The following article has been written by Ishani Samajpati, pursuing B.A. LL.B. (Hons) under the University of Calcutta. This article offers an exhaustive discussion on the concept of copyright along with its historical background, relevant conventions on copyright, related pieces of legislation, types of works that are subject to copyright, registration procedures and landmark cases on copyright. It also briefly discusses how to use copyright-protected works without infringing and steps to take in case of infringement of copyright over internet.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
Copyright is one of the categories of legal protections for certain types of intellectual property. By virtue of copyright, it grants exclusive ownership and control to the creators of ‘original’ creative work.
Copyright is seen as a vehicle for adding to the wealth of culture and knowledge of the society by encouraging the creation and dissemination of new creative works. It grants an exclusive, legally secured right to the owner of any creation while it legally excludes others from any usage rights.
However, originality is sine qua non of Copyright Law.
Historical background of copyright
The requirement for a law on copyright emerged with the invention of the printing presses in Europe in the fifteenth century. Prior to that, the requirement for a law protecting the copying of books or manuscripts did not arise given the tediousness involved in copying a book by hand. With the invention of printing in Europe, the need for a law prohibiting unauthorised printing, sale or import of a book arose.
The Stationers’ Royal Charter, 1557, granted the “the exclusive right of printing any book or anything for sale or traffic” which effectively allowed the original publishers (commonly known as the Stationer’s Guild) to have exclusive control over works published by them.
The Licensing of the Press Act, 1662 was the first legislation regarding copyright which later shaped the future of the Copyright Law in England and America.
The Statute of Anne, passed in 1710, was the very first exhaustive piece of legislation on copyright in Great Britain.
The Indian Copyright Act, 1914, based on the Copyright Act, 1911 of Great Britain was the first modern law on copyright in India.
International conventions and treaties on copyright protection
There is no concept of universal copyright while copyright infringements may take place everywhere. Though no creative work is protected automatically worldwide and any particular copyright protection legislation in a nation is ineffective outside the territory, multilateral treaties have increased the harmonisation for protection of copyright in a wide range of countries. They provide protections to all the creative works as soon as they are fixed in any tangible medium.
The international conventions have also helped a lot in shaping the nature and protections offered to the creative works under the copyright.
Berne Convention for the Protection of Literary and Artistic Works
This Convention, usually known as the Berne Convention, is an international agreement adopted in 1886, deals with governing copyright, which was first accepted in Berne, Switzerland, in 1886.
The Berne Convention formally mandated several aspects which formed the basis of modern copyright law in most of the countries.
It introduced the concept that a copyright exists the moment a work is ‘fixed’ in any tangible medium rather than requiring registration. The Convention also enforced a requirement that countries recognise copyrights held by the citizens of all other signatory countries.
- The Berne Convention requires its signatories to treat the copyright of works of authors from other signatory countries at least as well as those of its own nationals.
- In addition to establishing a system of equal treatment that internationalised copyright amongst the signatories, it also required the member states to provide strong minimum standards for copyright under the copyright law.
- Copyright under the Berne Convention must be automated; it is prohibited to require any formal registration.
Buenos Aires Convention on Literary and Artistic Copyright
The Buenos Aires Convention, also known as the Third Pan-American Convention is a copyright treaty signed at Buenos Aires, Argentina, on 11th August, 1910 by most of the North and South American countries. It provided mutual recognition for copyrights where the work has a notice containing a statement of reservation of copyrights. It is commonly done with the phrase, “All Rights Reserved” next to the copyright notice.
- The implementation of this Convention varied as US law only required the author and the year of publishing.
- Copyright protection under this Convention is granted for the shorter of the terms of the protecting country and the source country of the work.
- The opaque nature of the requirement for a statement of reservation led to the development of the long and more legalistic wordings which have persisted despite the developments in the copyright scenario internationally.
- The Convention is specifically retained by the Universal Copyright Convention of 1952.
