This article is written by Prerna Baiwara who is pursuing a Diploma in Intellectual Property, Media & Entertainment Laws from LawSikho
Table of Contents
Introduction
Intellectual property is a work created by the human intellect and the objective of its protection is to promote the progress of science and technology, arts, literature and other creative works and to encourage and reward creativity. As Mark Getty rightly said, “Intellectual property is the fuel of the 21st century” and for a country to economically flourish intellectual property must be protected. Copyright is a kind of intellectual property right which protects original literary, dramatic, artistic, and musical, cinematograph film and sound recording. Thus, if you are the creator of an original work like a movie or a song, your rights available to you by virtue of the Copyright Act, 1957 whether it is registered or not shall be protected.
This article defines the meaning of different kinds of work and along with general rights a copyright owner has with respect to its work. This article, further gives prerequisites to make your work copyrightable and remedies when someone infringed your right. Copyright also has an exception, under which certain uses without the authorization of the owner are not prohibited such as parody or critique etc. The article is a handbook for the owner to understand what the rights available to them are.
What falls within the ambit of Copyright?
Copyright in easier terms means right to copy. This means that only the creator of the original ‘Work’ and his authorized person has a right to reproduce the work. The right is further protected by the law to protect the fruits of a man’s work, labor, skill or test from annexation by other people subject to certain limitations.
As per Indian Copyright Act, 1957 (hereinafter referred as Act) Copyright subsist in work and not the idea and the work means any of the following, namely:
- a literary, dramatic, musical or artistic work;
- a cinematograph film;
- a sound recording
Literary works means every aspect of literature in prose and poetry but also, any work in writing including computer program, tables, and compilation including computer database.
Dramatic work means a work created in order to be communicated in motion that is through a series of actions, movements, irrespective of the technique by which the movement is retrieved or expressed for example, Choreography.
Musical work means a work consisting of music and including any graphical notation of such work but does not include any words or actions intended to be sung, spoken or performed with the music.
Artistic work means a painting, sculpture, drawing, engraving, photograph, work of architecture and any work of artistic craftsmanship. However, copyright in work of architecture does not extend to methods of construction. 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.
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.
What rights are available to the copyright owner?
Suppose if you are a producer of an original cinematograph film, you’ll have all the rights with respect to your work as defined by section 14 of the Copyright Act, 1947. Section 14 has given different rights to different kinds of work to the copyright holder. However, in general a copyright owner has the following rights.
- Right to Reproduce – It is one of the most important rights of the copyright owner. It gives a copyright owner an exclusive right to make copies of its work and also prevents others from making copies without authorization.
- Right to Distribute – It gives the copyright owner the authority to distribute the work in any manner they like. They can put up on sale or rent as it deems fit.
- Right to make derivative work – This gives the copyright owner a right to make adaptation or translation of its work. For example, making a movie out of a book or making a remix of a song.
- Right to Perform – This is exactly what it says. A copyright owner has the exclusive right to publicly perform its work or broadcast it publically.
- Paternity Right – It gives a copyright owner a right to claim authority and acknowledgment of its work.
- Right to Follow – This gives right to the owner of the copyright to get a percentage share of the subsequent sale of its work. This is usually for literary or artistic works.
- Right of Integrity – This gives the copyright owner a right against distortion, mutilation or alteration of the work in a manner which is prejudicial to its reputation and honor. For example if a right is granted to adapt the book into a cinematograph film through license, and the said cinematograph film has unnecessary sexist or vulgar jokes that are prejudicial to the original author’s reputation, he/she can institute a suit or criminal proceeding.
- Sui generis Right – is a right to protect the database against unauthorized creation. The law is not evolved on the sui generis right due to lack of creativity in computer databases.
Exception
Fair use or Fair dealing is an exception to above rights. A person is not therefore infringing a right of a copyright owner if it is using the copyrighted work for criticism or teaching or research. So, if you are a teacher who is using certain text from a book of other author in a YouTube video for ‘educational purpose’, the original author can’t sue you for infringement by the virtue of Fair use doctrine.
Fair dealing is nowhere defined but courts have through series of judgment devised a test to determine whether the fair use affects the market or values of the work. Section 52 of the Copyright Act, 1957 further gives an exhaustive list of the acts that does not amount to infringement.
Prerequisites a copyright owner needs to fulfil in order to claim these rights
In order to obtain copyright protection, following prerequisites are required.
- Fixation
It is known that an idea or a fact cannot be protected under the copyright law. Thus to get copyright protection, work must be in a tangible form of expression. If two people have the same idea for a reality show, they can sue each other for stealing the idea unless one can prove that certain things in tangible form have been done in furtherance of executing the idea like Concept notes.
- Originality
Only the original work is protected under the copyright. A derivative of an original work is copyrightable as long as it has “Minimum Creativity”. Thus, if you want to copy an original copyrighted work, do it with a little creativity.
- Term
Generally, a copyright exists for only 60 years and after that it falls under the public domain and no copyright protection is granted for the owner. Like Beethoven’s Moonlight, Sinatra is in public domain and can be used without authorization.
Remedies available to copyright owners in case of infringement
Copyright infringement means the unauthorized use of a copyrighted work. It is the use of someone else’s work in any manner subject to the provision of the Copyright Act, 1957 without authorization. Such persons whose rights are infringement can approach the appropriate authority for remedies. It must be noted that one must not need to have their copyright registered to avail remedies.
- Civil Remedies
As per Section 55(1) of the Act, the owner of the copyright will be entitled to injunction (a judicial process by which the court restrain the person from continuing his act), damages, accounts in case of copyright infringement. However, if the defendant (person who infringes) proves in the court that he was not at the date of such infringement aware and has no reason to believe that copyright exists in the work, the owner will only be entitled to injunction. In case, someone reproduces an original cinematograph film without the authorization of the producer, the producer can approach the court to restrain the use of his work and receive the damages.
- Criminal Remedies
The owner of the copyright along with a civil suit can also institute a criminal proceeding against the copyright infringer. As per the Section 63 of the Act, any person who infringes someone’s copyright shall be punished with an imprisonment of a term which shall not be less than 6 months but can be extended to 3 years and fine which shall not be less than 50 thousand but can be extended to 2 lac.
Conclusion
In conclusion, the objective of copyright is to protect the right of the owner and the creator. The purpose of the protection is to give the owner a freedom to use the work, gain economic benefit and protect them against use of their work unauthorized or in an immoral manner. The registration of the work is voluntary but it is advisable to get your copyright registered as it act as evidence in the court. If the person infringes the right of a copyright owner, the Act gives both civil and criminal remedies. Civil remedies in form of injunction and damages and criminal remedy in form of imprisonment and fine. However, there are no alternatives to each other. A person can file both a civil and criminal proceeding in the court.
There are certain exceptions to use of copyrighted work which does not infringes the owner’s right. However, it is advised to produce original work. Innovation and creativity are two important tools to mankind and their protections are imported to promote creators.
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