What
is copyright?
Copyright
is a right given to creator or owner of an artistic, literary or dramatic work
to reproduce work for publication and performance in public.
Can
an Idea be copyright?
No,
an idea which is not expressed in a tangible form is not protected under
Copyright.
What
work can be copyright protected?
Any
original work which is expressed in written form or in the form of a drawing or
painting or any other form of expression except oral are eligible for copyright
protection. Mere oral expression of an idea is not entitled for copyright
protection.
Is
the Copyright Registration mandatory?
No,
the copyright is an in built right which is available from the moment the work
(literary, dramatic, artistic) came into existence.
What
are the rights available to owner against the infringers of copyright?
The
owner can avail both the civil and criminal action against the infringers under
the Copyright Act.
What
is the duration of Copyright?
The
duration of the protection under the copyright depends on the nature of work;
in
case of literary work, the term is life of author plus 50 years from the day of
calendar year preceding the death.
Copyright
in photograph, a cinematographic film and sound recording is 60 years from the
next Calendar year of publication.
Is
Copyright transferable?
Yes,
like any other property a copy right can be transferred absolutely e.g sale or
assignment or can be transferred for a limited period of time under licensing
arrangement.
Is
the Copyright protection worldwide?
The
laws governing copyright are almost similar in many countries. Moreover, there
are international treaties and agreement which govern the protection extended
to national of different countries under Copyright. The main Conventions are
Universal Copyright Convention, Berne Convention, WIPO Copyright Treaty etc.
Many countries require that work should be published in their territory to
avail the protection under the Copyright Law.
Is
reproduction in all form amounts to infringement?
No,
the reproduction for educational purposes, for news articles or for delivering
lectures does not amount to infringement. However, if the reproduction is done
for commercial gains, it amounts to infringement e.g. photocopying a text book
might be for educational purpose amounts to violation of Copyright. (This is
very general view and to have more precise insight into the relevant
provisions, please consults an advocate)
What
are the criteria for award of copyright protection?
Copyright
protection will be available if the following two conditions are fulfilled:
a.
Originality, meaning that the work owes it origin to the author. Originality is
different from novelty. An author of the work need not be the first to
articulate the ideas or create the work.
b.
Reduction into tangible form. For a work to be protected, it must be written
down, drawn, painted or taped. Mere oral expression of idea will not qualify
for copyright protection
Does
the copyright law protect the ideas of the author and the future commercial
expressions of the same idea?
No.
The copyright law does not protect the idea and protects only the method of
expression of idea. If an idea can only be expressed in a single way, such
expressions cannot be protected under the Law of Copyright. Future commercial
expressions of the idea cannot be protected under the Law of Copyright and it
can be protected only under the Law of Patent.
What
type of creative work does copyright protect?
Categories
of works of authorship can include but are not limited to; Literary, Dramatic
(including accompanying music) and Musical (including accompanying words or
lyrics), Choreographic (including Pantomimes), Pictorial, Graphic, Sculptural,
Computer Programs, Motion Pictures, Audiovisual and Sound recordings and
Architectural works.
The
subject matter of Copyright is generally described as an original creation of
authorship that must be fixed in a tangible medium of expression. The works as
now known or as later developed, must exist in some physical form. Virtually
any form of expression will act as a tangible medium from which they can be
reproduced or communicated, directly or using a machine or a device.
How
long does copyright last?
The
duration of the protection depends on the type of copyright.
In
case of ‘literary work’ Copyright lasts for the life span of the author and for
sixty years after the author’s death.
The
same principle applies to joint authorship (two or more), with the copyright
lasting for the life span of the longest surviving author and sixty years after
the longest surviving authors death.
In
the case of anonymous and psydonoumous work the copyright will subsist for
sixty years from the date of publication.
Copyright
in photographs will subsists for sixty years from the next calendar year of
publication.
Copyright
for cinematographic films will be sixty years from the next calendar year of
publication.
Copyright
for sound recording will be sixty years from the next calendar year of
publication
Is
copyright protection worldwide?
Most
countries have acts of law relating to intellectual property and copyright
issues with regard to their citizens rights. These countries are usually
signatories to the numerous world treaties and agreements on copyright.