- As this Convention was not modified, the presence of a simple copyright notice was sufficient to ensure mutual recognition of copyright between countries which became parties to the Universal Copyright Convention.
- All parties to the Buenos Aires Convention are also parties to the Berne Convention, which provides mutual recognition of copyright without any formalities.
The Buenos Aires Convention became a special agreement in terms of Article 20 of the Berne Convention. This Convention remains in force notably for determining the ‘rule of the shorter term’ (Article 7) which dictates the length of the copyright term in any country was whichever was shorter – either in the source country, or the protecting country of the work.
Universal Copyright Convention in Geneva (1952)
The Universal Copyright Convention (UCC), adopted in Geneva, Switzerland in 1952 is one of the principal international conventions protecting copyrights. The UCC was developed by the United Nations’ Educational Scientific and Cultural Organisation (UNESCO) as an alternative to the Berne Convention for those nations which disagreed with the provisions of the Berne Convention but desired to participate in some forms of multilateral copyright protection. The nations included most of the developing countries, the United States of America and some Latin American countries. The developing countries were of the opinion that the strict copyright provisions in the Berne Convention would only benefit the Western Nation while the latter two were the parties to the Buenos Aires Convention.
The Berne Convention nations also became a party to the UCC so that their copyright protection would exist in non-Berne Convention nations, too.
Since most of the countries are members of the World Trade Organisation (WTO), and they necessarily comply with the Agreement on Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), the UCC has lost its significance.
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (1961)
The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, 1961, was the first international treaty to deal with neighbouring/ related rights in copyrights.
That there was a firm conception of hierarchy between copyright and neighbouring rights, with primordial status conferred on the former, is evident from the very first Article of this Convention, which makes clear that the protection granted by it shall not in any way affect the copyright protection in literary and artistic works, and that its provisions shall not prejudice such protection.
This Convention went on to define performers in Article 3(a) as “actors, singers, musicians, dancers and other persons who act, sing, deliver, declaim, play in, or otherwise perform literary or artistic works”.
The minimum term of protection for both performer’s rights and broadcast rights was twenty years computed from the end of the year in which the performance or broadcast took place.
Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (1994)
Unlike the Berne Convention did not stipulate any elaborate remedies for copyright infringement, the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (TRIPS), on the other hand, has laid out a much more elaborate scheme of remedies, both civil and criminal, in Part III for enforcement of intellectual property rights.
It is an international legal agreement between all the nations who are members of the World Trade Organisation (WTO).The three basic features of TRIPS include: standards, enforcement and dispute settlement. However, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) did not add anything new to the scope of protection offered by performer’s rights or broadcast reproduction rights in the Rome Convention.
WIPO Copyright Treaty (1996)
WIPO Copyright Treaty is an international treaty on copyright law adopted by the member states of WIPO in 1996.
- It provides additional protections for copyright deemed necessary due to the advancement in information technology since the formation of previous treaties on copyright.
- This treaty ensures that computer programs are protected as literary works and the arrangement and selection of material in databases is protected
- It provides the creators control and distribution of their works which was previously not there in Berne Convention.
WIPO Performances and Phonograms Treaty, 1996 (WPPT)
The WIPO Performances and Phonograms Treaty, 1996 (WPPT), has taken long steps to enhance the rights of the performer.
- It has extended the duration of protection for a minimum period of fifty years.
- It provided for separate moral rights to attribution (i.e., the right to be credited for the performance) and integrity (i.e., the right to prevent mutilation, distortion or other modification of the performance that would prejudicially affect the performer’s reputation) to the performer.
The Treaty has also enhanced the economic rights conferred on performers to include:
- the exclusive right of distribution to the public of the original and copies of their performances fixed in phonograms through sale or any other transfer of ownership or through commercial rental and
- the right to a single equitable remuneration (along with the producer of the phonogram) for the direct or indirect use of phonograms of their performances published for commercial purposes for broadcasting or for any communication to the public.
