Rationale of copyright protection


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Reference source is "A HAND BOOK OF COPYRIGHT LAW"

There is an acute lack of awareness on various issues relating to copyright and related rights amongst stakeholders, enforcement agencies, professional users like the scientific and academic communities and members of the public. The questions put forth by the representatives of these sections of society vary from those relating to the very fundamentals of intellectual property rights to those which relate to practical applications.

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Rationale of copyright protection

  1. 1. By Pratibha Mishra
  2. 2.  Copyright is a right given by the law to creators ofliterary, dramatic, musical and artistic works and producersof cinematograph films and sound recordings. It is a bundle of rights including, inter alia, rights ofreproduction, communication to the public, adaptation andtranslation of the work.
  3. 3.  Copyright ensures certain minimum safeguards of therights of authors over their creations, thereby protectingand rewarding creativity. The protection provided by copyright to the efforts ofwriters, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph filmsand computer software, creates an atmosphere conduciveto creativity,
  4. 4.  Subject to certain conditions, a fair deal forresearch, study, criticism, review and news reporting, aswell as use of works in library and schools and in thelegislatures, is permitted without specific permission ofthe copyright owners.
  5. 5.  The Copyright Act, 1957 protects originalliterary, dramatic, musical and artistic works andcinematograph films and sound recordings fromunauthorized uses. Unlike the case with patents, copyrightprotects the expressions and not the ideas. There is nocopyright in an idea.
  6. 6. Copyright does not protect ideas or concepts.To get the protection of copyright a Work must be original.
  7. 7.  A work means any of the following, namely, aliterary, dramatic, musical or artistic work, acinematograph film, or a sound recording "Work of joint authorship" means a work produced by thecollaboration of two or more authors in which thecontribution of one author is not distinct from thecontribution of the other author or authors.
  8. 8.  Copyright subsists throughout India in the following classes ofworks: Original literary, dramatic, musical and artistic works; Cinematograph films; and Sound recordings.
  9. 9.  A painting, a sculpture, a drawing (including adiagram, map, chart or plan), an engraving or aphotograph, whether or not any such work possessesartistic quality; A work of architecture; and Any other work of artistic craftsmanship.
  10. 10.  "Musical work" means a work consisting of music andincludes any graphical notation of such work but does notinclude any words or any action intended to besung, spoken or performed with the music. A musical workneed not be written down to enjoy copyright protection.What is a musical work?
  11. 11.  "Sound recording" means a recording of sounds fromwhich sounds may be produced regardless of the mediumon which such recording is made or the method by whichthe sounds are produced. A phonogram and a CD-ROM aresound recordings.
  12. 12.  "Cinematograph film" means any work of visual recordingon any medium produced through a process from which amoving image may be produced by any means and includesa sound recording accompanying such visual recording and"cinematograph" shall be construed as including any workproduced by any process analogous to cinematographyincluding video films.
  13. 13.  "Government work" means a work which is made orpublished by or under the direction or control of the government or any department of the government any legislature in India, and any court, tribunal or other judicial authority in India.
  14. 14.  "Indian work" means a literary, dramatic or musical work, the author of which is a citizen of India; or which is first published in India; or the author of which, in the case of an unpublished work is, at thetime of the making of the work, a citizen of India.
  15. 15. Whose rights are protected by copyright?Copyright protects the rights of authors, i.e., creators ofintellectual property in the form of literary, musical, dramaticand artistic works and cinematograph films and soundrecordings.
  16. 16.  Ordinarily the author is the first owner of copyright in awork.
  17. 17.  In the case of a literary or dramatic work the author, i.e., the personwho 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 thework to be created.
  18. 18.  Yes. The owner of the copyright in an existing work or theprospective owner of the copyright in a future work mayassign to any person the copyright Mode of assigning copyright: It shall be in writing signedby the assignor or by his duly authorized agent.
  19. 19.  If the period of assignment is not stated: it shall bedeemed to be five years from the date of assignment. If the territorial extent of the assignment if notspecified in the assignment: it is presumed to extendwithin the whole of India. The author of a work may relinquish all or any of the rightscomprising the copyright in the work by giving notice in theprescribed form to the Registrar of Copyrights.
  20. 20. TheRightsvaryaccordingtotheclassofwork. To reproduce the work To issue copies of the work to the public To perform the work in public To communicate the work to the public. To make cinematograph film or sound recordingin respect of the work To make any translation of the work To make any adaptation of the work.
  21. 21. Adramaticwork,copyrightmeanstheexclusiveright To reproduce the work To issue copies of the work to the public To communicate the work to the public. To make cinematograph film or sound recordingin respect of the work To make any translation of the work To make any adaptation of the work.