Copyright laws are fairly similar worldwide. Many countries insist that for a
work to be protected in their territories, there must be a publication within
their territory within one year of the first publication. This requirement can
be complied with by sending an e-mail with the attachment of the protected work
to an addressee in other territories.
What
is Copyright?
Copyright
is a legal right, given exclusively to the creator/originator (or assignee) to
make further copies for publication and public performance.
What
are the various international Treaties relating to the Copyright?
There
have been numerous international copyright conventions some of which include;
Universal
Copyright Convention at Geneva in 1952.
Universal
Copyright Convention as revised at Paris on 24th July 1971.
Berne
Convention for the Protection of Literary and Artistic Works, Paris Act of 24th
July 1971 as amended on September 28th 1979.
[Note:
The first Berne Convention was on September 9th 1886]
WIPO
World Intellectual Property Organization Diplomatic Conference Geneva, December
2 to 20, 1996
WIPO
Copyright Treaty of December 20th 1996
WIPO
Performances and Phonograms Treaty of December 20th 1996
The
World Trade Organization Agreement on Trade Related Aspects of Intellectual Property
Rights, Final Act Marrakech on 15th April 1994.
What
work should I protect?
You
should protect everything that you create and which you consider to be of value
to you, or yours, now or in the future. If it is worth creating and if others
would find it worthy of copying then it is worth protecting.
What
is the benefit of protecting my work?
Once
your creation has been fixed in a tangible medium of expression the copyright
on your work is protected by copyright law.
By
registering your copyright you will have irrefutable proof of first ownership
of your intellectual property.
This
proof can be used in a court of law in alleged cases of copyright infringement.
When faced with an alleged case of copyright infringement you need this proof.
Proving
the date of creation can be a problem. Copyright registration can make the
proof on this point a lot easier. By registering it you will have an
individually numbered certificate of registration of copyright relating to that
particular copyright work.
Can
I transfer my copyright?
Copyright
can be ‘assigned’ (sold or given away) by the execution of a written document
signed by the copyright owner. It is also possible for you to grant a copyright
license, for a limited period of time, for specified forms of reproduction and
merchandising, and in limited countries throughout the world. It can be for a
specified flat fee or royalty, or both. In this way, you keep the copyright,
and control over the merchandising, and still generate income, with the client also
achieving their commercial aims.
Can
a company be considered the author? Can an author and owner be different from
one another?
A
company can never be considered as an author of a work. However, it can become
the owner, if the author creates the work within the scope of an employee’s
duties. A distinction between contract of employment and contract for services.
In the first case the employer becomes the owner and in the second case the
author becomes the owner.
Who
is an author?
Under
the copyright law, the creator of the original expression in a work is its
author. The author is also the owner of copyright unless there is a written
agreement by which the author assigns the copyright to another person or
entity, such as a publisher. In cases of works made for hire, the employer or
commissioning party is considered to be the author.
What
are the rights of an author?
If
the owner of the work is different from the author, the author will be eligible
for the “moral rights” of the author. These rights include the right to be
identified as an author and the right against the mutilation of the copyrighted
work.
How
much do I have to change in order to claim copyright in someone else’s work?
Only
the owner of copyright in a work has the right to prepare, or to authorize
someone else to create a new version of that work. Accordingly, you cannot
claim copyright to another’s work, no matter how much you change it, unless you
have the owner’s consent.
What
are the authorities created under the Copyright Act?
Under
the Copyright Act there is a Registrar of Copyright and a Copyright Board,
which specifically ascertain roles and responsibilities.
Copyright
Office is an Administrative Authority and Copyright Board is a quasi–judicial
body headed by a retired Supreme Court Judge.
Is
it possible for other people to use the copyrighted work even without the
consent of the owner?
Yes.
But before that they would have to apply to the Copyright Board and obtain a
Compulsory License. The Board will determine the terms and conditions under
which the other person can get a compulsory license.
In
addition, the Section 52 lays down that certain types of uses of Copyright will
not amount to a copyright infringement.
For
your information the Section 52 runs into 5 pages in fine print and hence it is
advisable to consult an attorney.
What
are the remedies in case of an infringement of copyright?
The
Law provides civil and criminal remedies in case of infringement of copyright.
Copyright infringement is a cognizable offence where a Police Officer not below
the Rank of a Sub-Inspector can arrest the offender without the warrant and
conduct the search even without prior authorization of a Court.
