Copyright is a bundle of exclusive rights given by the law to the creators of original works. It is a form of intellectual property protection granted by law. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.
Copyright laws serve to create property rights for certain kinds of intellectual property, generally called works of authorship. Copyright laws protect the legal rights of the creator of an ‘original work’ by preventing others from reproducing the work in any other way.
The main goals of copyright are: -
Copyright provides a framework for relationships between the different players in the content industries, as well as for relationships between rights holders and the consumers of content. Copyright is a form of Intellectual Property, along with trademarks and patents in all countries, and other creations (such as trade secrets, database rights, rights of publicity and the like) that may vary from country to country.
Indian copyright law is at parity with the international standards as contained in TRIPS. The (Indian) Copyright Act, 1957, pursuant to the amendments in 1999, 2002, and 2012, fully reflects the Berne Convention for Protection of Literary and Artistic Works, 1886, and the Universal Copyrights Convention, to which India is a party. India is also a party to the Geneva Convention for the Protection of Rights of Producers of Phonograms and is an active member of the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
Several international treaties encourage reasonably coherent protection of copyright from country to country. They set minimum standards of protection which each signatory country then implements within the bounds of its own copyright law.
Berne convention was the first and oldest multilateral convention on copyright that was for the protection of literary and artistic work which was adopted in 1886.
Initially, 10 nations were part of this convention and today 152 nations out of 190 are part of it. This convention made a union for the protection of the rights of the authors in their literary and artistic work.
The Berne Convention provides that, at a minimum, copyright protection in all signatory countries should extend to “literary and artistic works”, including “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.”
The Berne Convention contributed some major concerns to the copyright laws: -
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention that deals with the protection of works and the rights of their authors in the digital environment. In addition to the rights recognized by the Berne Convention, they are granted certain economic rights. The Treaty also deals with two subject matters to be protected by copyright:
The treaty was signed in 1996 and also recognizes that the transmission of works over the Internet and similar networks is an exclusive right within the scope of copyright, originally held by the creator.
It categorizes as copyright infringement both: -
The Agreement on Trade Related Intellectual Property Rights (TRIPs) is comprehensive in giving cover to all areas of technology, property, patents, trademarks, copyrights and so on.
The TRIPs encourages upon the member country’s sovereign right to frame its own legislation on intellectual property matters. This clause has been included on account of persistent demand from developed and industrialized countries.
The TRIPs Agreement covers seven categories of intellectual property rights:
It was signed in 1996 and administered by the world trade organization. This agreement includes a number of provisions related to the enforcement of Intellectual Property rights. It says that national laws have to make the effective enforcement of Intellectual Property rights possible , and describes in detail how enforcement should be addressed.
Copyright law protects expressions of ideas rather than the ideas themselves. It protects original works of ownership. It gives an exclusive right to do or authorize others to do certain acts in relation to literary, dramatic, musical, and artistic works, cinematography, and sound recordings. Computer programs are also included in literary works. Authors of Computer programs, and broadcasting organizations are to be given the right to authorize or prohibit the commercial rental of their works to the public. These similar exclusive rights also apply to the films.
The Copyright Act, 1957, along with the Copyright Rules, 1958, is the governing law for copyright protection in India. After independence, the Indian Copyright Act was the first law which was enacted from the provisions of the Berne Convention.
The Indian Copyright Act, 1957 is enacted with the following two main objectives:
The main objective of the Copyright Act is to encourage authors, composers, artists, and designers to create original works by rewarding them with the exclusive right for a limited period (usually for the life of the originator plus 50 years) to exploit the work for monetary gain.
The economic exploitation is done by licensing such exclusive rights to the entrepreneurs like publishers, film producers and record manufacturers for monetary consideration. In reality, people who economically exploit the copyright are the greater beneficiaries of the copyright law than the creators of works of copyright. The publishers and authors of books are such examples.
The objective of copyright law is also, in essence, to protect the author or the creator of the original work from the unauthorized reproduction or exploitation of his/her materials. The right also extends to prevent others from exercising without authority any other form of right attached to copyright, for example, in the case of literary work, the right of translation, adaptation or abridgment.
In recent times, with the rapid advance of technology, copyright infringement in the form of ‘piracy’ has become a serious problem of an international character. This is because technological progress has made the reproduction of copyrighted material easy and cheap.
