner
can sue for the recovery of possession of the copies.
What is the penalty for infringement?
Section 63 of the Copyright Act of 1957 envisages three situations:
a) In the first case it covers a person who has infringed
another person's copyright for a commercial purpose or for profit - eg, video
parlours, VCD sellers, etc. To be culpable, the person infringing should have
knowingly made an infringement or knowingly helped in making an infringement.
If this is the case, he/she will be punishable with imprisonment for six
months, which could extend up to three years, and a fine of Rs 50, 000 that
could extend up to Rs 2,00,000.
b) In case the infringement has not been made for gain in the
course of trade or business, the person will be punishable with a sentence of
imprisonment for a term less than six months or a fine less than Rs 50,000.
In the case of a computer programme, any person who knowingly
makes use of an infringing copy on a computer will be punishable with
imprisonment for seven days, which may extend up to three years, and with a
fine of not less than Rs 50,000, which may extend up to Rs 2,00,000.
In the case Indian Express
Newspaper (Bombay) Pvt Ltd v Jagmohan ( AIR 1985 Bom
229) , the Bombay High Court has emphatically stated that
there is no copyright for happenings and events which could be news stories,
and a reporter cannot claim any copyright over such events because he/she
reported it first. The Court said that the ideas, information, natural
phenomena, and events on which an author expends his/her skill, labour,
capital, judgment and literary talents are common property and are not the
subject of copyright. Hence, there is no copyright in news or information per
se. However, copyright may be obtained for the form in which these are
expressed because of the skill and labour that goes into the writing of stories
or features and in the selection and arrangement of the material.
In the case of RG Anand v Delux
Films and Others (AIR 1978 SC 1614), R G Anand penned, produced and
staged a drama called Hum Hindusthani and Delux Films made a
film, New Delhi, on the same theme, which was released in 1956.
Anand saw the film and found it to be an exact copy of his play. On a suit
filed by Anand, the lower courts found no infringement of copyright. The case
reached the Supreme Court, and the Supreme Court found that, while there were
similarities in the two works, no violation of copyright could be established
as there were also substantial dissimilarities between the two works. In its
judgment the Supreme Court elaborated on tests for infringement:
1. There can be no copyright in ideas, subject matter, themes,
plots, or historical or legendary facts.
2. Where the same idea is developed by different people in
different ways it is obvious that similarities are bound to occur since the
source is common. In order to be actionable the copy must be substantial and
material.
3. According to the Court, one of the surest and safest tests to
determine whether or not there has been a violation of copyright is to see if
the reader, spectator or the viewer, after having read or seen both the works,
is clearly of the same opinion and gets an unmistakable impression that the
subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated
differently so that subsequent work becomes a completely new work, no question
of violation of copyright arises.
5. In cases where the question is of the violation of the copyright
of a stage play by a film producer or a director, the task of the plaintiff to
prove piracy becomes more difficult.
A similar situation arose recently
when the television serial, Karishma - A Miracle of Destiny, was
alleged to be a plagiarised version of Barbara Taylor Bradford's novel, A
Woman of Substance. The Kolkata High Court reversed the stay order on
the telecast of the serial and directed Ms Bradford to pay damages. The
petition to challenge this HC order was dismissed by the Supreme Court which,
however, reversed the order directing damages. The court relied on the
idea-expression distinction in copyright law, followed by the Supreme Court of
India.
Are there any exceptions to
infringement ?
The doctrine of fair use or fair
dealing have been invoked by legislators and judges to provide exceptions to
copyright infringement.
The moral justification for copyright is that a person should be
able to reap the benefits of his or her own creation or mechanical labour. The
doctrine of fair use seeks to limit that exclusive right, to some extent, in
specific instances of overriding social interest.
A copyrighted work can be used
without the consent of the copyright holder to facilitate education, research,
and the dissemination of knowledge and information for the promotion of the
economy and culture of a society. The fair use doctrine is a valid defence when
there is market failure, or when transfer of use to the defendant will benefit
society, or when such fair use would not cause any substantial injury to the
copyright owner.[1]
Some typical circumstances under which the exceptions to
copyright infringement are invoked (in terms of fair use or otherwise):
1.
Factual material is open to public
inspection
2.
Act was done for
parliamentary/judicial proceedings
3.
Acts done in pursuance of ends
specifically authorised by the Copyright Act, such as advancement of education,
use in libraries and/or research, in the course of instruction, performance in
classrooms, broadcast recorded for educational use, etc
4.
Protection of the public's right to
be informed through photographs, news shots, reporting of events
5.
Use for the purposes of criticism or
review
6.
Public reading or recitation of a
literary work
7.
Recording of a work by a party that
is entitled to broadcast it
8.
Showing of broadcast to public
audience who have not paid for admission to venue
9.
Home-taping of broadcast
10. Reproducing one's own work or using parts of it
11. Filming and/or broadcasting a sculpture/work of art that is
publicly situated
12. Reproduction of an article in an artistic effort
13. Backup copies of computer software
14. Copies made in situations where the author may be presumed to be
dead for more than the time gap permitted for copyright to exist after the
death of the author/artist
15. Copies made to advertise the product itself
Section 52 of the Indian Copyrights Act, 1957, indicates the
incorporation of the 'fair use' doctrine and explains what is not legally an
infringement. If 'fair dealing' is not allowed, and permission has to be
obtained for every single use of any copyrighted information, the resulting
high transaction cost of obtaining information would make the free flow of
information both expensive and difficult.
Sec 52, which deals with fair dealing, also has special
provisions when it comes to computer software that set out three exceptions to
infringement:
·
Clause (ab) permits the lawful
possessor of a computer programme to 'obtain any other essential information'
for interoperability of an independently created computer programme, if that
information is not readily available.
·
Secondly, Clause (ac) allows for the
'observation, study, or test of functioning' of the computer programme in order
to determine the ideas and principle which underline any elements of the
programme while performing such acts as are necessary for the functions for
which the computer programme is supplied.
·
Thirdly, Clause (ad) allows the
making of copies or adaptation of the computer programme from a legally
obtained personal copy for non-commercial personal use.
Conclusion
Copyright emerged to provide a balance between providing incentives to authors of original works on the one hand, and ensuring a free flow of information on the other. In recent times, however, with every aspect of culture getting increasingly commodified, there has been a tilt in the balance in favour of owners of copyright. It is important to remember that copyright is not entirely a private law matter, as there are a number of important public considerations that have always been a part of copyright doctrines. The task is to revive and strengthen some of these doctrines that relate to the desirability of the free flow of information
Copyright emerged to provide a balance between providing incentives to authors of original works on the one hand, and ensuring a free flow of information on the other. In recent times, however, with every aspect of culture getting increasingly commodified, there has been a tilt in the balance in favour of owners of copyright. It is important to remember that copyright is not entirely a private law matter, as there are a number of important public considerations that have always been a part of copyright doctrines. The task is to revive and strengthen some of these doctrines that relate to the desirability of the free flow of information
Posted in: COPYRIGHTS
