This article is written by Mariya Paliwala, VII semester at Mohan Lal Sukhadiya University, College of Law, Udaipur (Rajasthan).
What is copyright?
The word copyright is a mixture of two words – ‘copy’ and ‘right’. To be more precise copyright means ‘right to copy’, wherein only the creator or his authorised person has a right to reproduce a work. In simple words, a legal right which is possessed by the owner of Intellectual property is a copyright.
In order to better understand the concept of copyright the elaboration must be taken into consideration. With the help of a significant mental or intellectual ability, when a person creates a unique product that product is viewed to be original. The unique creations including websites, computer software, musical lyrics, art, literature, poetry, graphic designs, musical compositions, novels, original architectural design, films, etc. Further, a copyright is a safeguard which protects an original work from getting duplicated.
When any work is exclusively created by the independent intellect of a creator without any duplication is called Original Work of Authorship (OWA). Anyone who is the original creator of any work he automatically has a right over it and also can prevent anyone else to use it or copy it or replicate it for his own use.
The creator may voluntarily register for copyright if the creator wants to be secured end and have an upper hand in the legal system. By registering this the creator can file a suit against a person replicating his work.
Concepts such as discoveries, slogans, brand names, logos, concepts, domain name, theories, and tiles are all excluded from the purview of copyright and falls under the category of trademarks and patents. For any speech, idea, discovery etc. to a copyright needs to be written down in a physical form.
This concept helps the creators and the artist to work fearlessly and create original products, which are not subjected to replication by any other person.
How did the concept of copyright evolve in India?
The roots of copyright law in India can be traced back to the East India Company’s regime in 1847. During that time, the work was not automatic and the registration with the Home office was compulsory in order to enforce the copyright. The term of copyright extended to the lifetime of the author plus seven-years of post-mortem. In 1914 a new copyright legislation was passed in India with a few modifications which are as follows:
- Introduction of criminal sanctions in the case of infringement of copyright.
- It broadened the term copyright and modified it as a ‘sole right’ wherein the author has the right to reproduce, change, produce or publish a translation of work.
The legislation of 1914 continued till the coming of a new legislation in 1957 i.e. post independence era.
In 1957 a new Copyright law was enacted. Before the Act of 1957, the Act of 1914 was prevalent, which was an extension of the British Copyright Act, 1911. Further in May, 2012 the Parliament of India unanimously passed a bill named Copyright Amendment Bill, 2012. This Bill aimed to bring Indian copyright laws at international level and in compliance with the World Intellectual Property Organisation treaties such as the WIPO Copyright Treaty (WCT) and the WIPO Performance and Programme Treaty (WPPT). Further, the main highlights of the 2012 Amendment bill are:
- Amendments in the right to artistic work such as cinematograph films and sound recordings.
- Amendments in accordance with WCT and WPPT.
- Amendments in the mode of grant of license and assignments.
- Protection against internet piracy.
Copyright in different fields
I. Copyright in Literary work
Literary works are protected by copyright as they are present in physical form. Literary works include books, magazines, newspapers, journals, anthologies, novels, computer software and programmes, letters, e-mails, poetry, lyrics of songs, tables and compilations. Literary works are not only confined to the above mentioned things but also abstracts, encyclopedia entries, dictionary meanings and individual poems are protected within the shield of copyright laws.
Duration of Copyright
In case of a copyright pertaining to literary work both published and unpublished the creator/ author owns the copyright which extends to his lifetime plus 60 years after his death.
The author or the creator of a work is generally regarded as an owner of a work in case of literary works.
II. Copyright in dramatics
Dramatics includes within itself dance, mime covering screenplays, ballets, operas etc. Copyright in the field of dramatic safeguards the creators, composers, choreographers, dramatists, poets, author and other from replication of their work.
The different types of published and unpublished work may be submitted for registration including pantomimes, treatments, plays, choreography and scripts prepared for radio, cinema and television. They may be with music or without music.
Usually, dramatic scripts are intended to be performed including spoken text, plot and direction of action etc. It however needs to be understood that all dramatic work cannot get a copyright. A few dramatic works are exception to it namely:
- Title or series of a programme.
- Copyright protects dramatic expressions of a creator but not the general idea of a work.
- Present work/ script can only be given copyright and not the future scripts/ works.
In order to get the copyright of a dramatic work, a copy of:
- Printed copy
- Film recording
- Video recording
Are treated as a physical script. The registration of the work gets effect on the day when all the above mentioned material is submitted in the Copyright Office in the prescribed format.