  22. 22. Aartisticwork,copyrightmeanstheexclusiveright To reproduce the work To issue copies of the work to the public To communicate the work to the public. To make cinematograph film or sound recordingin respect of the work To make any translation of the work To make any adaptation of the work.
  23. 23. Amusicalwork,copyrightmeanstheexclusiveright To reproduce the work. To issue copies of the work to the public. To perform the work in public. To communicate the work to the public. To make cinematograph film or sound recordingin respect of the work. To make any translation of the work. To make any adaptation of the work.
  24. 24. Acinematographfilm,copyrightmeanstheexclusiveright To make a copy of the film including a photographof any image forming part thereof To sell or give on hire or offer for sale or hire acopy of the film To communicate the cinematograph film to thepublic.
  25. 25. Asoundrecording,copyrightmeanstheexclusiveright To make any other sound recording embodying it To sell or give on hire or offer for sale or hire acopy of the sound recording To communicate the sound recording to thepublic.
  26. 26.  The right of reproduction commonly means that no personshall make one or more copies of a work or of a substantialpart of it in any material form including sound and filmrecording without the permission of the copyright owner.
  27. 27.  Communication to the public means making any workavailable for being seen or heard or otherwise enjoyed bythe public directly or by any means of display or diffusion. It is not necessary that any member of the public actuallysees, hears or otherwise enjoys the work so madeavailable For example, a cable operator may transmit acinematograph film, which no member of the public maysee. Still it is a communication to the public.
  28. 28.  The Copyright Act defines the following acts as adaptations: Conversion of a dramatic work into a non dramatic work Conversion of a literary or artistic work into a dramatic work Re-arrangement of a literary or dramatic work Depiction in a comic form or through pictures of a literary ordramatic work Transcription of a musical work or any act involving re-arrangement or alteration of an existing work.
  29. 29.  Is it necessary to register a work to claim copyright?No. Acquisition of copyright is automatic and it does notrequire any formality.However, certificate of registration of copyright and theentries made therein serve as prima facie evidence in acourt of law with reference to dispute relating toownership of copyright.
  30. 30.  Copyright comes into existence as soon as a work iscreated and no formality is required to be completed foracquiring copyright. The Copyright Office has been set up to provideregistration facilities to all types of works and is headed bya Registrar of Copyrights and is located at B.2/W.3, C.R.Barracks, Kasturba Gandhi Marg, New Delhi- 110 003, Tel:338 4387
  31. 31.  Application for registration is to be made on Form IV ( IncludingStatement of Particulars and Statement of Further Particulars) asprescribed 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 feeprescribed in the second schedule to the Rules ; and The applications should be signed by the applicant or the advocate inwhose favor a Vakalatnama or Power of Attorney has been executed.The Power of Attorney signed by the party and accepted by theadvocate should also be enclosed.
  32. 32.  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 tobe sent along with the application for affixing the stamp of the CopyrightOffice in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same dulystamped will be returned, while the other will be retained, as far aspossible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from theunpublished work instead of the whole manuscript and ask for the return ofthe extracts after being stamped with the seal of the Copyright Office.
  33. 33.  Is copyright protected in perpetuity?No. It is protected for a limited period of time. What is the term of protection of copyright?The general rule is that copyright lasts for 60 years.In the case of original literary, dramatic, musical and artistic works the 60-yearperiod is counted from the year following the death of the author.In the case of cinematograph films, sound recordings, photographs, posthumouspublications, anonymous and pseudonymous publications, works of governmentand works of international organisations, the 60-year period is counted from thedate of publication.
  34. 34.  The government has set up a Copyright EnforcementAdvisory Council (CEAC). There are no special courts for copyright cases. Theregular courts try these cases. There is a Copyright Boardto adjudicate certain cases pertaining to copyright.
  35. 35.  hear appeals against the orders of the Registrar of Copyright; hear applications for rectification of entries in the Register of Copyrights; adjudicate upon disputes on assignment of copyright; grant compulsory license to publish or republish works (in certaincircumstances); grant compulsory license to produce and publish a translation of a literary ordramatic work in any language after a period of seven years from the firstpublication of the work; hear and decide disputes as to whether a work has been published or about thedate of publication or about the term of copyright of a work in another country; fix rates of royalties in respect of sound recordings under the cover-versionprovision; and fix the resale share right in original copies of a painting, a sculpture or a drawingand of original manuscripts of a literary or dramatic or musical work.
  36. 36.  summoning and enforcing the attendance of any personand examining him on oath; requiring the discovery and production of any document; receiving evidence on affidavit; issuing commissions for the examination of witnesses ordocuments; requisitioning any public record or copy thereof from anycourt or office; any other matters which may be prescribed.