Copyright
infringement if proved in a Court of Law carries a minimum mandatory sentence
of imprisonment of six months and minimum fine of Rs. 50,000 which can extend
upto Rs. 2 lakh. The Act further provides that there will be an enhanced
penalty in case of second and subsequent convictions.
In
Civil Cases, the District Court can be persuaded not only to give an interim
injunction without notice to the other party but also usually gives a direction
under Order 39 Rule 7 of C.P.C. where a Commissioner appointed by the Court
will visit the premises of the infringers and will be empowered to conduct a
search of the inventors premises and cease infringing material from the
infringers premises. The seized material can be used at a later point of time
to establish infringement.
How is Copyright obtained?
Copyright in a work comes into existence automatically when the work is created.
Copyright in a work comes into existence automatically when the work is created.
What is the term of a copyright?
1.
If published within the life time of the
author of a literary work, the term is for the life time of the author plus 60
years.
2.
For cinematographic films, records,
photographs, posthumous publication, anonymous publication, works of government
and international agencies, the term is 60 years from the beginning, of the
calendar year following the year in which the work was published.
3.
For broadcasting, the term is 25 years from
the beginning of the calendar year following the year, in which the broadcast
was made.
Can a claim to Copyright be registered?
Yes, in India a claim to copyright can be registered with filing an application to the registrar of copyright along with prescribed fees.
Yes, in India a claim to copyright can be registered with filing an application to the registrar of copyright along with prescribed fees.
Who owns Copyright in a work?
In India, the first owner of copyright in a work is the author. If the work is done in course of employment then employee is the first owner unless there is an agreement to the contrary. Where the work includes material from different owners, or for example is a translation of an original work, several owners may each have copyright in the final work.
In India, the first owner of copyright in a work is the author. If the work is done in course of employment then employee is the first owner unless there is an agreement to the contrary. Where the work includes material from different owners, or for example is a translation of an original work, several owners may each have copyright in the final work.
What notice needs to be put on a work to
Seek copyright protection?
When a work is published by authority of the copyright owner, a notice of, copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works to which India is a signatory use of copyright notice is optional. It is however, a good idea to incorporate a copyright notice.
When a work is published by authority of the copyright owner, a notice of, copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works to which India is a signatory use of copyright notice is optional. It is however, a good idea to incorporate a copyright notice.
What constitutes infringement of copyright?
Copyright in work is considered to be infringed in the following circumstances- A. When any person without a license granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright Act - - does anything, the exclusive right to do which is, by Copyright Act, conferred upon the owner of copyright, or - permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the copyright in the work. B. When any person - - makes for sale or hire, or sells or lets for hire, or by way of trade displays or - offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or - by way of trade exhibits in public, any infringing copies of the work. It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.
Copyright in work is considered to be infringed in the following circumstances- A. When any person without a license granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright Act - - does anything, the exclusive right to do which is, by Copyright Act, conferred upon the owner of copyright, or - permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the copyright in the work. B. When any person - - makes for sale or hire, or sells or lets for hire, or by way of trade displays or - offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or - by way of trade exhibits in public, any infringing copies of the work. It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.
How do I stop infringement of my Copyright?
Unlike some other intellectual property rights, copyright is merely a right to prevent unauthorized copying of an original work. The burden of proof in litigation is on the copyright owner to show that copyright exists in the work in question and that the alleged infringer (directly or indirectly) copied the work. If this chain of copying cannot be shown or does not exist, then there is no infringement. If there has been copyright infringement, then court action may be necessary to stop it continuing, and you may be able to claim financial compensation for any acts of infringement.
Unlike some other intellectual property rights, copyright is merely a right to prevent unauthorized copying of an original work. The burden of proof in litigation is on the copyright owner to show that copyright exists in the work in question and that the alleged infringer (directly or indirectly) copied the work. If this chain of copying cannot be shown or does not exist, then there is no infringement. If there has been copyright infringement, then court action may be necessary to stop it continuing, and you may be able to claim financial compensation for any acts of infringement.
What is a copyright notice and how is the
same displayed?
Copyright notice consists of the following: - The symbol c (letter c in a circle) or the word copyright The year of first publication, and - The copyright owners name. An example of notice: © 1999 indlaw. The copyright notice should be placed on copies in such a way as to give reasonable notice of the claimant of copyright.