III. Copyright in Musical Work
Musical work means a work which consists of music and for a work to be musical it requires a combination of graphical notations. However, it excludes any actions or words which are intended to be sung/ spoken with the music.
The author of the musical work is known as a composer. Composer is a person who composes the music irrespective of the fact that the music is recorded in any form of graphical notations or not.
Duration of copyright
The copyright for the musical work extends to the lifetime of the author plus 60 years after the author dies. However in case of joint authorship the duration is counted after the death of the last author.
IV. Copyright in sound recordings
Sound recordings which comprises of any person’s speech, song sung by any person with or without music, any audio or any podcast. The sound recordings are subjected to copyright.
The author of sound recording is known as producer. The producer of any sound has a right to register himself as the owner of that sound recording which is created by his intellect.
Duration of copyright
The copyright usually lasts for 60 years. However, in the case of sound recording copyright extends to the lifetime of the producer plus 60 years after the death of the creator.
V. Copyright in cinematograph films
Cinematograph films includes a plethora of activities namely:
- Any work of visual recording displayed on any medium from which any moving object can be visualised.
- Work involving sound recordings.
- Stages of protection of cinematography under copyright
Before any film is produced a humongus number of preparation is done which included casting and crewing, scripting, screenplay, shoot schedule, location, rehearsals etc. and here it needs a very strict rules and a legal backing so that nothing can be replicated.
Once the film is released it becomes the prime necessity to protect it from replication.
- Rights of the owner
- Reproduction right
- Distribution and rental rights
- Synchronisation rights
- Derivative working rights
- Broadcasting rights
- Right of adaptation and translation
- Display rights
Another interesting fact in this topic is related with piaracy which is called as ‘copyleft’. The owner has the right to avoid it and sue the person who does the work of piaracy.
Copyright in ownership
Copyright is considered to be a sui generis right which means that a person who is a creator of a thing using his intellect is the prime owner of that thing and has an immediate right over it.
Moreover, in accordance with Section 17 of the Copyright Act, 1957 is concerned with the 1st owner of any work.
- In which cases an author is considered the 1st owner?
- In the case of literary works such as content published online, books, computer software, public speeches etc. in these cases the author is considered to be the first owner of the work.
- In the case of dramatic, artistic or any musical work the author is the 1st owner of that piece of work
- The cases pertaining to art which includes sculptures, paintings, drawings (envisaging, architectural drawing and planning) the creator is the 1st owner of that work.
- In the cases pertaining to cinematography, the producer is the 1st owner of the work. As we all know cinematography involves plethora of activities such as lyrics of songs, scripts, artistic and dramatic work, for this purpose the respective authors shall be the owners. However, in the case of sound recording the producer will be the owner.
- If in case any of the above work is done by any person under a contract then the owner of the work will be according to the terms of the contract.
- For all that work which is created by the employee during the course of employment then the employer shall be the 1st owner of that work. Similarly any work created by a partner in the course of business the work will be counted under partnership. For instance, if any advocate draft something while working in a law firm that creation of draft will be owned by that law firm.
- Lastly, any speech delivered publically, the speaker is the only owner of that speech, irrespective of the fact that it was arranged by someone else or it was given under the employer.
Assignment and license under copyright
Copyright is basically a personal property right, which is regulated by various rules and regulations governed by the state. These rules and regulations govern the ownership, inheritance and transfer of rights pertaining to copyright.
Further, the copyright holder has 2 ways in which he may transfer his copyright i.e through license or by assignment.
Assignment is also known as sale agreement for copyright wherein the owner of any work sell his right to any other person with the help of a contract. After the transfer of ownership the person giving copyright has no control over the fact that how the third party uses it. The person selling the copyright is called assignor and the person buying is known as assignee. Once a sale is completed the assignee is vested with all the rights and he may use that work in whatever manner he wishes to use it. For the assignment to be valid the contract must be written and signed by both parties, the subject of the assignment of copyright must be clear and without any ambiguity.
License under copyright rights means that the owner possesses or maintains his or her copyright ownership rights, however when he permits or allows another party to exercise some of those rights without the party’s actions being considered an infringement of copyright. The person giving license is referred to as ‘licensor’ and the person who is given the license is called ‘licensee’.
Usually, a license is more preferable than an assignment. This is because the copyright holder has the full right over his work and can exercise ownership control over the work whereas,, the licensee uses just a few rights given by the copyright holder.
For instance, a software license agreement is signed between the copyright holder and the licensee, whereby the copyright owner grants the licensee pertaining to the right to use the software in a manner which is specified in a contract. In return, the user/licensee may agree to limit the use of the software as per the agreement and at the same time pay the copyright owner a license fee.