The Treaty has also added self-help measures such as technological protection measures and electronic rights management information that performers may employ to prevent infringement of their rights, by mandating member countries to provide adequate legal protection and effective legal remedies against their circumvention.
Anti-Counterfeiting Trade Agreement, 2011 (ACTA)
The Anti-Counterfeiting Trade Agreement (ACTA) is an agreement which is creating new Intellectual Property enforcement standards that leads to secret negotiations shifting the focus from the international forums such as World Trade Organisation (WTO) and World Intellectual Property Organisation (WIPO).
Through this Agreement, the countries aim to increase the authority of the law enforcement agencies to prohibit infringing activities such as hacking and piracy in information industries. It was negotiated from 2007 to 2010 by many developing countries but so far has only been ratified by Japan.
Marrakesh VIP Treaty (2013)
The Marrakesh VIP Treaty is a treaty on copyright adopted in 2013 at Marrakesh in Morocco.
It is an international legal treaty which targets to achieve for blind, visually impaired and print disabled people to access copyright-protected works.
The purpose of this treaty is purely humanitarian. The main goal of this treaty is to create mandatory limitations and exceptions to benefit the blind, visually impaired, and otherwise print disabled (VIPs).
India has become the first nation to ratify the Marrakesh Treaty to facilitate access to published works for persons who are blind, visually impaired or otherwise print disabled.
Copyright protection legislations around the world
Most of the nations have their own copyright act nationally. But they are territorial and do not apply beyond the national jurisdictions. Some of the noteworthy copyright legislations around the world are:
The Copyright Act, 1976
It is the principal copyright law in the United States now. The Copyright Act, 1976 forms the basis of copyright law in the US and covers all the governing factors under the copyright.
Digital Millennium Copyright Act (DMCA), 1998
The Digital Millennium Copyright Act (DMCA), 1998 is a federal law in the United States for the protection of copyright holders from online theft, and from the illegal usage of copyright-protected materials, reproduction or distribution of the creative works.
EU Copyright Directive
The copyright law in Europe is not harmonised at the community level and the member states take different approaches. The Information Society Directive, 2001 was formulated as an attempt to harmonise the copyright law within the European Union island to enact the implementations of the WIPO Copyright Treaty.
Copyright, Designs and Patents Act, 1988
Copyright, Designs and Patents Act (CDPA), 1988 is the principal legislation governing intellectual property rights including copyrights in the United Kingdom. This law has originated from the concept of English common law and it has influences of the historic Statute of Anne.
This law covers a wide range of intellectual properties including copyright.
Copyright legislation in India
In India, copyrights are protected by the Indian Copyright Act, 1957. To ensure the protection of copyright, India has entered into various treaties to secure global copyright protections.
It regulates and governs the protections of creative works within India.
Countries with no copyright legislation earlier
According to the US Copyright Office, three countries, Eritrea, Turkmenistan and San Marino had no copyright protection earlier for creators within their own borders or for foreign creative works.
Turkmenistan has been a member of the Berne Convention since 2016 and Law No. 257-IV of January 10, 2012, on Copyright and Related Rights is the only law in Turkmenistan.
San Marino is a member of the Berne Convention and WIPO Copyright Treaty 2020 and Law No. 8 of 25 January 1991 – Protection of Copyright is the main enacted legislation.
Eritrea still does not have any legislation regarding copyright and has not acceded to the Berne Convention as yet.
Types of work that are subject to copyright
Not every work enjoys copyright protection. A work has to be original in order to enjoy copyright protection.
Copyright law requires that the ‘expression’ of the idea in the work must originate from the author and should not be copied from anywhere else. Another significant fact is that the copyright protection does not depend upon the quality or style, but on the originality of the produced work or the creation in question.
Copyright law recognises several categories of work that receive protection. These categories include the works as enumerated below
Literary work
Literary works are not limited to works of literature alone, but include all works expressed in printed or writing forms (except dramatic or musical works). Computer programmes, tables and compilations including computer databases falls within the ambit of literary work.
