What Is Copyright?Copyright is a form of intellectual property protectiongranted under Indian law to the creators of originalworks of authorship such as literary works (includingcomputer programs, tables and compilations includingcomputer databases which may be expressed inwords, codes, schemes or in any other form, includinga machine readable medium), dramatic, musical andartistic works, cinematographic films and soundrecordings.recordings.
Copyright law protects expressions of ideas ratherthan the ideas themselves. Under section 13 of the themselves. 1957,Copyright Act 1957, copyright protection is conferredon literary works, dramatic works, musical works,artistic works, cinematograph films and soundrecording.recording. For example, books, computer programsare protected under the Act as literary works. works.Copyright refers to a bundle of exclusive rights vestedin the owner of copyright by virtue of Section 14 of theAct.Act. These rights can be exercised only by the ownerof copyright or by any other person who is dulylicensed in this regard by the owner of copyright. copyright.These rights include the right of adaptation, right ofreproduction, right of publication, right to make etc.translations, communication to public etc.
History of Indian copyright LawThe Indian Copyright Act, 1957 governs the system ofcopyrights in India. Copyright Law in the country wasgoverned by the Copyright Act of 1914, was essentiallythe extension of the British Copyright Act of 1911 toIndia and borrowed extensively from the new CopyrightAct of the United Kingdom of 1956. Now IndianCopyright is governed by the Indian Copyright Act,1957.The Indian Copyright Act today is compliant with mostinternational conventions and treaties in the field ofcopyrights. India is a member of the Berne Conventionof 1886 (as modified at Paris in 1971),
History of Indian copyright LawThe Universal Copyright Convention of 1951 andthe agreement on Trade Related Aspects ofIntellectual Property Rights (TRIPS).Though India is not a member of the RomeConvention of 1961, WIPO Copyrights Treaty(WCT) and the WIPO Performances andPhonograms Treaty (WPPT),the Copyright Act iscompliant with it.The Copyright Act, 1957 is also in conformitywith the provisions of the Rome Convention of1961 (Though India is not a member of the RomeConvention).
Copyright Act 1957 – Main FeaturesPerforming rights societies’ rights (forinstance, music royalties)Definition of categories in which copyrightactually subsistsInternational copyrightDefinition of infringement
Copyright (Amendment) Act 1983 and 19841983 Act Berne and Universal Copyright Conventions grant of compulsory licenses by developing countries, publication by deceased authors 1984 Act: discouraging and preventing widespread video piracy
Copyright (Amendment) Act 1992 & 1994 Defined ambit of the Copyright Board’s powers Introducing special rights for performers Assignment and licenses of copyright Rights of copyright owners. The June 1994 amendments to the Copyright Act introduced a landmark in the Indias copyright arena. For the first time in India, the Copyright Law clearly explained: • The rights of a copyright holder • Position on rentals of software • The rights of the user to make backup copies
REQUIREMENTS OF COPYRIGHT PROTECTION“Originality” – itshould originatefrom the author –product ofindependentcreation“Fixation” – shouldbe expressed in amaterial form
WHO OWNS THE COPYRIGHT IN A WORK?The CreatorExceptions:Exceptions:– Written agreement to the contrary– Employee– Specially commissioned work– Made for valuable consideration
Literary WorksNovels, poems, short storiesComputer programmes, tables, computerdatabasesSong lyrics Books on any subject
Computer SoftwareWhich Includes Programme Manuals Punched Cards Magnetic Tapes/Discs Computer printouts Computer programmes
Who is an authorAn author is aIn the case of a literary or dramatic work the author,i.e., the person who creates the workIn 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 personwho causes the work to be created.Indian work "Indian work" means a literary, dramaticor musical work, The author of which is a citizen ofIndia; or Which is first published in India; or The authorof which, in the case of an unpublished work is, at thetime of the making of the work, a citizen of India.
Descriptions of Copyright workArtistic work - An artistic work means – 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.Musical work – "Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy copyright protection.
Descriptions of Copyright workSound recording- "Sound recording" means a recording-recording of sounds from which sounds may beproduced regardless of the medium on which suchrecording is made or the method by which the soundsare produced. A phonogram and a CD-ROM are soundrecordings.Cinematograph film- "Cinematograph film" means any film-work of visual recording on any medium producedthrough a process from which a moving image may beproduced by any means and includes a soundrecording accompanying such visual recording and"cinematograph" shall be construed as including anywork produced by any process analogous tocinematography including video films.
Descriptions of Copyright workGovernment work - "Government work" means a workwhich is made or published by or under the directionor control of – The government or any department of the government – Any legislature in India, and – Any court, tribunal or other judicial authority in India.
Duration of copyrightLiterary sixty years from thedramatic, beginning of the calendarmusical and year next following theartistic works (other year in which the authorthan a photograph) dies.Anonymous andpseudonymous worksPosthumous work sixty years from thePhotographsCinematograph films beginning of the calendarSound records year next following theGovernment workPublic undertakings year in which the work iswork first published.Internationalorganisations work
COPYRIGHT – A BUNDLE OF RIGHTSEconomic Rights Moral rights – Reproduce or make copies – Right of copies- – Issue copies- sell, acknowledgement distribute, etc . – Right to object against – Display to public mutilation /distortion of work – Adapt – Assign/License
Assignment of copyright section 18, 19 and 19AThe author of a work is the first owner of thecopyright( Section 17).However, for works made in the course of anauthors employment under a contract of service,the employer is the first owner of the copyright. Theowner of the copyright in an existing work or theprospective owner of the copyright in a future workmay assign to any person the copyright eitherwholly or partially and either generally or subject tolimitations and either for the whole term of thecopyright or any part thereof: Provided that in thecase of the assignment of copyright in any futurework, the assignment shall take effect only whenthe work comes into existence.
Assignment of copyright(Section 18) Section 19 lays down the modes ofassignment- assignment can only be in writing andmust specify the work, the period of assignment andthe territory. Section 19(5) provides that if period ofassignment is not specified it shall be deemed to be 5years and section 19(6) provides that if the territorialextent of assignment is not specified it shall bepresumed to extend within India. In a recentjudgement, a division bench of the Delhi High Courtin Pine Labs Private Limited vs Gemalto TerminalsIndia Limited the Court has held that in case theduration of assignment is not specified, the durationshall be deemed to be five years and after five yearsthe copyright shall revert to the author.
U/S 19. Mode of assignment–(1) No assignment of the copyright in any work shall bevalid unless it is in writing signed by the assignor or hisduly authorised agent.(2)The assignment of copyright in work shall identifysuch work, and shall specify the rights assigned and theduration and territorial extent of such assignment.(3) The assignment of copyright in any work shall alsospecify the amount of royalty payable, if any,(4) Where the assignee does not exercise the rightsassigned to him under any of the other sub sections ofthis section within a period of one year from the date ofassignment, the assignment in respect of such rightsshall be deemed to have lapsed after the expiry of thesaid period unless otherwise specified in theassignment.
U/S 19. Mode of assignment(5) If the period of assignment is not stated, itshall be deemed to be five years from the date ofassignment.(6) If the territorial extent of assignment of therights is not specified, it shall be presumed toextend within India.
Assignment of copyrightIn this case, Pine Labs had written some software forGemalto under a Master Service Agreement (MSA).Though in the MSA Pine Labs had assigned thecopyright in the works to Gemalto, the period ofassignment was not specified. The Court held thatthough Gemalto may have paid for the software, PineLabs, being the author was the first owner of thecopyright and after five years, the copyright revertedto Pine Labs. It made no difference whether the MSAwas treated as an assignment or an agreement toassign. Full text of the judgement can be viewed at PineLabs Vs Gemalto and others.Where assignee fails to exercise the rights assigned tohim within a period of one year from the date ofassignment, the assignment in respect of such rightshall be deemed to have been elapsed, unlessotherwise provided in the assignment.
