2.overview copyrights

8/12/2019 2.Overview Copyrights

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1

An Overview of Copy-rights

-Dr .P. Sree Sudha.


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Literary

Films

Dramatic

Musical

Sound Recording

Artistic

Copyright Act, 1957


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Copyright protection is conferred on all Originalliterary, artistic, musical or dramatic,cinematograph and sound recording works.Original means, that the work has not beencopied from any other source. Copyrightprotection commences the moment a work iscreated, and its registration is optional.However it is always advisable to obtain aregistration for a better protection. Copyright

registration does not confer any rights and ismerely a prima facie proof of an entry inrespect of the work in the Copyright Registermaintained by the Registrar of Copyrights.As per Section 17 of the Act, the author orcreator of the work is the first owner ofcopyright. An exception to this rule is that, theemployer becomes the owner of copyright incircumstances where the employee creates awork in the course of and scope of employment.

.


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Copyright registration is invaluable to acopyright holder who wishes to take acivil or criminal action against the

infringer. Registration formalities aresimple and the paperwork is least. Incase, the work has been created by aperson other than employee, it would benecessary to file with the application, a

copy of the assignment deed


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One of the supreme advantages of copyrightprotection is that protection is available in

several countries across the world, althoughthe work is first published in India by reasonof India being a member of Berne Convention.Protection isgiven to works first published inIndia, in respect of all countries that are

member states to treaties and conventions towhich India is a member. Thus, withoutformally applying for protection, copyrightprotection is available to works first publishedin India, across several countries. Also, the

government of India has by virtue of theInternational Copyright Order, 1999,extended copyright protection to works firstpublished outside India.


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Copyright law protects expressions of ideasrather than the ideas themselves. Undersection 13 of the Copyright Act 1957,

copyright protection is conferred on literaryworks, dramatic works, musical works, artisticworks, cinematograph films and soundrecording. For example, books, computerprograms are protected under the Act asliterary works.Copyright refers to a bundle of exclusiverights vested in the owner of copyright byvirtue of Section 14 of the Act. These rightscan be exercised only by the owner ofcopyright or by any other person who is dulylicensed in this regard by the owner ofcopyright. These rights include the right ofadaptation, right of reproduction, right ofpublication, right to make translations,communication to public etc.


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ARTISTIC WORKS

A painting,sculpture,drawing,

engraving,.whether ornot possessingartistic quality

Any other work ofartisticcraftsmanship


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WHAT IS COPYRIGHT?

Right to reproduce

Right to publish

Right to perform or communicate to public

Right to make film or sound recording

Right to make translation or adaptation


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What is Copyrighted

Anything tangiblein a fixed form

Examples

Literary works, including software

Musical works, including accompanyingwords

Dramatic works, including accompanyingmusic

Pantomimes and choreographic works

Pictorial, graphic and sculptural works Motion pictures and other audiovisual works

Sound recordings

Architectural works


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What is not Copyrighted

Works that have not been fixed in a tangible form ofexpression; for example, improvisational speeches orperformances that have not been written or recorded.

Titles, names, short phrases and slogans; familiar symbols

or designs; variations of typographic ornamentation,lettering or coloring; listing of ingredients or contents.

Ideal procedures, methods, systems , processes,concepts, principles, discoveries, or devices, asdistinguished from a description, explanation or illustration.


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Following WORKS are protected under Copyright

Artistic

Literary

Musical

Cinematographic films (e.g. video films)

Sound Recording (e.g. audio tapes and compact discs)

WHAT IS PROTECTED


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Indian perspective on copyrightprotection:

The Copyright Act, 1957 provides

copyright protection in India. It conferscopyright protection in the following twoforms:

(A) Economic rights of the author, and(B) Moral Rights of the author.