The copyright protection is not limited to words, but also includes symbols and numerals.
Literary work should have the following characteristics:
- It must be original and be fixed in some tangible form.
- The word literature has to be understood in the same manner as it is understood in political and electioneering sense.
- It refers to written or printed matter.
- No merit other than originality is required.
In Walter v. Lane (1900), a book which was published based on articles in ‘The Times’ which were verbatim of the speech made by Lord Roseberry – was held to be original since own skill and labour was exercised.
Dramatic work
The essence of a dramatic work is a story or a narrative. A written description of the acts of the performer acts as a prerequisite for copyright protection. Any work of action, with or without music, capable of being performed before an audience is termed as a dramatic work.
Copyright subsists not only in the actual words of the work but in the dramatic incidents of the work as well.
In Tate v. Fullbrook (1908), it was held that any dramatic work in its entirety along with the scenic effects comes under copyright.
Musical work
Musical work does not include words intended to be sung or spoken with the music or action intended to be performed with the music or song lyrics. It refers to a work which consists of music and includes any graphic notation of such work.
The creator of any musical work is known as a composer. The rights of the composer are protected under copyright irrespective of whether the recordings of the music are available in graphical notations or not.
Artistic work
An artistic work should have an original content to be protectable under the copyright. Therefore anybody who can create an original artwork can be entitled to copyright protection. Copyright law while attributing authorship to a painter does not subjectively assess how good or poor an artwork is.
The assessment of the artistic merit and quality is done by art connoisseurs and dealers. It is understood outside the domain of copyright.
Original work involving the art of carving, modelling, welding or other works of art in three dimensions are also protected by copyright.
Architectural work
Architectural works are protected as artistic work if they are the original creation of the creator, i.e., the architect. Architectural drawings, diagrams, charts, maps, plans and even circuit diagrams are all protected as artistic works.
However, the building built with the architectural plan does not amount to copyright under architectural works. It may have a separate protection under the intellectual property.
Cinematograph films
The ambit of cinematographic films will cover, but not limited to, feature films, documentaries, and even animated movies.
If the original version of any film is in the public domain, anyone can remake it. However, whether the remake will enjoy copyright or not, depends on the availability of sufficient new expression.
Sound recording
Sound recording is a recording of sounds from which such sounds may be heard later. The medium or the method by which the sounds have been created does not matter. The only condition is that the sound recording should be original.
If an originally composed audio recording is fixed on a medium such as CD-ROM or pendrive, it qualifies for protection under copyright .
Apart from the abovementioned, some more works that are subject to copyright are:
- Audiovisual works, such as television shows, soap operas, movies, and online videos
- Originally created videos available on YouTube
- Video games
- Computer software
Works that are not subject to copyright
Particular aspects of works do not constitute the subject matter under copyright.
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices are not subject matters under copyright.
- Titles, names, short phrases, slogans, typefaces, fonts and lettering and mere listings of ingredients or contents cannot be copyrighted.
- Works not fixed in a tangible form of expression cannot be copyrighted.
- Commonly available works which contain no originality (for example, calendars, standard measurements, lists or tables compiled from public documents) are not copyrightable subject matter.
However, some titles and words might be protected under trademark law if their use is associated with a particular product or service.
Rights provided by copyright
One of the most fundamental rights granted to the owner by virtue of copyright is the right to reproduce a work. It also grants the rights to distribute and perform literary, musical, dramatic, artistic work.
Copyright protection also extends to works that are commissioned by businesses and other organisations where the creator was hired to create the work. It also includes creative works created during the normal course of employment.
Though the rights provided by the copyright vary depending upon the types of creative works, the rights conferred in any copyrighted work can be broadly classified under the following headings:
Right of reproduction
The right of reproduction of any creative work implies the right granted to the original owner or an authorised person to make copies of the said work. It is one of the main priorities of copyright law. The owner of copyright in an artistic, literary, musical or dramatic work has the exclusive right to reproduce the work in any material form as per wish.