Difference between assignment of copyright and it’s licensing An assignment carries with it the whole interest in the thing assigned, including the right to reassign, while the license is personal and not assignable without the grantors consent. An exclusive license is a leave to do a thing and a contract not to give leave to anybody else to do the same thing. The license does not confer any property, in the thing licensed to the licensee rather it only makes as action lawful which otherwise would have been unlawful giving rise to a cause of action in the form of infringement of copyright.3
Difference between assignmentof copyright and it’s licensingA licensee has no title to sue in his own name but anassignee is considered to be the owner and can sue forthe infringement without any prior consent of theassignor or even in the absence of a specific clause inthe contract in that regard.Licensing usually involves some of the rights and notthe whole. An author of a novel may license the right toreproduce the work in hard back to one person andpaper back to anathor, the serialization rightnewspaper or magazine, film and dramatization rightsto others and translation rights to yet anathor.
Broad casting and performers Rights Rights of Broadcasting Organisation and of Performers Broadcast reproduction right The broadcast reproduction right shall subsist until twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. Performer’s right The performers right shall subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made.
Can Idea be copyrightCopyright in form or expression, not in idea:“There is nothing in the notion of copyright toprevent a second person from producing anidentical result...” (Gregory Committee Report,1952, para 9)Copyright only in material form principle offixation
Moral Rights of an Author under the ActThe author of a work has the right to claim authorshipof the work and to restrain or claim damages inrespect of any distortion, mutilation, modification orother act in relation to the work, if such distortion,mutilation, modification or other act is prejudicial tohis honour or reputation. Moral rights are available tothe authors even after the economic rights areassigned. (section 57)Section 57 clearly overrides the terms of the contractof assignment of the copyright. The contract ofassignment would be read subject to the provisions ofsection 57 and the terms of contract cannot negatethe special rights and remedies guaranteed by section57.
The assignee of a copyright cannot claim any rights orimmunities based on the contract, which areinconsistent with the provisions of section 57.This section prohibits any distortion, mutilation orother modification of the author’s work. The words“other modification” are ejusdem generis with the word“distortion” and “mutilation”. The modification shouldnot be so serious that the modified form of the worklooks quite different work from the original.“Modification” in the sense of the perversion of theoriginal, will amount to distortion or mutilation.Under section 57 of the Act, the author of a work hasthe right to claim the authorship of the work. He alsohas a right to restrain the distortion or mutilation of hiswork or to claim damages for the distortion even afterassigning the copyright. The contract of assignmentwill require being consistent with section 57.
Re-Re-sale & relinquishment of copyrightThe first owner of the copyright and his legal heirs aregranted a right called resale share right in originalcopy. This right is exercisable even after theassignment of the work. This right is confined to certainworks only i.e., original copy of painting, sculpture, ordrawing or original manuscript of a literary or dramaticor musical work and is available only to the first ownerof right or his legal heirs.The author of a work may relinquish all or any of therights comprised in the copyright in the work by givingnotice in the prescribed from to the Registrar ofCopyrights and thereupon such rights shall, subject tothe following conditions, cease to exist from the date ofthe notice. On receipt of a notice, the Registrar ofCopyrights shall cause it to be published in the OfficialGazette and in such other manner as he may deem fit.
Assignment of Future RightsThe owner of the copyright in an existing work or theprospective owner of the copyright in a future workmay assign to any person the copyright, either whollyor partially and either generally or subject tolimitations and either for the whole term of thecopyright or any part thereof. However, in the case ofthe assignment of copyright in any future work, theassignment shall take effect only when the work comesinto existence. when new rights are granted by thelegislature on existing works due to the technologicaldevelopment, problem arises as to the ownership ofthe new rights, whether the assignor who assignedalready all the existing rights on the work or theassignee is the owner of the future rights.
Moral RightsIn Phoolan Devi v. Shekar Kapoor, (1995-PTC Del),Granting an injunction Vijendra, Jain J. held, that “thedefendant had no right to exhibit the film as producedviolating the privacy of plaintiff’s body and person. Thebalance of convenience is also in favour of restrainingthe defendants from exhibiting the film any further as itwould cause further injury to the plaintiff. No amount ofmoney can compensate the indignities, torture, andfeeling of guilt and shame which has been ascribed tothe plaintiff in the film. Therefore, the defendants wererefrained from exhibiting the film in its censoredversion till the final decision of the suit.”
Fair dealing RightsA fair dealing with a literary, dramatic, musical orartistic work (not being a computer programme) forthe purposes of for the purposeof 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-payingaudience, andthe making of sound recordings of literary, dramaticor musical works under certain conditions.