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Economic Rights: The copyright subsists inoriginal literary, dramatic, musical andartistic works; cinematographs films andsound recordings. The authors of copyright inthe aforesaid works enjoy economic rights u/s14 of the Act. The rights are mainly, inrespect of literary, dramatic and

musical,

other than computer program, to reproducethe work in any material form including thestoring of it in any medium by electronicmeans, to issue copies of the work to thepublic, to perform the work in public or

communicating it to the public, to make anycinematograph film or sound recording inrespect of the work, and to make anytranslation or adaptation of the work


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Moral Rights: Section 57 of the Actdefines the two basic moral rights of

an author. These are:(i) Right of paternity, and(ii) Right of integrity.

The right of paternity refers to a rightof an author to claim authorship of workand a right to prevent all others fromclaiming authorship of his work. Right ofintegrity empowers the author to prevent

distortion, mutilation or other alterationsof his work, or any other action inrelation to said work, which would beprejudicial to his honour or reputation.


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Infringement of copyright

Restricted activity

Primary infringement Secondary Infringement

Causal connectionSubstantial copy

Facilitate infringement Dealing infringement

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Limits of permitted use Provision relating to permitted use of copyrighted work has been

laid down under section 52 of the copyright Act,1957 in the form of fair

dealing. In America it is known as Fair use". It is an exception toinfringement of Copyright. The object of fair dealing is to enable the

reproduction of the work to retain public purposes for encouragement of

private study and research and promotion of education. It provides

defenses in an action for infringement of copyright.

Fair dealing is an important concept in Indian copyright law.

However, despite its importance in the copyright regime and the

importance of the copyright regime to advancement of technology. the

concept remains relatively unexplored in India. It is integral part ofcopyright law. Fair dealing doctrine is akey part of the social bargain at

the heart of copyright law, in which as a society we concede certain

limited individual property rights to ensure the benefits of creativity to a

living culture

..

.Its object is to balance between authors right andpublic interest.16


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Fair Dealing in Other Countries

United Kingdom

Australia

Canada

New Zealand

Singapore

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International treaties/convention on permitted use

Berne Convention:-Three step test was devised forlimitation and exception for reproduction.

-It should be granted in certain special cases

-It should not conflict with the normal exploitation of

the work-It should not unreasonably prejudice the legitimate

interest of the author

TRIPS Agreement:-Three step test extended to all

exclusive rights conferred by copyright

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WIPO Copyright Treaty,1996

use for the sole purpose for teaching and

research

quotation for criticism or review

use for reporting current events

use for judicial procedure.

use for visually and hearing impaired

people19


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Basic principles of fair dealing

The purpose and character of the secondary use.

Nature of copyright work.

Amount and substantiality.

Effects on the market.

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Fair dealing u/s.52 of Copyright Act

Private use, includingresearch

Criticism or review of thatwork or ..

Reporting current events

in a newspaper, For judicial proceeding

For legislature work

For certified copy made

under any law For reading in public

Use for education course

Amateur club and society

For current topic inperiodical

For use of libraries

Reproduction of

unpublished work For official

gazette,judgement of courts

Adaptation

Making sound recording incertain cases

Performance of a work inofficial ceremony


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Other significant FAIR USE exception notprovided under the Act

For cinematograph film and sound recording

-No provision for research, teaching and private study

-No provision for reproduction in the course of a judicial

proceeding

-version recording or sound alike recording

No provision for archival use of literary, dramatic and musicalwork by a librarian or archivist

No provision for using of literary, dramatic, musical, artistic workfor charitable purpose

The Act overlooks the needs of the visually challenged section ofsociety

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International Copyright

Protection Copyright protection rules are fairly similar worldwide,

due to several international copyright treaties, the

most important of which is the Berne Convention.Under this treaty, all member countries -- and there

are more than 100, including virtually all industrialized

nations -- must afford copyright protection to authors

who are nationals of any member country. This

protection must last for at least the life of the author

plus 50 years, and must be automatic without the

need for the author to take any legal steps to preserve

the copyright.


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International Copyright

Protection In addition to the Berne Convention, the

GATT (General Agreement on Tariffs

and Trade) treaty contains a number of

provisions that affect copyright protectionin signatory countries. Together, the

Berne Copyright Convention and the

GATT treaty allow U.S. authors to

enforce their copyrights in mostindustrialized nations, and allow the

nationals of those nations to enforce

their copyrights in the U.S.