Copyright notice consists of the following: - The symbol c (letter c in a circle) or the word copyright The year of first publication, and - The copyright owners name. An example of notice: © 1999 indlaw. The copyright notice should be placed on copies in such a way as to give reasonable notice of the claimant of copyright.
What is the mode of assignment of
copyright?
Assignment of copyright is not valid till it is in writing, signed by the assignee or by his authorized agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment deed must also specify the royalty payable, if any. There is no mandatory provision to register a deed of assignment of copyright. However, these details need to be recorded while registering copyright at serial 11 of Statement of Particulars.
Assignment of copyright is not valid till it is in writing, signed by the assignee or by his authorized agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment deed must also specify the royalty payable, if any. There is no mandatory provision to register a deed of assignment of copyright. However, these details need to be recorded while registering copyright at serial 11 of Statement of Particulars.
What remedies exist for copyright
infringement?
Courts are empowered to grant the following relief in case of infringement of copyright: - Temporary and permanent injunctions - Impounding and destruction of all infringing copies - Actual monetary damages plus the infringer’s profits - Statutory damages - Court costs and reasonable attorneys’ fees. The Court trying any offence, under Section 66 of the Copyright Act may, whether the alleged offender is convicted or not, order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies be delivered up to the owner of copyright. In addition to civil remedy, the Copyright Act enables the owner of a copyright to take criminal proceedings against the infringer. Knowledge/mensrea of the infringer to commit the infringement should necessarily be proved for this purpose. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum period of three years and a fine of Rs 50,000 to Rs 2 lakhs.
Courts are empowered to grant the following relief in case of infringement of copyright: - Temporary and permanent injunctions - Impounding and destruction of all infringing copies - Actual monetary damages plus the infringer’s profits - Statutory damages - Court costs and reasonable attorneys’ fees. The Court trying any offence, under Section 66 of the Copyright Act may, whether the alleged offender is convicted or not, order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies be delivered up to the owner of copyright. In addition to civil remedy, the Copyright Act enables the owner of a copyright to take criminal proceedings against the infringer. Knowledge/mensrea of the infringer to commit the infringement should necessarily be proved for this purpose. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum period of three years and a fine of Rs 50,000 to Rs 2 lakhs.
What are the powers of copyright law
enforcement authorities?
For effective implementation of Copyright Act, the response of enforcement authorities to cases of infringement needs to be swift. Under Section 64 of the Copyright Act, 1957, any police officer, not below the rank of a sub - inspector, may if he is satisfied that an offence in respect 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 produce them before a magistrate as soon as practicable.
For effective implementation of Copyright Act, the response of enforcement authorities to cases of infringement needs to be swift. Under Section 64 of the Copyright Act, 1957, any police officer, not below the rank of a sub - inspector, may if he is satisfied that an offence in respect 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 produce them before a magistrate as soon as practicable.
Is it compulsory for a work to be published
to receive copyright protection? Would I have to register my work with
Copyright Office to get copyright protection?
Copyright applies to both published and unpublished works. Further, it is not necessary under the Indian Copyright Act to register with the Copyright Office to get copyright protection. Registration of the work is however a highly recommended because such registration is helpful in an infringement suit. As per the Copyright Act, the Register of copyrights (where the details of the work are entered on registration) is prima facie evidence of the particulars entered therein. The documents purporting to be copies of any entries therein, or extracts from the Register which are certified by the Registrar of copyrights and sealed with the seal of the Copyright Office, are admissible as evidence in all courts without proof or production of the original.
Copyright applies to both published and unpublished works. Further, it is not necessary under the Indian Copyright Act to register with the Copyright Office to get copyright protection. Registration of the work is however a highly recommended because such registration is helpful in an infringement suit. As per the Copyright Act, the Register of copyrights (where the details of the work are entered on registration) is prima facie evidence of the particulars entered therein. The documents purporting to be copies of any entries therein, or extracts from the Register which are certified by the Registrar of copyrights and sealed with the seal of the Copyright Office, are admissible as evidence in all courts without proof or production of the original.
What is the relevance of copyright in electronics and information technology (including software)?