  37. 37.  As per the Indian Copyright Act, a "Performer" includesanactor, singer, musician, dancer, acrobat, juggler, conjurer,snake charmer, a person delivering a lecture or any otherperson who makes a performance. "Performance" in relation to performer’s right, meansany visual or acoustic presentation made live by one ormore performers.
  38. 38.  To make a sound recording or visual recording of theperformance; To reproduce the sound recording or visual recording ofthe performance; To broadcast the performance; To communicate the performance to the public otherwisethan by broadcast. Performer’s rights subsist for 25 years.
  39. 39.  "Broadcast" means communication to the public: by any means of wireless diffusion, whether in any one or moreof the forms of signs, sounds or visual images; or by wire.
  40. 40.  The author of a work has the right to claim authorship ofthe work and to restrain or claim damages in respect ofany distortion, mutilation, modification or other acts inrelation to the said work which is done before theexpiration of the term of copyright. The moral rights are independent of the author’s copyrightand remains with him even after assignment of thecopyright.
  41. 41.  To re-broadcast the broadcast; To cause the broadcast to be heard or seen by the public on payment ofany charges; To make any sound recording or visual recording of the broadcast; To make any reproduction of such sound recording or visual recordingwhere such initial recording was done without license or, where it waslicensed, for any purpose not envisaged by such license; and To sell or hire to the public, or offer for such sale or hire, any soundrecording or visual recording of the broadcast. The term of protection for broadcaster’s rights is 25 years.
  42. 42.  Copyrights of works of the countries mentioned in theInternational Copyright Order are protected in India, as ifsuch works are Indian works. Copyright of nationals of countries who are members ofthe Berne Convention for the Protection of Literary andArtistic Works, Universal Copyright Convention and theTRIPS Agreement are protected in India through theInternational Copyright Order.
  43. 43.  To secure protection to Indian works in foreign countries, India hasbecome a member of the following international conventions oncopyright and neighboring (related) rights Berne Convention for the Protection of Literary and Artistic works. Universal Copyright Convention. Convention for the Protection of Producers of Phonograms againstUnauthorised Duplication of their Phonograms. Multilateral Convention for the Avoidance of Double Taxation of CopyrightRoyalties. Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
  44. 44.  Collective administration of copyright is a concept where managementand protection of copyright in works are undertook by a society ofowners of such works No owner of copyright in any work can keep track of all the usesothers make of his work. When he becomes a member of a nationalcopyright society, that society, is able to keep a better vigil over theuses made of that work throughout the country and collect dueroyalties from the users of those works. Because of the country’s membership in international conventions, thecopyright societies are able to have reciprocal agreements withsimilar societies in other countries for collecting royalties for the usesof Indian works in those countries.
  45. 45.  A copyright society is a registered collective administrationsociety. Such a society is formed by copyright owners. The minimum membership required for registration of asociety is seven. A copyright society can issue or grant licenses in respect ofany work in which copyright subsists or in respect of any otherright given by the Copyright Act.
  46. 46.  Issue licenses in respect of the rights administered by thesociety. Collect fees in pursuance of such licenses. Distribute such fees among owners of copyright aftermaking deductions for the administrative expenses.
  47. 47.  Society for Copyright Regulation of Indian Producers for Film andTelevision (SCRIPT) 135 Continental Building, Dr. A.B.Road, Worli, Mumbai 400 018, (for cinematograph and televisionfilms). The Indian Performing Right Society Limited (IPRS), 208, GoldenChambers, 2nd Floor, New Andheri Link Road, Andheri (W), Mumbai-400 058 (for musical works). Phonographic Performance Limited (PPL) Flame Proof EquipmentBuilding, B.39, Off New Link Road, Andheri (West), Mumbai 400 053
  48. 48.  Making infringing copies for sale or hire or selling or lettingthem for hire; Permitting any place for the performance of works in publicwhere such performance constitutes infringement ofcopyright; Distributing infringing copies for the purpose of trade or tosuch an extent so as to affect prejudicially the interest of theowner of copyright ; Public exhibition of infringing copies by way of trade; and Importation of infringing copies into India.
  49. 49.  A copyright owner can take legal action against any person whoinfringes the copyright in the work. The copyright owner is entitledto remedies by way of injunctions, damages and accounts. The District Court concerned has the jurisdiction in civil suitsregarding copyright infringement The minimum punishment for infringement of copyright isimprisonment for six months with the minimum fine of Rs.50,000/-. In the case of a second and subsequent conviction theminimum punishment is imprisonment for one year and fine of Rs.one lakh.