BeaconLegal

It is the monopoly conferred by law to the author or owner of a work to have exclusive rights to do certain acts. Copyright seeks to strike a balance between the interest of society for free flow of information and development on the one hand and that of the author / owner of a work on the other. Copyright is the reward to the owner for his/her time, labour and skill in development of a work.

What is Copyleft?

It is a movement wherein the author of the work does not claim any monopoly on the work and allows any person to use / exploit it without paying any fee. Linux operating system is an example.

Is registration of Copyright possible?

India being a member of the Berne Convention on the protection of property 1954, registration of copyright is not compulsory. Copyright can be registered with the Registrar of Copyright.

What are different kinds of Copyright work?

Copyright work is broadly classified into literary, dramatic, musical, artistic work, sound recording and cinematograph film. All these work can be registered under the Act. A literary work includes computer software, programmes, tables and databases.

What is artistic work?

A painting, engraving, photograph, drawing or a work of architecture irrespective of its merit is an artistic work.

What is musical work?

It means a work constituting of music and includes any graphical notation of such work.

What is cinematograph film?

It means any work of visual recording on any medium from which a moving image may be produced and includes a sound recording accompanying such image. It includes a VCR, CD or DVD.

What acts constitute copyright in a literary, dramatic or musical work?

In a literary, dramatic or musical work, copyright implies the exclusive right to reproduce it in any material form, to issue copies of the work to the public, to perform the work in public or communicate it to the public, to make any cinematograph film or sound recording of the work, to make an adapation or translation of the work.

What acts constitute copyright on computer software?

In addition to the above rights of literary work, copyright in computer software confers right to sell or give on commercial rental or offer for sale a copy of the computer programme.

What acts constitute copyright in artistic work?

Copyright implies exclusive rights to reproduce the work in any material form including depicting in three dimensions of a two dimensional work or in two dimensions of a three dimension work, to communicate the work to public, to include the work in any cinematograph film, to make any adaptation of the work.

What constitute copyright in Cinematograph film?

It implies exclusive right to make a copy of the film including a photograph of any image forming part of it, to sell or give on hire any copy of the film and to communicate it to the public.

What constitutes copyright in a sound recording?

It implies exclusive right to make another sound recording embodying it, to sell or give on hire copies of the work and communicate the work to public.

What is adaptation of a work?

In relation to a dramatic work it means converting it into a non-dramatic work, for eg. converting a drama into a book. In relation to a literary work, it means converting it into dramatic work. In relation to both of the above converting it in a form, where the book or drama is expressed in pictures.

Does copyright protect ideas?

Copyright protects the manner of expression of ideas and not the idea per se. For eg. A person can only claim protection of the language/expression in the story but not the moral or story line per se. This has been the subject of considerable debate in many cases and courts have strained to draw the line between idea and expression. In the case of computer software, Courts have held that if a particular function can be performed by using different sequences in a similar programme, then a person will infringe the right of owner only if it makes an identical sequence / expression. If on the other hand, the sequence is the only way to perform a programme, then it will not be an infringement, if another person uses the same programme. Courts have also applied the 'look and feel' test in the case of websites to hold that two websites appear to be similar.

Who is first owner of work?

In the case of artistic, literary, dramatic or musical work, the author is first owner of the work. In the case of development of a work by more than one person, it is work of joint authorship. When any of the aforesaid work is developed in the course of employment, subject to anything to the contrary, the employer is the first owner of the work. If the above works are developed in lieu of payment of consideration by another person, then that person is first owner of the work. If any of the aforesaid work is part of a cinematograph film, then producer of the film is owner of the work. In the case of a Government undertaking, the Government is first owner of the work.

What is the procedure for Copyright Registration?

An owner of work may file an application before the Registrar of Copyright on FORM IV, with two copies of work in the un-published and one copy of work in the case of published work. On examination of application, if any defect is found, the Registrar may call for clarifications. If the application is in order, a certificate of Registration is issued. In the case of an artistic work, which is capable of used on an article as a trademark, a certificate from the Registrar of Trademarks, to the effect that no similar mark is pending or registered is also to be accompanied with the application.

How long is a copyright registration valid?

Once registered, the registration is valid for the full term of the copyright. There is no requirement of renewal. What is the value of copyright registration? A registration is prima facie evidence of the entries made therein. An extract from the Registrar showing its registration is an admissible evidence of the particulars therein. It is in the nature of a rebuttable evidence.

What is the term of Copyright?

In the case of published literary, dramatic, musical and artistic work, copyright shall subsist until sixty years from the date of death of author. In the case of photograph, cinematograph film or sound recording, copyright subsists till sixty years from the date of its publication.

Is the decision of Registrar of Copyright final?

An appeal against any order of Registrar of Copyright can be filed before the Copyright Board. The Board also has original jurisdiction in the case of grant of compulsory license, revocation / cancellation of registration, fixing of royalty between owners and users etc

What is Copyright Board?