Ans. Copyright in the area of electronics and Information Technology is the exclusive right given by law to creators of computer programs, software packages, multi-media compact discs titles, musical records, electronic publishing items, gramophone records and cassette records, cinematographic films etc. conferring the rights of ownership and helping the owner to claim their authorized legal protection in order to prevent unlawful reproduction or use of such works. The right covers owner's authority to allow copying of his work, using it for multiple purposes, issuing copies to public including on Internet, performing it in public, broadcasting it on radio and television including cable TV or translating it in different languages and dialects etc.
Why is such protection given by law and what are the conditions thereof?
Ans. The protection to the creator who may be individual or an organization is given to encourage him to continue creating and be rewarded by relevant portion of profit accrued from such a creative activity. The conditions for protection are that the work (s) may be original and not be copied from elsewhere. Such a work may therefore be result of independent effort, intuition, ingenuity of person (s) and need not possess aesthetic values. Thus catalogues and engineering drawing also qualify for copyright protection.
As a matter of fact it is not necessary to get the matter registered with the copyright authorities as the rights come into existence the moment the work has been created/fixed as an 'expression' and labelled in such a way that use/ application of the work itself generates proof about who is its owner.
However, to enforce copyrights with the support of designated Government office (Registrar of Copyrights), it is advisable to get the work protected under Copyright Act and put a copyright notice on the work to help users pay for copying/use, as it is a general practice in the copyright based industries. Copyright law gives the right to owner(s) to have right to license copying of his work against a royalty payment/and or lumpsum payment granting any applicant 'licence of use' on fixed terms and conditions.
Who is the owner of subject matter?
Ans. In case the work has been created under duties of an employee in an organization, the right will belong to the employer. However, if the work has been created totally from the expenses, facilities and time of an employee beyond his duty hours and duty charter, this may belong to employee. In case of sound recordings, the 'producer' at whose instance the film and recording has been made is the first owner.
What are the ways somebody may copy the work without violating Copyright?
Ans. The Copyright Law gives the right to copy a work for a limited purpose or fair use without payment, in case the user recognizes the owner in writing for such a 'fair use'. The work can also be copied by teachers to propagate the work which may result into its enhanced uses by the masses and resulting dividends to the author (s). The theme of the Copyright Act is to ensure an overall atmosphere in which the users are able to utilize the creativity legally and also reward the creator gainfully to keep the spirit of creativity always high.
What is the duration of the copyright and what is the jurisdiction for the same?
Ans. The duration of the copyright is lifetime of the last surviving author/ creator and 60 years after his death. For films and sound recording it is 60 years from the date of the first publication whereas for broadcasting, it is 25 years from the date when the program was first broadcasted. India being signatory to the Berne Convention for the protection of literary and artistic work and also being member of the Universal Copyright Convention, any work created by Indian national/person or residing in a member country is automatically protected in other member countries. Similarly the works of these countries are protected in India as per international copyright order 1991. A copy of this is reproduced in Annexure II of this manual.
Jurisdiction:The owner of the copyright has also right to approach the civil court under CPC prevailing in the country either of his own home-town or in any city/town/place where unlawful copying of his work is taking place. To avoid infringement of his right, he may consult a legal expert and sue the person copying his work illegally and it is here that the copyright registration helps to provide a concrete evidence in the court of law to facilitate the owner stop the unlawful infringement by others, pay damages and even earnings made illegally from the work.
Where is the Copyright Office situated in India ?
Ans. The office of the Registrar of the Copyrights is housed at B-2/W-3 Curzon Road Barracks, K.G.Marg, New Delhi-110 001. There are no branch offices of the Registrar of Copyrights.
Is there a possibility of divulging the trade secrets through deposit of source code?
Ans. Although the Copyright Office has procedures designed to protect "trade secrets" but once the copyright is registered, the work is open to public inspection. For this reason, it is advisable, only to file a small but main part of the total creativity called "golden nugget" of the computer program rather than the full program itself. It is important however to know that the part of the computer program which is not being filed may be kept as the trade secret of the owner and can be subject matter of a protection under "Law of Contracts" against any person who wrongfully utilizes the said program.
In some of the programs, the screens could be the most commercially significant aspect, Is it necessary to register the program screens separately from the underlying code?
Ans. Generally, all copyrightable expression embodied in a computer program, including screen displays, are protectable. However, unlike a computer program which is a literary work, screen displays are artistic works and cannot therefore be registered in the same application as that covering the computer program. A separate application giving graphic representations of all copyrightable elements of the screen display is necessary.