In order to prove that an individual has infringed this exclusive right of the owner of copyright, it must be shown that:
- The alleged infringer has copied the copyright owner’s work rather than making an independent creation.
- That the unauthorised copying of the work should amount to improper appropriation.
Right of distribution
This right of distribution of any copyrighted work embodies the exclusive right of a copyright owner to distribute the copies of the creative work. This right also ensures that the copyright owner may transfer, nominate or entitle another individual whole or part of the rights.
Right to public performance
Copyright also grants the owner the exclusive right of public performance. The copyright owner has the exclusive right to publicly perform the work. Due to this right, the creator, apart from making copies and distributing them, can perform his work publicly, too.
For instance, in the case of a literary work, the copyright owner has the exclusive right to recite or read the work in public. Similarly for a musical work, the copyright owner has the exclusive right to perform the said work before the public. Another common example of the right to public performance under the copyright is the right of a singer of any particular song (musical work) to perform that song live in front of audiences.
Right of communication to the public
The copyright owner also has the exclusive right to communicate the copyrighted work to the public. It implies making any work available for being seen or heard or otherwise enjoyed by the public directly or by any other ways than by issuing copies or distribution. It does not matter whether any member of the public really sees, hears or otherwise enjoys the work so made available.
In other words, the right to communicate grants the owner to broadcast or make the copyrighted work accessible to the public through the internet.
The exclusive right to communicate the work allows the owner to control the wide dissemination of the work and it is this right that confers significant economic benefits on the copyright owner. Because of this right, the owner is empowered to decide the terms and conditions of the copyrighted work.
For example, the owner of a copyright in a film is able to charge royalty fees from movie theatres or sell rights in the film to such theatres since it has the exclusive right to communicate the work to the public. It also includes the promotion of a newly published literary work by the author.
Right of adaptation
The copyright grants the owner an exclusive right of modification or adaptation of the copyrighted work.
In other words, the copyright owner has the exclusive right to prepare ‘derivative works’ of its own work. For instance, the copyright owner of a book (literary work) has the exclusive right to give permission to adapt the same into a film. In case of any literary work, the owner also has the right to translate or authorise another individual to translate the work into another language.
This right is interconnected with the right to integrity which protects the original copyrighted work of the owner to distort, mutilate or alter in a way harmful or prejudicial to the owner’s honour or reputation.
Right of sale or rental
Some of the copyrighted works such as computer programmes, films and sound recordings can be sold in the market. Through this, the works can be easily disseminated very widely simply by sale or rental in a market. Hence, the copyright offers the exclusive right to sell or give a commercial rental or offer for sale of the original or the copy of a computer programme, film or sound recording.
Related/ neighbouring rights
Related or neighbouring rights are a separate set of rights resembling copyright. These are given to certain individuals or organisations to help make the works available to the public. These rights are usually given to performers, producers and broadcasting organisations etc.
How long does a copyright last
Copyright is not a perpetual right. It exists for a specific term. After the expiry of the term, the ‘work’ falls in the public domain and is then open for the public to use without permission of the owner. In other words, copyright is a term based right and not a perpetual right.
The Berne Convention for the Protection of Literary and Artistic Works specifies the duration of copyright as the lifetime of the creator and after 50 years of death. However, it varies from country to country.
Many countries in the European Union and the United States have extended the duration of copyright to 70 years after the author’s death.
In India, copyright lasts after 60 years of the author’s death.
Registration for copyright
The Berne Convention provides that no formal registration is required for any creative work and the protection under copyright is granted as soon as it is fixed in any tangible medium.
At first, it introduced the principle that the creators only need to comply with the formalities according to the country of origin of the creative work.
This was replaced in the 1908 Berlin Convention by the current principle of formality-free protection which was fully reflected in Article 5(2) of Paris Act, 1971 which clearly states that the enjoyment and the exercise of copyright ‘shall not be subject to any formality’.