Accordingly, Indian copyright owners can protect their copyright in almost any country in the world. The appropriate actions taken under the Copyright Act 1957 can stop the infringement of copyright. Infringement of copyright is also an offense punishable with imprisonment and fine.
The Indian Copyright law was developed in 3 phases:
This act is amended 6 times till now to align with rapid changes in society and provisions of international treaties i.e. Berne Convention, UCC, TRIPs Agreement.
Modern copyright laws serve to protect a variety of intellectual property ranging from songs and jingles to computer software and proprietary databases. All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected to the following works:
Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c) provides secondary works.
Section 2(o) of the Copyright Act, 1957 provides an inclusive definition of word literary works according to which the literary work includes computer programming, tablets, and compilations including computer database. These cover published works including books, articles, journals, and periodicals, as well as manuscripts. Even adaptations, translations, and abridgements are taken as original works and are protected under copyright law. Section 13(a) classify literary works in the primary work.
Case: Zee Telefilms v. Sundial Communications
Facts: A had prepared concept notes for the purpose of television film which consists of characters, plots, notes and sketches etc.
Issues: Whether A is entitled to the copyright of those concept notes?
Held: Yes, since A invests labour and skill in preparing the concept paper. Such a person is entitled to copyright.
Case: Macmillan & Co. v. K.J Cooper
Facts: Plaintiff’s book consisted of selected passages from Plutarch’s life of Alexander the Great, joined together by a few words to give a different appearance. The book also contained an introduction and notes useful for education. A similar book was published by the defendants with notes. The original work contained 40,000 words while the defendants had copied 20,000 words and 7000 words in notes.
Issue: Whether the defendants work infringed the copyright in the plaintiff’s works?
Held: Defendants work infringed the copyright
Original Dramatic Works:
According to section 2(h) of the Copyright Act, 1957, the dramatic work includes any piece for recitation, choreographic work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other things fall within the general meaning of dramatic work, and may also be covered by the definition.
Case: Academy of General Education Manipal v. Malini Mallya
The court shows a clear difference between literary and dramatic work. The difference between the two rests on the fact that literary work allows itself to be read while a dramatic work “forms the text upon which the performance of the plays rests.” A dance performance will not be covered under copyright work but under dramatic work.
Case: Creation Records v. New Group Newspaper
Held: It was held that a photograph that involves no movement or action cannot be treated as dramatic work. Copyright of Dramatic work can in form of:
Adaption of Dramatic work:- Adaptation work means the modification of that work in some other form.
Original Musical Works:
According to section 2(p) of the Copyright Act, 1957, musical work means any work consisting of music and includes any graphical notion of such work, but does not include any words or any action intended to be sung, spoken or performed with the music. The words in a song and the music have separate rights and the rights cannot be merged. In order to qualify for copyright protection, a musical work must be original.
Example:- Famous song “Yaaram” which is written by Gulzar and composed by Vishal Bharadwaj. The copyright of the lyrics will belong to Gulzar and the musical composition will be of the composer Vishal Bharadwaj.
Original Artistic Works:
According to the section 2(c) of the Copyright Act, 1957, the artistic work includes any painting, sculpture, drawing, engraving photograph of any work possessing artistic qualities. However, it also includes the architecture and artistic craftsmanship of such works.
Case: Associated publishers vs Bashyam
Facts: A portrait of Mahatma Gandhi was made based on two photographs.
Held: A portrait based on photographs will be entitled to copyright if it produced a result from the photograph and the portrait itself is original.
Example: A photographer took a photograph of a painting of MF Hussain, then paints the same himself and sells such copies painted by him.
Held: A copyright in a painting is infringed when a person copies from the original painting or a picture of painting.
Section 2(f) of the Copyright Act, 1957 defines cinematographic films which include any work of visual recording and a sound recording accompanying such visual recording and the expression cinematograph shall be construed as including any work produced by any process analogous to cinematographic including video films. It is classified into secondary works as suggested in clause (b) of section 13 of the act.
Case: R.G. Anand vs Delux Films
Facts: Plaintiff was a producer and play writer of play ‘Hum Hindustani’. The plaintiff tried to consider the possibility of filming and narrated the play to the defendant. The defendant, without informing the plaintiff, made the picture ‘New Delhi’ which was alleged to be based on the said play.
Issue: Whether the film ‘New Delhi’ was an infringement of the plaintiff’s copyright in play ‘Hum Hindustani’?