Is it mandatory to put on computer program copies the copyright notice for its protection?
Ans. When a work is published by authority of the copyright owner, a notice of copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works to which India is a signatory, use of copyright notice is optional. It is, however, a good idea to incorporate a copyright notice.
Is Copyright the only way to protect software?
Ans. Indian Copyright Act, 1957 was amended in 1984 for the first time to define that computer software programs will also be covered under it in the category of "literary works". With amendments later on and particularly in 1994, the Act got teeth for protection of computer software programs. However, increasing stake in software and the extraordinary speed and the range of current development in electronics & information technology are producing their own upsurge in claims to intellectual property and manner in which these are to be protected.
Rapid technology changes associated with new avenues for business are making the adequacy of existing IPR protection instrument a subject of continuous debate. With overlap and merger of technologies, in some cases, the distinction between hardware (patentable items) and software (copyrightable items) is generally becoming blurred. USA which has been the major player in software development, over the years, has been using copyrights, trade secrets/ Law of confidence with respect to source code, Layout Design of Integrated Circuits and patents in various combinations to protect their software inventions. In the recent past, there has been an exponential rise in the number of patents being awarded for software in the USA . As most of the software development is innovative rather than inventive, it is prima-facie not patentable. However, software could be indirectly patented by patenting the products which contain software and meet the touchstones for grant of a patent " New/novel, nonobvious/having inventive step and having potential for industrial application.
However, patentability of computer programs requires a specific technical application in European Patent Convention (EPC). Its article 52(2)(c) excludes "program for computers as such" as patentable inventions. If a computer program brings about, or is capable of bringing about, a technical effect which goes beyond the "normal" physical interactions between the program (software) and the computer (hardware) on which it is run, is patentable under the Technical Board of EPC guidelines.
In Japan a software invention may be granted patent in case it is a highly advanced creation of technical ideas by which a law of nature is utilized. They have specific guidelines of 1997 under which process or product - both types of patents, may be granted for software implemented inventions.
As regards India , S/W is generally protected using copyrights and trade secrets using, law of contracts, by way of licensing etc. Indian Patents Act 1970 has undergone recent amendments and may likely provide provision for patenting of Computer Software based inventions in specific cases.
India has also enacted "Semiconductor Layout Design of IC's Act 2000" and this may also utilised gainfully.
What is the Berne Convention?
Ans. The Berne Union for the Protection of Literary and Artistic Property (the "Berne Convention") is a multinational treaty created in 1971 that sets forth several basic copyright principles to which each signatory country must adhere in its national copyright laws, as follows: a) Nationality. Each country must offer at least the same level of copyright protection to works originating in another Berne Convention country as the first country offers to works of its won citizens. b) Formalities. Copyright protection must be automatic and must not depend on registration of the copyright or inclusion of a copyright notice or symbol. c) Duration. Copyright must be effective for a minimum term of the author's life plus fifty years. d) Moral rights. Certain defined rights of attribution and integrity must be protected under the signatory's national law. e) Independence . Copyright protection of origin. F) Exclusive rights. The copyright holder must have exclusive rights of reproduction, translation, adaptation, and public performance of the copyrighted work.
Whether any software registered in a Member Country is also protected in other countries?
Ans. India is a member of Berne Convention. Ministry of HRD (Department of Education),Govt. of India, has passed an International Copyright Order dated 30 th September,1991,according to which India provides 'National Status Treatment' to the authors of copyrighted works in Member Countries on same footing as to its own nationals. A copy of this order is reproduced in Annexure II.
Similar orders have been issued by these member countries to provide notional status treatment to the Indian authors in their territories.
Which tangible media can be used to fix a copyrightable expression?
Ans. The number of eligible media is rapidly increasing. It includes any means by which expression of ideas can be recorded. Paper is the most obvious, along with canvas for a painting, an emulsion for a photograph, cassette tape for both the words and the music to a song, tape, CD or DVD a diskette for an interactive video game/cinema film, a LAN network server or a hard disk drive or a CD for software or any electronic version of a report.
What is the proper form for a copyright notice?