In most of the signatory countries, registration under copyright is optional. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law in case of any dispute arises with regard to the ownership of copyright.
The registration of copyright differs according to the national legislation of any particular nation. Stages of registration copyright include:
- Filling an application for registration with requisite fees
- Scrutinisation
- Registration rejected or approved
Registration for copyright in India
Chapter X consisting of Section 44 to Section 50A of the Copyright Act, 1957 thoroughly deals with the registration process of copyright in India.
Register of the Copyrights
Section 44 states that a Register of the Copyrights at the Copyright Office to be kept to enter the details of the author and the work to be copyrighted.
Application for registering copyrights
Section 45(1) lays down that an interested author, publisher or owner may apply for copyright registration in the form with the requisite fees to the Registrar of Copyrights. It further states that before applying for copyright any artistic works used in any goods or services, a certificate from the Registrar of TradeMarks as mentioned in Section 3 of the Trade Marks Act, 1999, stating that no trade mark is identical or deceptively similar to the artistic work has been registered under that Act in the name of, or no other person except the applicant has applied for the registration.
Under Section 45(2) , the Registrar of Copyrights after inquiry will enter the details of the work in the Register of Copyrights.
Correction of the entries
Section 49 states that the owner of the copyright can correct, amend or alter the wrong entries of the details made in the Register of Copyright due to slip or omission
Order for rectification of the entries
Under Section 50, an aggrieved owner of the copyright or even the Registrar of Copyrights may approach the Copyboard Board to get an order to make, expunge or correct any error wrongly made or defects of the entries in the register.
Register of Copyrights is the prima facie evidence
According to Section 48, the details of the work mentioned in the Register of Copyrights is the prima facie evidence in the court of law in case any dispute arises. A certified copy of the details signed by the Registrar of Copyrights and sealed with the seal of the Copyright Office is admissible as evidence in all courts without any further proof or production of the original work.
Registration of copyrights is not a statutory requirement
However, no provisions under the Copyright Act, 1957 makes the registration of the copyright mandatory. This is indicative from the usage of the word ‘may’ in every section in the concerned Chapter.
Further, the phrase used in Section 45 “the owner of or other person interested in the copyright” indicates that the registration of copyright is optional in India.
Advantage of registration of copyrights
It is suggested to register any creative work under copyright since the particulars mentioned therein will serve as the prima facie evidence in case of any dispute and proving the rights or the ownership of the copyright will be easier since no further proof is required.
Copyright infringement notification requirements
If an individual believes that the copyright of his or her copyrighted works has been violated i.e., the infringement of copyright has taken place on the internet, it should be notified in the following ways consisting of the following elements without which no proper action can be taken.
Contact information
Contact information, such as an email address, physical address or contact number of the copyright owner should be provided to the appropriate authority along with the complaint to communicate during the resolving of the complaint.
Accurate description of the alleged infringed work
In the copyright infringement complaint, all the proper details regarding the work should be clearly and completely described to protect it. If the complaint is regarding multiple copyrighted works, a representative list of the works should be provided, as laid down by the law.
Mention of URL or URLs of allegedly infringing content
To help the appropriate authorities locate and identify the copyrighted work on the internet, the copyright infringement complaint must contain the specific URLs of the allegedly infringed work.
Since a vast number of creative works and contents are available, locating any particular content is almost impossible. So mere general information about the location of the content is not adequate and the URL or all the URLs in case of multiple infringed contents should be provided with the complaint.
Agreement and affirmation to particular statements
In the complaint, the individual should agree and affirm statements regarding the copyright. The statements to affirm are about the truthfulness of the complaint and regarding the confirmation of the ownership of the infringed content.
Signature of the complainant
A whole complaint regarding copyright infringement requires the physical or electronic signature of the copyright owner or the physical or electronic signature of any authorised representative acting on behalf.
To fulfil this formality, the full legal name at the bottom of your complaint should be given which will act as the authorised signature.