It is an authority constituted by the Central Government constituting of a Chairman and not less than two members. The Chairman shall be a person who is qualified for appointment as a High Court Judge. Apart from hearing an appeal against the order of Registrar of Copyright, the Board has certain other functions discussed later.

What are Copyright Societies?

It is a society / association of the owners of different copyright work. It is subject to the collective control of owners. The societies administer various rights of the owners of the work. They grant licenses on behalf of the owner and collect royalties. The royalties are passed on the owner of the work. The societies continuously monitor and look out of unauthorized use of any work and seek legal recourse against any such unauthorized use. In India, PPL and IPRS are two famous societies managing the rights of performers and producers respectively. No society can grant licenses unless it is registered under the Copyright Act. An application should be made before the Registrar of Copyright, along with the bye-laws for administration of such society, who shall forward it to the Central Government.

Can Copyright be sold?

Copyright can be assigned only in writing. It can also form part of will. In an assignment, one should identify the work, duration of assignment and the territorial extent of such sale.

Can Copyright be licensed?

Yes, copyright can be licensed to another person by the owner. In practice, most of the computer software are issued by license and are not outright sale.

Do Broadcasters have any right on the broadcasting made by them?

A Broadcasting organisation has a special right known as Broadcast Reproduction right, which subsists for twenty - five years from the year of first publication. This right confers exclusive rights on the broadcaster to re-broadcast the broadcast, cause the broadcast to be seen or heard by the public, make any sound or visual recording of the broadcast and let it on hire.

What is performers right?

Where a performer appears or engages in any performance, he shall have a special right known as performer's right. This shall subsist till fifty years from the year of performance. This right confers on the performer exclusive right to make a sound or visual recording of the performance, reproduce the same, broadcast the performance or communicate the performance to the public through any medium. However, if a performer consents to incorporate his performance in a cinematograph film, all the above rights vest in the producer of the film.

What remedy does a person have if a work is withheld from public?

With respect to any Indian work which has been published or performed in public and its owner refuses to re-publish the same or perform it in public or refuses to communicate it to public by broadcast on terms which the complainant thinks unreasonable, a complaint can be made to Copyright Board for issue of compulsory license to the complainant. The Board shall issue notice to the owner of the work and after inquiry may grant compulsory license subject to payment of compensation to the owner by the applicant. A compulsory license can be issued, on an application, in the case of un-published Indian work in which the author is not found or dead. If the author is not found then the Board may direct deposit of royality in a general public fund. The Central Government may in public interest direct legal heirs to publish a work.

What is infringement of Copyright?

If any person does any act, without the permission of the owner of work, the exclusive right to do is vested in the owner of the work or permits any place to be used for communication of the work or makes or sells such work, it is infringement of Copyright.

Does every use of a copyright work without the owners consent amount to infringement of copyright?

The Copyright Act provides certain acts, which will not amount to infringement of copyright. Some of the acts include, fair dealing with a literary, dramatic, musical or artistic work for the purpose of private use including research or for criticism or review of the work or reporting current events in newspaper or broadcast. Reproduction of a work as part of judicial proceeding or Legislature. Reproduction of aforesaid work by a teacher or a pupil in the course of instruction. Performance of the above works as part of activities of an educational institution if the audience is limited to the staff and students or by an amateur club or society to a non-paying audience. The performance of a literary, dramatic or musical work in the course of a religious ceremony, which includes a marriage ceremony. What are moral rights? The author of a work has a right that his work is treated in a fair manner and it constitution is not changed to an extent that it is detrimental to its character. This right survives even after sale of a work. However, the author can assign his moral right as part of an assignment.

How can a copyright owner enforce his rights?

CIVIL ENFORCEMENT: A copyright owner can file a civil suit seeking injunction against the unauthorized use or reproduction of his work or similar works. The owner can seek damages for infringement of his rights and rendition of accounts. In addition, the owner can pray for seizure of the infringing work, accounts and the equipment used for creating those infringing work.

CRIMINAL ENFORCEMENT: Infringement of Copyright is punishable with imprisonment upto two years and fine. Copyright owner can file a complaint before the magistrate or a Police Office, not below the rank of Inspector of Police against such use of infringing work. The Police has the power to seize infringing copies of the work, equipments used for the purpose and arrest the infringers, without warrant. Different State Police have special 'economic offences wing', which is assigned the task of enforcing by seizing the infringing goods and arrest the culprits.

CUSTOMS: A copyright owner can file application before the Registrar of Copyright who in turn would request Custom officials to stop importation of infringing works. A person can directly lodge a complaint before the Commissioner of Customs providing information about the pirated goods, the details of importer to enable it to seize infringing goods.

Does works published out of India get any protection in India?

On the basis of reciprocity, Central Government has by Copyright Control Order 1999, published list of countries where the provisions of Copyright Act has been extended. All works published in those countries are considered as works published in India, authors of such Countries will be give same treatment as that to an Indian citizen. Government has also extended the Broadcasting reproduction rights to the above countries, if any work was broadcast from the listed countries or any performance was made in those countries.

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