Unlike a copyright assignment, a copyright license may or may not have to be in a written format and signed by both the parties. It can be oral or arise by implication when considering all the facts and circumstances surrounding the transaction between the copyright owner and the purported licensee.
The term copyright office is given under section 9 on the Copyright Act,1957 makes it compulsory to have a copyright office. The copyright office is controlled by the registrar of copyright which is appointed by the Union government, which means that he will be working under the guidance, supervision and orders of the union government. The main aim of registration office is to provide facilities of registration and is headed by the registrars. The copyright office is located at IPO (Intellectual Property Office), Plot No. 32, Sector 14, Dwarka, Delhi, 110075 from G-30, August Kranti Bhawan, Bhikaji Cama Place, New Delhi, 110066. The jurisdiction of this office is extended to whole of India. Copyright office performs the following copyright tasks:
- Literary work
- Artistic work
- Story themes
- Lyric books
- Story books
- Cinematograph films
- Sound recordings
Infringement of copyright
Copyright right is considered to be infringed when someone uses the copyright protected work of the original owner of any work which may include a theme of a book, an article, the lyrics of a song, etc. without the owner’s permission. Moreover, if something is protected by copyright, it can not be generally legally made available to the public in any manner, whether digital or otherwise, without the permission of the person having copyright or body such as publication house or firm who holds it.
Remedies for the infringement of copyright
There are basically 3 types of remedies available in the case of infringement of copyright:
Civil remedies include injunction, return of account of profit, and deliver the infringing copies of copyright work and conversion damages.
Criminal remedy includes imprisonment of the accused or fine or both.
Administrative remedies include moving to the Registrar of copyrights office to ask him to ban the import of infringing copies into India in case the infringement is through such importation and the infringing copies must be delivered to the owner of the copyright.
Rationale behind getting copyright
The main reason for getting copyright is to avoid replication or duplication of an original work by some other person who is not the owner of that work. It is at the same time very easy to prove in court of law that the copyright has been infringed by some other person for which the original owner has not given permission.
How have copyright rights kept pace with advancement in technology?
With the spectacular change in technology, laws of the land must also be strengthened so as to keep up with the changing world. The wide range in the medium of communication like satellite broadcasting, DVDs and compact discs, widespread dissemination of information via the Internet has given birth to very difficult questions concerning the rights pertaining to copyright in this global world. The World Intellectual Property Organization (WIPO) is dealing with the ongoing international debate to shape new and stricter standards for the protection of copyright from infringement in cyberspace. In that regard, the organization ponders over the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which are also known as the “Internet Treaties”. These treaties specify international regulations aimed at restricting unauthorized access or use of creative/ intellectual works on the Internet.
How is copyright regulated?
The copyright societies which are collective licensing bodies are regulated by the following:
The owners and authors have collective control over the copyright societies. The societies have to be approved by the registrars appointed by the central government.Once society is registered then the authors in that society has the right to collect the registration fee and fulfill the formalities of copyright.
Copyright societies ought to submit the returns to the registrar of copyright in the prescribed manner. The officer who has been delegated the work pertaining to copyright by the central government has the right to call for regular reports and records from the copyright societies. This is to make sure that the fee which is deposited is utilised in the appropriate manner.
The main task of central government is to register the copyright societies and appoint an official for registration. In case the copyright societies work in a way which is detrimental to the collective interest the central government has a right to cancel the registration of a copyright society.
Process to obtain copyright
The person applying for copyright has to follow the following steps:
- The person has to file the application along with the fee either in the form of DD/ IPO
- Then the diary number will be issued.
- The person has to compulsorily wait for 30 days for objections.
- If in case no objection is filed then:
- Application will be accepted.
- It will go to the examiner for scrutinization
- If in case there is no discrepancy found, the application will be sent for approval.
- If discrepancies are found then the discrepancy letter will be issued to the applicant. The applicant will have a right to reply which will be heard by the registrar. In case the registrar is satisfied by the reply he may approve the application and send extracts from the register to the applicant.
- However, if not satisfied then he may reject the application and send the rejection letter to the applicant.
5. If in case objection is filed:
- The letter will be sent to both parties i.e. party filing objections and the party against whom the objection is filed.
- Reply will be awaited from both the parties.
- Reply by both the parties will be heard by the registrars.
- If in case objections are rejected the application will be accepted and if objection will be accepted then the application will be rejected.
This procedure applies in the case of both the published or unpublished work.