An individual can file a copyright infringement complaint of contents available on the internet using the legal troubleshooter of Google.
Can someone use a copyright protected work without infringing owner’s copyright
There are few ways through which any copyright-protected work can be used without infringing the owner’s right.
Licensing
A copyright-protected work can be legally used with a license. A license is a permission obtained to use copyrighted work. It provides curious conditions of non-commercial usages or commercial usages on condition.
Creative Commons license is among one of several public copyright licenses which enable an individual the free distribution of a work protected by copyright. This licence provides public permission to use creative work protected by copyright.
An individual may approach the owner of the copyrighted-protected work to request a right to use whole or specific portions of the content. The owner can provide a license with terms and conditions.
Fair use
The doctrine of fair is another method which allows an individual to use the copyright-protected work without infringing the owner’s right. Fair use of copyright-protected works are the exceptions which allows restricted use of the content of the creator without any permission.
The justification of ‘fair use’ allows the right to use a small portion of content without any penalty. It helps to use a very limited portion of the copyright-protected work with few restrictions. The actual market value of the original work should not be affected by fair use of the protected content. Examples of fair use is quoting from a book protected under copyright while copying an entire chapter of a book will amount to infringement of copyright. The creation of the parody of an original work also amounts to the fair use of the content.
The fair use of the copyright-protected work should be noncommercial, educational, scientific, or charitable.
The fair use case of Sony Corp. of America v. Universal City Studio (1984), also known as the ‘Betamax Case’ is a ruling by the Supreme Court of the United States which ruled that the making of complete copies of individual television shows for the purposes of time shifting does not constitute copyright infringement but it is a fair use.
Landmark judgements on copyright infringements
There have been some major controversies related to the rights granted by copyright and the infringement of it. However, due to limited scope in this article, some of the landmark copyright infringements controversies and cases in the past and recent times in every field are given below in short:
Vanilla Ice v. David Bowie/Freddie Mercury (1991)
One of the most famous cases of copyright infringement is the above mentioned case.
In 1991, Vanilla Ice released a song “Ice Ice Baby” which was sampled from a song called “Under Pressure” by David Bowie and Queen. Though initially denying the fact, he confessed it later after a suit was filed.
This followed an out-of-the-court settlement where Vanilla Ice paid an undeclared amount of sum.
Rogers v. Koons (1992)
Here, the photographer, Art Rogers, shot a famous photograph titled “Puppies”. Jeff Koons created a sculpture titled “Strings of Puppies” which he sold for huge profits.
Subsequently, Rogers filed a suit against Koons for infringing upon his copyright. Koons took the defence of fair use as the parody of the original work.
On appeal, the Supreme Court held that the defendant Koons was not entitled to the defence. He was directed to pay a monetary settlement to Rogers.
Apple v. Microsoft (1994)
During the release of Windows 1.0, the two companies eventually reached a settlement where Apple licensed Macintosh design elements to Microsoft for using in Windows.
However, the licence for the use of Apple features in Windows 1.0 and all future Microsoft software programs was mentioned in that agreement.
In 1988, Apple sued Microsoft for allegedly copying different features of the Macintosh operating system to create Windows 2.0. without any licence.
It was ruled that most of the alleged copyright infringements were, in fact, covered by the existing licence, and the rest were not eligible for copyright.
After several appeals, the legal fight regarding this case officially ended in 1994, when Apple’s petition was denied by the Supreme Court.
The Associated Press v. Fairey (2010)
This case offers an interesting study on fair use and fair dealing of copyright.
Fairey, a famous street artist, created a poster with Obama’s portrait named Hope poster during the presidential election of 2008. The poster soon became associated with Obama’s presidential campaign.
Later in 2009, the Associated Press demanded that the poster was based on one of the portraits, shot by a freelancer. They claimed compensation for the unauthorised use.
In 2011, both the parties arrived at a mutual private settlement.
William Roger Dean v. James Cameron, et al. (2014)
Artist William Roger Dean filed a copyright infringement suit against acclaimed film director James Cameron alleging that the latter’s film, Avatar has copied certain elements from his artwork.
A district court held the claims of the artists as ‘misguided’ and dismissed the suit.
Marvin Gaye Estate v. Robin Thicke and Pharrell, and T.I. (2018)
In 2013, the estate of Marvin Gaye sued singer Robin Thicke and Pharell Williams along with the featured rapper T.I. for the song “Blurred Lines” alleging copyright infringement of Gaye’s 1977 song “Got to Give It Up.”
The defendants were initially ordered to pay approximately $7 million dollars by a district judge.
Later, on appeal the compensation amount was reduced but the ruling of copyright infringement was upheld.
Google LLC v. Oracle America, Inc. (2021)
This is an important case regarding the copyrightable nature of computer codes spanning over more than a decade.
Oracle owned the copyright of Java SE, a programming language. In 2005, after acquiring Android, Google built a new software platform to use in mobiles. To achieve this in the new Android platform, Google roughly copied approximately 11,500 lines of code from the Java SE program. In 2010, Oracle filed a suit against Google for copyright and patent infringement.
After more than a decade, the US Supreme Court in 2021 ruled in a 6-2 majority that the usage was within the boundary of fair use.
Unicolors, Inc. v. H&M Hennes & Mauritz, L.P. (2022)
In this case, Unicolors, the owner of copyrights in various fabric designs, filed a suit against H&M Hennes & Mauritz (H&M), a reputed clothing retailer and designer on the ground of copyright infringement. The US Supreme Court held that the provision of safe-harbouring protects a misrepresented or inaccurate information due to the lack of legal knowledge on behalf of the applicant and remanded the case.
Conclusion
The US Supreme Court has recognised copyright as an “engine of free expression”. Copyright acts as a shield to the creator by granting certain rights and freedoms including commercialisation. Copyright protects the expressive content of the work, not the underlying thoughts and ideas. There are still many gaps in the case laws which make the interpretation of copyright law fairly complicated.
Frequently Asked Questions (FAQs)
What is copyright?
Copyright is a type of intellectual property that protects creative works. It is an intangible right granted to the creator of the work.
What are the basic requirements to get copyright?
Firstly, the work must be independently created by the person.
Secondly, it must have a minimal amount of creativity.
Thirdly, it must be fixed in any tangible medium.
What are the basic principles of copyright?
The three basic principles of a copyright-protected work are:
Originality, ingenuity and incentive.
What exclusive rights does copyright give an individual?
The copyright broadly provides two types of rights:
- economic rights, which allow the rights owner to get financially benefited from the use of the works and
- moral rights which protect the interests of the creator such as the right to claim a copyrighted work and the right to protest changes to a work which could harm or distort reputation.
What can be protected using copyright?
Any creative works with originality and uniqueness can be protected under copyright.
What is the © symbol?
The © symbol indicates that copyright has been claimed on the particular work. It symbolises that work is protected by copyright and all rights are reserved to the creator or an authorised person.
If a dramatic work may include music, will the music be entitled to a separate copyright?
Even if the music forms an integral part of the dramatic work, it shall be entitled to a copyright protection separately as a musical work.
Does a photograph enjoy copyright protection?
An originally clicked photograph is entitled to copyright protection. This fact was also established in the landmark case of Rogers v. Koons (1992).
Does a remake of a foreign language film enjoy the same protection as the original version of the film?
A remake of a foreign language film is a derivative work and even when authorised to remake the film, in order for your remake to enjoy the same protection as the original version of the film, it must display some originality of its own.
What is DRM in copyright?
DRM (Digital Rights Management) comprises a set of technical and legal instruments that allow copyright owners to manage the access to their works, establish the types of permissible uses, terms and conditions of such uses and the eventual distribution of their works in the digital world.
Which law governs copyright in India?
Copyright in India is governed by the Copyright Act 1957.
References
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