Copyright - Indian Perspective

Introduction:


"Pen is mightier than sword". This phrase refers to the potential of an author, who has infinite powers in his pen that can influence an individual, society, state and world at large. However, there is an acute lack of awareness on various issues relating to copyright and related rights amongst stakeholders, enforcement agencies, professionals like the authors of literary or artistic works, scientific or academic communities and members of the public.

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.


Copy Rights & Protection:

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

If copyright protection is applied rigidly, it can hamper progress of the society. However, copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests of the creators and of the community.

To strike an appropriate and viable balance between the rights of the copyright owners and the interests of the society as a whole, there are exceptions in the law. Many types of exploitation of work which are for social purposes such as education, religious ceremonies, and so on are exempted from the operation of the rights granted in the Act. Copyright in a work is considered as infringed only if a substantial part of it is used without authorization. What is ‘substantial’ varies from case to case. More often, it is a matter of quality rather than quantity. For example, if a lyricist copy a very catching phrase from another lyricist’s song, there is likely to be infringement even if that phrase is very short.


Use of copyright without authorisation:

In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are:

i) for the purpose of research or study,

ii) for criticism or review,

iii) for reporting current events,

iv) in connection with judicial or legislature proceedings,

v) performance by an amateur club or society if the performance is given to a non-paying audience, and

vi) the making of sound recordings of literary, dramatic or musical works under certain conditions.


Works & Copyright Act:

1. An artistic work means

i) 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;

ii) a work of architecture; and

iii) any other work of artistic craftsmanship.

2. 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.

3. Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.

4. Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.

5. Government work means a work which is made or published by or under the direction or control of

i) the government or any department of the government

ii) any legislature in India, and

iii) any court, tribunal or other judicial authority in India.

6. Indian work means a literary, dramatic or musical work,

i) the author of which is a citizen of India; or

ii) which is first published in India; or

iii) the author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India


Authorship:

Author means:

i) In the case of a literary or dramatic work the author, i.e., the person who creates the work.

ii) In the case of a musical work, the composer.

iii) In the case of a cinematograph film, the producer.

iv) In the case of a sound recording, the producer.

v) In the case of a photograph, the photographer.

vi) In the case of a computer generated work, the person who causes the work to be created.


Rights of authors:

The rights of the authors are purely dependent upon the nature of the work. As such the authors of different work are guaranteed with a different set of rights. Apart from this they do enjoy rights common to all of them. All these rights spring from the different provisions of the Act. These can be classified as follows:-

i) Economic Rights;

ii) Moral Right;

iii) Right to claim share in Re-sale price of a work;

iv) Right to resort to administrative remedies;

v) Right to claim the possession of the infringing material;

vi) Right to take civil and penal actions to infringements.


Term of the Protection:

Intellectual Property protection is not perpetual. The protection is granted for a limited period. It is dependent upon two factors:-

1. Whether it is created by an individual; or

2. by an institution or a legal person.

Work created by an individual is protected for the lifetime of the author and 60 years after his death. In all other cases it is protected only for 60 years from the date of publication.


Conditions to avail protection:

The copyright protection is not subject to any formalities like registration, deposit of a copy with the Registrar of Copyright etc. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. The minimum conditions are laid down to avail the protection are:-

i) It must be an original work.

ii) It must have been published in India.

iii) If published outside India or is an unpublished work, the protection is granted if the author is a citizen of this country.

Thus, the Act makes it clear that if the author is a citizen of the country his work is protected whether his work is published or not.


Guidelines for registration:

Both published and unpublished works can be registered. The facilities for registration of a work in the Register of Copyrights maintained in the Copyright Office of the Department of Education. The Copyright Office has been set up to provide registration facilities to all types of works and is headed by a Registrar of Copyrights.

i) Application for registration.

ii) Separate applications should be made for registration of each work;

iii) Each application should be accompanied by the requisite fee prescribed; and

iv) The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.


Foreign works or Indian Works in a Foreign Country:

Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.

Copyright as provided by the Indian Copyright Act is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a member of the following international conventions on copyright and neighbouring (related) rights:

i) Berne Convention for the Protection of Literary and Artistic works.

ii) Universal Copyright Convention.

iii) Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms.

iv) Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties.

v) Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.


Copyright Infringements:

The following are some of the commonly known acts involving infringement of copyright:

i) Making infringing copies for sale or hire or selling or letting them for hire;

ii) Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;

iii) Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;

iv) Public exhibition of infringing copies by way of trade; and

v) Importation of infringing copies into India.


Remedies:

Two kinds of remedies are available with the holder of the Copyrights:

Civil remedies: A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

Criminal remedies: Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act. The minimum punishment for infringement of copyright is punishable with imprisonment for a term of six months and a fine of fifty thousand rupees, but which may extend to three years and a fine of two lakh rupees in case of repeated offences.


Enforcement of law in case of Copyright Violations:

Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate.


Proposed amendments to bring the Indian Copyright Act in compliance with WCT (WIPO Copyright Treaty) and WPPT (WIPO Performances and Phonograms Treaty):

i) Proposed amendment ensures protection to the holders of the right against circumvention of effective technological measures applied for protection of his rights like breaking of passwords, etc. And an appropriate balance between the interests of the right holders on the one hand and of technology innovators, researchers and educational institutions on the other.


ii) The Performers’ Rights are proposed to enhance by a new section to include exclusive rights in compliance with WPPT.

iii) The Moral Rights of Performers are proposed to include in a new section.

iv) Amendments are introduced to protect the interests of researchers, students and educational institutions to make sure that technological measures do not lead to difficult situations, for further development of the technology. The proposed amendments address, the access to information in the digital context and the accountability of Internet service providers.

v) The copyright period for photographs is proposed to Lifetime of the photographer plus 60 years.


Proposed Amendments to the Copy Right Act, 1957 and Rights of the Authors:

i) Amendments are introduced to give copyright protection to authors of literary and musical works in cinematograph films, which were till now denied and wrongfully exploited, by the producers and music companies and the authors of the works, particularly songs included in the cinematograph film or sound recordings, receive royalty for the commercial exploitation of such work. Moreover, to introduce a system of statutory licensing to ensure that the public will get access to musical works through the radio and television networks and consecutively the owners of works are not subject to any disadvantages.

ii) It is proposed to make sure that the authors keep hold of their rights to receive royalties and the benefits enjoyed through the copyright societies.

iii) It is proposed to provide compulsory license through the Copyright Board to publish or communicate to the public such a work or translation, where the author is dead or unknown or cannot be traced or the owner of the copyright work in such a work cannot be found.