Held: No, because the stories were different, only the theme “love story” was same.
Case: Balwinder Singh vs Delhi Administration
Held: The concept of cinematograph is not only limited to movies being played in theater it also covers videos and television, they both fall under the preview of cinematograph film.
Level of Originality:
A television report or documentary may be based upon a live incident or a newspaper report, thus the act does not prescribe any specified level of originality in the cinematographic film.
According to section 2(xx) of The Copyright Act, 1957 , sound recording suggests that a recording of sounds from which that sound may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. Clause (c) of section 13 of the act state sound recordings as a by-product works.
Case: Gramophone Co. India v. Super Cassette Industries
Facts: ‘G.co’, Plaintiff, produced audio records titled ‘Hum Aapke Hain Kaun’ by Rajashree production ltd, who were the owners of cinematographic work. They had already sold 55 lakhs audio cassettes and 40,000 compact discs titled ‘Hum Aapke Hain Kaun’. The defendants too launched an audio cassette by adopting the same title with its design, color scheme, get up and layout deceptively similar. Permanent Injunction was sought.
Held: Injunction varied by stipulating not to use the same title, design colour scheme etc with bold letters the record is a version of different artists.
In the Copyright Act, 1957, the owner possesses the rights which are to prevent others from using his works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are two types of rights given to the owner:
This right is also known as the Exclusive Rights of the copyright holder provided under Section 14 of the Act. In this Act different types of work come with different types of rights. Such as:
In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects ethical rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the creator, just as much as the economic rights reflect the author’s need to keep the body and the soul of his work out from commercial exploitation and infringement. These rights are supported by Article 6 of the Berne Convention of 1886, formally referred to as a world convention for the protection of literary and inventive works, whose core provision relies on the principle of national treatment, i.e. treats the opposite good as one’s own.
Section 57 of The Copyright Act, of 1957 recognizes two types of moral rights which are:
Section 17 of this Act recognizes the author as the first owner, which states that subject to the provision of this Act, the author of a work shall be the first owner of the copyright therein:
However, this provision provided to bound exception:
The owner of the copyright can generate wealth not only by exploiting it but also by sharing it with others for mutual benefit. This can be done by the way of assignment and licensing of copyright.
Only the owner of the copyright has the right to assign his existing or future copyrighted work either wholly or partly and as a result of such assignment the assignee becomes entitled to all the rights related to copyright to the assigned work, and he shall be treated as the owner of the copyright in respect of those rights.
As per Section 19 , these conditions are necessary for a valid assignment:
It is also provided that, if the period is not mentioned in the agreement it will be considered as five years and if the territorial extent is not stipulated in the agreement, it will be considered as applicable to the whole of India.
According to the Copyright Act, 1957, the appellant board where the receipt of the complaint by the assignor and after holding necessary inquiry finds that the assignee has failed to make the exercise of the rights assigned to him, and such failure is attributed to any act or omission of the assignor, may by suitable order, revoke such assignment. However, if the dispute arises with respect to the assignment of any copyright then that appellate board may also order the recovery of any royalty payable.
According to The Copyright Act, 1957, where under a bequest a person is entitled to the manuscript of any literary, dramatic or any other kind of work and such work has not been published before the death of the testator, unless the contrary is proved such person shall be treated as the owner for such work.
Where a person intentionally or unintentionally infringes the rights of the copyright holder, the holder may be subject to the following remedies available under this Act.
These remedies are given under Section 55 of the Copyright Act, 1957 which are:
This is the most important remedy against the copyright infringement, it means a judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from commencing or continuing such act, or is commanded to restore matters to the position in which they stood previous to the relation. Thus for granting the interlocutory injunction, the following three factors are considered as necessary:
This is a particular form of the interlocutory injunction which restrains the defendant from disposing of assets that may be required to satisfy the plaintiff’s claim or for removing them from the jurisdiction of the Court.
This order is passed to take into possession the infringed documents, copies and other relevant material of the defendant, by the solicitor of the plaintiff. This order is named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd, 1976 . In this case, the plaintiff Antone Piller, the German manufacturer is successful in passing ex-parte awards of restraining the use of his copyrighted products against the defendant.
In this order, the Court has the power to injunct rather than those impeded in the suit, who may be found violating the rights in the field of copyright. Thus this order is issued against the unknown person, who has allegedly committed some wrong, but whose identities cannot entertain the plaintiff.