Copyright and Copyleft
Copyright: Copyright is the shield for those authors who have created their own original documents and software so that no outside world could replicate or copy or duplicate or sell the original work. Copyright infers the power upon the creator or the author to grant some right to copy or reproduce to the outsiders.
Copyleft: Copyleft on the other hand is the method for software or documentation which is supposed to be modified and distributed to the community, provided that it remains libre.
Libre documentation is a kind of documentation where the author can place the copyright to the document and use distribution terms including free documentation license, which empowers everyone to modify, use and redistribute the code provided that the terms remain unchanged. This makes sure that the source code and the freedoms are legally inseparable.
In simple words copyleft empowers the people to freely distribute the copies and modified version of work.
Can fashion designs be copyrighted?
In accordance with section 13 of the copyright Act, 1957 it pertains to the following original works:
- Original, literary, dramatic, musical and artistic work.
- Cinematographic films.
- Sound recordings.
Fashion designs are considered to be artistic works. Fashion designs are protected under copyright law in India provided that it qualifies as original. In the microfiber case, 2006 Delhi High Court bifurcated the meanings of two words ‘purely artistic work’ and ‘artistic work’. The former is regulated by Design’s Act 2000.
Is dance and choreographic work protected under copyright?
Dance is considered to be the most expressive and exclusive form of art as the performer participates not only with his/ her body but also mind with full swing, enthusiasm and energy and above all manages to maintain the discipline that the dance form demands. Cultures all over the world have witnessed the advent and growth of humongous number of dance forms with every dance having a unique and typical form of routine associated with it. Several dance forms such as Bharatnaatyam and Kathak have a predefined set of routines and rules for the entire dance performance. However, steps like the Bhangra step, the Bihu style or the famous pop-singer Psy’s “Gangnam Style” are singular steps complete in themselves. Recently, the US Copyright Office refused to grant copyright to the “Carlton dance” routine by ‘The Fresh Prince of Bel-Air’s star Alfonso Ribeiro while stating the reason behind its rejection that it was a combination of three dance steps which is incapable of registration. Supreme court in the case of Academy of General Edu., Manipal and Ors. vs. B. Malini Mallya, has held that a new form of a ballet dance which is reproduced in a literary format is considered as a dramatic work, which is inturn unique. Thus, if a person wants to register the copyright in a choreographic work, he/she will be required to reduce the work into writing or any other form and apply for registration in that form only. Unless the work is produced in a written format the creator can not be given copyright.
Commendable are the skills of a choreographer who is primarily the author of a unique sequential arrangement in a dance number. In India, dance moves being ‘choreographic works’ are protected under the Copyright Act, 1957. Section 2(h) of the Act clearly says that choreographic work falls within the ambit of ‘dramatic work’ under copyright law.
It is however debatable whether a single dance move involving sufficient skill and judgment can be considered to be intellectual property capable of legal protection or whether the Act intends to only protect a sequence of steps in dance.
Fair Use Rule in relation to copyright
Generally, a fair use is any copying of a material which is copyrighted done for a limited and “transformative” purpose such as to comment upon or to criticize, or parody a copyrighted work. Such actions of criticism, comments etc. can be executed without any permission from the copyright owner. In simple words, fair use is a shield against a claim of copyright infringement. If your use of copyright meets all the parameters of fair use, then it would not be considered an infringement of copyright.
The word transformative use means fair and just use. No doubt, this definition seems vague or ambiguous, millions of dollars as a legal fees have been spent attempting to broadly and specifically elaborate on the rules which define fair use. As such, there are no specified or written rules, only general guidelines and varied precedents in the form of court judgments defines it, because the lawmakers who created the fair use exception did not intend to restrict its definition. Similar to free speech, they wanted it to have an expansive meaning that could be open to interpretation. Most fair use analysis falls into two categories i.e commentary and criticism; and parody.
How to avoid copyright infringement?
Copyright laws are a shield to protect the creator or author of original works, which are creative at the same time intellectual expressions from others using and earning a profit from their work, without the owner’s permission. The idea behind copyright is that the author or creator owns the rights to his work and has the complete discretion over how others use his or her work or creation.
For instance, music copyright would exist with songwriters on their lyrics. When songwriters allow artists to record their words, there would be an agreement outlining how the right to record is granted, thus avoiding copyright infringement.
If another artist decided to record the same song without permission, the songwriter would be able to bring legal action for copyright infringement against the artist. If you believe that the copyright infringement definition sounds like stealing, you would be correct.
Copyright is the shield given by law in the hands of the original owner or author of any intellectual property to be protected against the whole world. Therefore, by giving this shield lawmakers encourage creativity and protect the original work of the creator.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skill.