Ans. Its form is the c-in-a-circle or © symbol, or the word "Copyright" followed by the year the work was published, followed by the name of the owner of the copyright. When it is considered desirable to make it clear to users that the author takes the copyright protections especially seriously, a further statement such as "All rights of reproduction and distribution reserved" or a longer and more detailed prohibition against infringement can be warned. (A name and address to be used in requests for permission to reproduce the protected material can be added to such a statement.)
What is the 'hotline' of NASSCOM to handle software piracy in India ?
Ans. 011-6114971
With growing use of VHDL, can the software design products created using the same be registered under Copyright Act?
Ans. Very High-speed IC Hardware Description Language (VHDL) and Verilog are nowadays being used popularly to create certain hardware (like FPGAs & ASICs). The creativity in this case as a first design step is only a computer program/software. This can very well be protected by obtaining the software copyright registration from Registrar of Copyrights, New Delhi .
What are typical situation where 'Semiconductor Layout Design of IC's Act 2000' being administered by Ministry of C & IT will be called for?
Ans. This will be called for protection of the chip-masks needed by the Semiconductor integrated circuit fabrication plants.
What precautions can we take to avoid indulging in Copyright violation particularly as developer, owner/producer, distributor or user of a computer software?
Ans. The following guidelines have been arrived at by IPR Cell, DIT in above regards:
- Every R&D institution, the developer and production unit, job contractors, authors etc. engaged in area of computer software/ other digital works should have a prior clear cut understanding and a proper documentation of policy, procedures and administrative mechanism concerned to them, called an "IPR system", for protection of the intellectual property in form of created software, audio, video & multimedia CDs/DVDs etc. so as to be able to claim for their genuine share in the ownership of the intellectual property generated by them whether in full or in part.As per existing policy, procedures and laws, in case a software developing organization/ individual has not enforced timely a proper legal provision in this regard, all the intellectual property generated though the R&D projects, contracts or other assignments, will automatically belong to the funding organization.
- With advancement in the software engineering and recognition of a wide market, a large number of Common User Software Solutions (CUSSOL) are available for common types of problem solving. These common packages developed are versatile and provide skeleton generic solutions of the problem in typical areas like office automation, engineering design and drafting, newspaper and magazine publications, advertisements etc. Sufficient documentations is also available in respect of these in open market. These may be used with due regard to the interest of their owners if the time constraints to implement a computerized solution to information needs of an organization are critical and the user insists for them.The time and cost invested in the development and implementation of a software product depend on the type of software, extent of readymade modules created earlier and utilized, the features of base software and tools utilized etc. Due recognition (both technical as well as financial) so as to conform to their IPRs has to be given both in respect of non redistributables as well as redistributables, other terms and conditions mentioned in the Actual User License Agreement/ End User License Agreement (AULA/EULA) of the owners of these resource S/w products.
- The tailor-made solutions of solving the information problems using open frame tools like ANSI compilers of 3 rd generation computer languages and BERKELY Unix/Linux operating systems etc. though may be time consuming, however offer a free route having no copyright obligation to other parties. Creator of software solution using these and other "copyright software" may claim total IPR ownership on such a final product.
- In case a software solution is developed using S/W products owned by s/w tools and database manufacturers referred in para (ii) earlier, as per existing copyright laws known as "International Copyright Order", Ministry of HRD, Govt. of India, National status treatment is required to be given to the owners of above base packages and tools if they belong to any country listed for the purpose in this order.
- If the software program generated itself uses somebody's intellectual properly as a base product, right at the time of purchase/ obtaining license of base product, effort should be to use only such packages who generate executable run time files running independent of base software product. With this, a suitable protection mechanism may be included by the buyer/ licensee right in his/her purchase order to make the owner of such a package/base product fully aware and agreeable that the base product after purchase/ obtaining license thereof will be used by the buyer/ licensee to generate software programs which will be commercially exploited in the market.In similar other cases where the software developed needs the presence of a base software tool necessary for working of the computerized solution, as per existing IPR laws, the owner of these base package will have to be paid license fee in respect of each copy of their software utilized. To play safe, this responsibility should be taken by S/W developer who is licensing his code running on somebody else's such a base software product.
- While obtaining the copyright protection of a computer software or database, it should be only for the portions which have been really created by team of authors and the owners. All efforts should be made to exclude any part which is the property of some specific unit/organization unless it is so much popular module that it has become a common item available from various public sources or if it is not possible to identify its real owner or the owner has not objected to use of his property by many even in repeated cases or it is publicly declared on Internet as a Copy-Left item.In term of personware and their time invested, two competing software solutions are expected to consume these inputs of comparative values. This may even be confirmed by third party experts in the particular area of software engineering, using COCOMO Model and Functional Point Approach (FP A) Techniques etc.After obtaining copyright, the programs should be so packaged with proper disclaimers that the moment it is loaded on the computer's main memory, following Copyright Notice appears on the screen to inform the user conform to the IPR Laws.©<popular name of s/w with version no.><year><owner's name>
- The distributors of the software programs and packages should ensure through legal documents that they are distributing a S/W package from a source who has got a copyright authorisation of that package. This should be also confirmed by copyright notice displayed on loading of the software on the computer stating the owner's details, year etc. of registration as enumerated above. Distributors of S/W packages after having permission to copy from the owners may copy only upto specified number of iterations allowed by the owner. 'Granting License for number of copies of the S/W package more than above specified number is S/W piracy. To detect this the owners use their market intelligence and may sue the pirate distributors in the court. Such distributors may be punished by court to compensate all losses to the owner including his expenses to detect the piracy, fees for court proceedings etc. apart from minimum equal amount of penalty and also 6 months to 2 years term for imprisonment etc.
- Sometimes, some established S/W authors become attractive to many competing S/W development units. If he/she moves from unit A to unit B and unit A files a court case of copyright infringement on unit B referring to movement of his ex-employee, the onus of burden of proof may now shift to unit B. Hence unit B should take all measures to ensure that IPR of unit A should not be infringed on account of movement of the employees.
- Users of computer software are also expected to use only licensed software. For this, they should obtain license only from real owner of the software directly or through his authorized distributor but not from a fake distributor providing him a copy of software for which he is either not authorized by the owner or is giving a copy in excess to number of copies allowed to him by the owner. To know who is real owner of a popular software product, one may refer to various encyclopaedia of software products published by third parties like IEEE or regular popular magazines of international fame or internet. Whether distributor is authorized by the owner can be verified from the distributor who possesses an authority letter to that effect form the owner.
What is the 1 st Amendment of 1999 to our Copyrights Act?
Ans. The Copyright Act Amendment , 1999 brought forth a few changes in the "fair use" provision pertaining to computer software. In this regard, it added three new provisions in the Act in Section 52(1) (aa). The new provisions read:
"(ab) doing of any act necessary to obtain information essential for operating interoperability of an independently created computer program with other programs by a lawful possessor of a computer program provided that such information is not readily available;
(ac) observation, study or test of functioning of the computer program in order to determine ideas and principles which underline any elements of the program while performing such acts necessary for the functions for which the computer program was supplied;
(ad) making of copies or adaptation of the computer program from a legally obtained copy for non-commercial personal use".
How
is a copyright different from a patent or a trademark?
Copyright
protects original works of authorship, while a patent protects inventions or
discoveries. Ideas and discoveries are not protected by the copyright law,
although the way in which they are expressed may be. A trademark protects
words, phrases, symbols, or designs identifying the source of the goods or
services of one party and distinguishing them from those of others.
Your
work is under copyright protection the moment it is created and fixed in a
tangible form that it is perceptible either directly or with the aid of a
machine or device.
Do I have to register with your office to be protected?
Do I have to register with your office to be protected?
No.
In general, registration is voluntary. Copyright exists from the moment the
work is created. You will have to register, however, if you wish to bring a
lawsuit for infringement of a U.S. work. See Circular 1, Copyright
Basics, section “Copyright Registration.”
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.
I’ve heard about a “poor man’s copyright.” What is it?
Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.
I’ve heard about a “poor man’s copyright.” What is it?
The
practice of sending a copy of your own work to yourself is sometimes called a
“poor man’s copyright.” There is no provision in the copyright law regarding
any such type of protection, and it is not a substitute for registration.
The
United States has copyright relations with most countries throughout the world,
and as a result of these agreements, we honor each other's citizens'
copyrights. However, the United States does not have such copyright
relationships with every country. For a listing of countries and the nature of
their copyright relations with the United States, see Circular 38a, International
Copyright Relations of the United States.
.
Posted in: COPYRIGHTS