There are three types of pecuniary remedies provided:
For infringement of copyright, the criminal remedies provided under Section 63 :
In the case of repeat offenders, the minimum punishment terms of 1 year and a fine of 1 lakh however, the highest punishment will be the same as the first-time offender.
This act shall not constitute copyright infringement in cases of:
Fair dealing is the statutory limitation on the exclusive right of the copyright owner which permits the reproduction or use of copyrighted work in a manner that otherwise would have constituted infringement. This law is given under Section 52 of the Copyright Act, 1957 according to which the free uses can be made for any work except computer programs for the purposes:
Chapter IX of the Indian Copyright Act, 1957 describes the provisions of international copyright. Section 40 states the powers to extend copyright to foreign works and section 42 governs the provisions as to works of certain international organizations.
The power to extend copyright to foreign works is as follows -
The Central Government may, by order published in the Official Gazette, direct that all or any provisions of this Act, shall apply.
(a) To publish work first within the territory of India and then outside
(b) To unpublished works, the authors whereof were at the time of the making of the work, subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were citizens of India.
(c) In respect of domicile in any territory outside India to which the order relates in like manner as if such domicile were in India
(d) To any work of which the author was at the date of the first publication thereof, or, in the case where the author was dead at the date, was at the time of his death, a subject or citizens of a foreign country to which the order relates in like manner as if the author was a citizen of India at that date or time.
According to section 42 of the act, it provides power to restrict rights in works of foreign authors first published in India – If it appears to the Central Government that a foreign country does not give or has not undertaken to give adequate protection to the works of Indian authors, the Central Government may, by order published in the Official Gazette, direct that such of the provisions of this Act as confer copyright on works first published after the date specified in the order, the authors whereof are subjects or citizens of a such foreign country and are not domiciled in India, and thereupon those provisions shall not apply to such works.
Digital Right Management includes techniques which have been developed to control duplication, modification and distribution of original works. The authors or the creators of the original works contend that DRM techniques are necessary in order to protect their interest by preventing free and unauthorized copying and distribution of their work.
However there are few who support the view that DRM techniques pose unnecessary hurdles for the public and impede the way of innovation and creativity by not letting others from being motivated by the original work of others.
Many techniques have been developed to protect the original work like digital watermarking, access and copy controls etc. However, despite the fact that these techniques have been incorporated in the legislation, regulation and protection of original works in the digital environment remains a goal that is yet to be achieved. It is very important that ideas should be available to the general public so that the flow of creativity must not be blocked. However, creators and authors must always be incentivized for their efforts. Hence the interest of both must be kept in mind while enacting and implementing DRM techniques.
Section 53, dealing with the importation of infringing copies, has been substituted with a new section providing detailed border measures to strengthen the enforcement of rights by making provisions to control the import of infringing copies by the Customs Department, disposal of infringing copies and presumption of authorship under civil remedies.
The new section 65A, introduced for protection of technological protection measures (TPM) used by a copyright owner to protect his rights on the work, makes circumvention of it a criminal offense punishable with imprisonment.
As a result, any person who circumvents an effective technological measure applied for the protection of any of the rights, with the intention of infringing such rights, shall be punishable with imprisonment, which may extend to two years, and shall also be liable to fine. The rationale is to prevent the possibility of high-rate infringement (digital piracy) in digital media.
This amendment also clarifies the problem of circumvention impacting the public interest on access to work facilitated by copyright laws. Sub-section (2) permits circumvention for specified uses.
Section 65B has been introduced to provide protection of rights management information, which has been defined under clause (xa) of section 2.
This amendment is intended to prevent the removal of the rights management information without authority and distributing any work, fixed performance or phonogram, after removal of rights management information. As a result, any unauthorized and intentional removal or alteration of any rights management information is a criminal offence punishable with imprisonment, which may extend to two years and fine. The rationale of the protection emanates from the practice in the digital world of managing the rights through online contracts governing the terms and conditions of use.
The protection of technological measures and rights management information were introduced in WCT and WPPT as effective measures to prevent the infringement of copyright in digital environments. The introduction of Sections 65A and 65B is expected to help the film, music and publishing industry in fighting piracy.
About the Author: This Law Notes is prepared by Ms. Anubha Mathur, law student at Amity University, Noida and was an intern at MyLawman. She can be reached at anubha602@gmail.com.
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