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Copy Right
Copy Right
Copy Right
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.
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 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.
1. Berne Convention, 1886
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 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: -
1. The work originating in one signatory nation of Berne Convention to be protected in the
same manner in other nations too.
2. The automatic protection was granted to the author’s work and was not subjected to any
registration deposition fees or any formal notice in connection with the publication. This
means that the copyright exists as soon as the work is “FIXED” i.e. recorded in any form.
3. If any dispute arises in the nation of origin, then the dispute can be filed in either of both
nations.
4. It described types of works protected, duration of protection, scope of exceptions and
Limitations of copyright.
5. Principles such as “national treatment” (works originating in one signatory country are
given the same protection in the other signatory countries as each grants to works of its
own nationals)
6. Principles such as “automatic protection” (copyright inheres automatically in a qualifying
work upon its fixation in a tangible medium and without any required prior formality).
The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention which
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:
i.Computer programs, whatever the mode or form of their expression; and
ii.Compilations of data or other material ("databases").
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 infringements both: -
The circumvention of technological protection measures attached to works
The removal from a work of embedded rights management information.
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
the developed and industrialized countries.
The TRIPs Agreement covers seven categories of intellectual property rights:
Copyright
Trademarks
Geographical Indications
Industrial Designs
Patents
Integrated Circuits
Trade Secrets
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 programmes are also included in literary works. Authors of Computer programmes,
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 Berne Convention.
Objectives:
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.
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.
Sound Recordings:
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 version of different artists.
RIGHTS OF THE COPYRIGHT HOLDER
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:
Economical rights;
Moral rights.
Economic rights
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:
Right to communicate;
Right to issue copies; and
Right to sell, rent, offer for sale of the copyrighted work.
Moral rights
In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects the
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 reflects 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, 1957 recognize two types of moral rights which are:
Right to paternity– which incorporates the right to assert the authorship of the work, and right
to forestall others from claiming authorship of his work; and
Right to integrity- which incorporates right to restrain, or claim of damages in respect of any
distortion, modification, mutilation, or any other act relates to the said work if such distortion,
multiplication or alternative act would be prejudiced to claimant honor or name.
In case of creation is made by the author underemployment of the proprietor of any newspaper,
magazine or any periodic, the said proprietor,
In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made
for the valuable consideration of any person, such person,
In case of a work done in the course of the author’s employment under the contract of service,
such employer,
In case of address or speech delivered on behalf of another person in public, such person,
In the case of government works, the government,
In the case of work done under direction and control of public undertaking such public
undertaking, and
In the case of work done in which provision of Section 41 apply, concerned international
organizations.
ASSIGNMENT OF COPYRIGHT
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.
Mode of the assignment agreement
As per Section 19, these conditions are necessary for a valid assignment:
It should be in writing and signed;
It should specify the kinds of rights assigned and the duration or territorial extent; and
It should specify the amount of royalty payable if required in any case.
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.
Disputes related to the assignment of copyright
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.
Operation of law in assignment
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.
INFRINGEMENT AND REMEDIES
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.
Civil remedies
These remedies are given under Section 55 of the Copyright Act, 1957 which are:
Interlocutory injunction
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:
Prima facie case, an assumption of the court that the plaintiff can succeed in the case and
become eligible for relief.
Balance of convenience, in it the court will determine which parties suffer the greater harm,
this determination can vary with the facts of each case.
Irreparable injury, it is difficult to decide and determine on a case by case basis. Some
examples of it include- loss of goodwill or irrevocable damages to reputation, loss of market
share.
Mareva injunction
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.
Anton Piller order
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.
John Deo’s order
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.
Pecuniary remedies
There are three types of pecuniary remedies provided:
1. An account of profit, which lets the owner seek the sum of money made, equal to the
profit made through unlawful conduct.
2. Compensatory damages, which let the copyright owner seek the damages he suffered.
3. Conversational damages, which are assessed to the value of the article.
Criminal remedies
For infringement of copyright, the criminal remedies provided under Section 63: