This article is written by Chayan Bhattacharya, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
We all use copyrights in our daily life. Whenever we are reading books, watching movies, listening to music, playing video games, or using any software, we are using copyright-protected works.
Even though we are not the owner of the original work, we are using it without any authority. There are different ways of obtaining authority to use a copyrighted work. It can be purchased or a license to use can be taken from the owner. Along with these, there are some other ways of seeking permission to use the work such as using the exceptions and limitations of the Copyright Act.
One can use the copyrighted works which are in the public domain even without permission. Works in the public domain are those that are not protected by the Copyright Act, discoveries, facts, or any works whose term of protection has ended either because it expired or the owner did not satisfy the required conditions. At present, all the pre-1926 works are in the public domain because copyright protection has expired for those works.
What is copyright?
According to the Copyright Act, 1976, copyright is defined as a bundle of rights which includes, among other things, rights of reproduction, communication to the public, adaptation, and translation of the work. Copyright is a right given by the law to creators of literary, dramatic, musical, and artistic works and producers of cinematograph films and sound recordings.
What rights does copyright provide?
The copyright law in the U.S provides the owners with the following exclusive rights:
• The right to distribute copies to the public by sale or another form.
• The right to publicly perform the work.
• The right to reproduce and make copies of an original work.
• The right to publicly display the work.
• The right to perform sound recordings publicly through digital audio transmission.
• The right to prepare derivative works.
The distinction between “idea” and “expression” is key to copyright law. Thus, the Copyright Law protects the “expression” of thought but doesn’t protect the “idea” itself. This distinction is termed the idea-expression difference of opinion from the Copyright Act of 1976.
So the copyright protection for an inventive work of authorship extends to any idea, procedure, process, system, method of operation, concept, principle, or discovery, no matter any form during which it’s described, explained, illustrated, or embodied.
Who can claim copyright?
The inventor/author (s) who created that work, it belongs to him. There are two situations in which work may be hired:
1. When the work is created by an employee as part of the employee’s regular duties,
2. When an individual and the hiring party enter into an express written agreement that the work is to be considered a “work made for hire” and the work is specially ordered or commissioned:
• Use as a compilation,
• Use as a contribution to a collective work,
• Use as a part of a motion picture or other audiovisual work,
• Use as a supplementary work,
• Use as an instructional text,
• Use as a translation,
• Use as a test,
• Use to answer the material for a test,
• Use as an atlas.
What is not protected by copyright?
The copyright of the following works are not protected under the copyrights act:
• Any processes, concepts, ideas, procedures, methods, systems, principles, or discoveries.
• A mere listing of ingredients or contents.
• Any works that are not fixed in a tangible form – such as a choreographic work that has not been recorded or an improvisational speech that has not been written down anywhere.
• Any short phrases, slogans, titles, and names.
• National Emblem.
• Common/familiar symbols or designs.
• Different or Mere variations of typographic ornamentation, lettering, or colouring.
How long does copyright last?
Copyright for a specific job or innovation depends on various factors, whether it’s been published or not, and, if so, then the date of first publication. The term of copyright starts from the lifetime of the author plus seventy years after the death of the author. Works created or invented on or after January 1, 1978, if the work could be joint work with several authors or persons, then the term of copyright lasts for seventy years after the death of the last surviving author or person. For works made for hire and unidentified or fictitious works, the duration of copyright is 95 years from publication or 120 years from the creation whichever is earlier.
Any works created before January 1, 1978, which work wasn’t published or registered as on its date, the term of copyright is mostly the identical as for works created on or after January 1, 1978. The law, however, provides that the term would have expired before December 31, 2002, and if the work was published on or before that date, the term won’t expire before the 31st day of December 2047
Why is copyright law important?
Copyright law has its dual role. It encourages creativity, and innovation as well as enables the owner/producers of the work financially. Copyright laws enable authors to benefit from their creative work and foster innovation. It provides exclusive rights to authors to protect their work for a limited period but it was also established to promote creativity and learning. Thus copyright is the engine of progress.
What are the different types of copyright?
The different types of works protected by copyright are as follows:
- Artistic works.
- Musical works.
- Cinematograph films.
- Literary works.
- Dramatic works.
- Sound recordings.
- Architectural works
The “original works of the author or the person,” are copyright protected under the Copyright Act in the United States. The United States Copyright law is fixed and in a tangible medium, which includes literary, dramatic, musical, artistic, and other intellectual works. Copyright protection is available to both published and unpublished works. The copyright law includes the following:
- Musical works.
- Choreographic and pantomime works.
- Sculptural, pictorial and graphical works.
- Dramatic works.
- Audio-visual works.
- Sound recordings works.
- Literary works.
- Derivative works.
- Compilation works.
- Architectural works.
What are the 4 stages in protecting copyright?
There are four simple steps one can take.
- Ensure your work is properly marked.
- Register your work.
- Keep or register supporting evidence.
- Agreement between co-authors.
Ensure your work is properly marked
A notice will prevent infringement, as it states that the work is protected under law. Although a copyright notice is not required, as work is automatically protected under copyright protection law, A proper notice will show that someone has an awareness of copyright law and takes the infringements of work seriously.
Register your work
To register for copyright, one needs to go to the eCO Online System and create an account, and then fill out the online form with some basic fees.
Keep or register supporting evidence
Those are as follows:
- Evolution of ideas,
- Footprints or watermarking.
Agreement between co-authors
Who will be the owner of the copyright, if the work is a joint venture and what will be the status of the owner when someone leaves. This is decided by the mutual agreement between them.
Registration procedure
Even though registration of copyright is not compulsory, it is preferred for several reasons. Many prefer to register just because they wish to have a certificate of registration along with the facts of their copyright on the public record. Registered copyrighted works are also eligible for statutory damages and attorney’s fees incurred in the process of the litigation after success. Last but not the list, if registration occurs within five years of publication, it is considered prima facie evidence of ownership in a court of law.
When it meets the basic requirements, copyright is automatically vested to the author of an original work. Registration is not required. However, registration significantly enhances all the rights of the holder’s relating to copyrights in several ways. Registration is necessary before a lawsuit is filed, and registration increases the possibility of amounts of “statutory” damages received in case of copyright violation.
According to Section 107 of the Copyright Act, 1976 following are the examples of fair use:
- Teaching,
- News reporting,
- Scholarship
- Research
- Comment,
- Criticism.
But it is subject to the discretion of the courts to consider based on these four factors whether a particular use is fair or not:
- Purpose and character of the use.
- Nature of copyrighted work.
- Amount and substantiality.
- Effect on the potential market.
Conclusion
To cope up with the latest technological development and to achieve the social, economic and cultural goals, the United States has come across a very significant task of upgrading and updating its copyright laws.
References
- https://copyright.gov.in/documents/copyrightrules1957.pdf
- https://www.copyright.gov/fair-use/more-info.html
- https://www.bitlaw.com/copyright/index.html#:~:text=Copyright%20law%20in%20the%20U.S.,ideas%20contained%20within%20a%20work
- https://www.misericordia.edu/uploaded/documents/library/services/fairuse.pdf
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