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Indian Judiciary Response:

The response of Indian judiciary regardingcopyright protection can be grouped under the

following headings:(1) Ownership of copyright,

(2) Jurisdictional aspect,(3) Cognizance taken by the court,(4) Infringement of copyright,(5) Availability of alternative remedy, and(6) Rectification of copyright.

(1) Ownership of copyright: The ownership incopyright may vest in different persons underdifferent circumstances.


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Copyright Infringement:

Direct Infringement: Direct infringement is a strictliability offence and guilty intention is not essential tofix criminal liability. The requirements to establish acase of copyright infringement under this theory are:(1) Ownership of a valid copyright; and

(2) Copying or infringement of the copyrighted workby the defendant.Thus, a person who innocently or even accidentallyinfringes a copyright may be held liable under theCopyright Act of the U.S. and under the laws ofvarious other countries. The guilty intention of the

offender can be taken into account for determiningthe quantum of damages to be awarded for thealleged infringement.


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Contributory infringement: The contributory infringementpre-supposes the existence of knowledge andparticipation by the alleged contributory infringer. Toclaim damages for infringement of the copyright, theplaintiff has to prove:(1) That the defendant knew or should have known of theinfringing activity; and

(2) That the defendant induced, caused, or materiallycontributed to another persons infringing activity.Vicarious Infringement: Vicarious copyright infringementliability evolved from the principle of respondent superior.To succeed on a claim of vicarious liability for a direct

infringersaction, a plaintiff must show that the defendant:(1) Had the right and ability to control the direct infringersactions; and(2) Derived a direct financial benefit from the infringingactivity.


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Internet and copyright infringement theories: The adventof information technology has made it difficult to applythe traditional theories to various cyberspace entities andorganizations. These cyberspace players can be groupedunder the following headings:(1) Internet Service Providers (ISPs),(2) Bulletin Board Services Operators (BBSO),(3) Commercial Web Page owner/operators, and(4) Private users.


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Cases on permitted use

Hubbard v. Vosper(1972)2 QB 84(CA)

Wiley Eastern ltd and Ors v. IIM

(1995)PTC375

Gramophone co. of India ltd. V. Supercassette industries ltd.(1995)PTR64

Eastern Book Company v. Navin J

Desai(2001)PTC57(Del) ESPN Stars Sports v. Global Broadcast News

ltd andOrs.2008(36)PTC(Del)

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Amendments proposed in 2010 relating topermitted use

The making of three dimensional objects fromtwo dimensional artistic works such as a

technical drawing

Provision relating to storing of any work in anyelectronic medium

Provision relating to reproduction of

cinematograph film and sound recording in

respect of judicial proceeding, legislature.. Provision for disabled person of society

other significant provision for the interest of

public 30


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Unfairness in the fair use exception

There has not been any challenge to the Act before any judicialauthority in India till date relating to the adequacy of the fair use

provisions in view of the public interest in accessing the protected

works. Most of the decided cases relating to fair use in India have

raised the issue whether a particular use of a work amounts to fair use

under the Act.

The object of this section is to protect the public interest in

accessing the information contained in these works can not be

achieved if fair use provision are not adequate while the proposedamendments in 2010 attempt to restore the current imbalance that

exist in the Act.

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Copyright - Digital Medium

Every accessible or published material on the

Internet is a 'copyrightable" work.

Protection is provided to all written text materials

graphic images, music and videos Graphic User Interface of a website also enjoys

Copyright protection

Insertion of sec.65A and 65B proposed byCopyright (Amendment)Bill,2010 will defeat the

concept of fair dealing


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Digital rights management andCopyright

It is part of WIPO Copyright treaty

It protects copyright on internet like film, music,

computer games, E-books..

It is against the public interest

It is against the concept of fair dealing

By Copyright (Amendment) Bill, 2010 it is going to

be introduced under copyright Act, 1957

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Suggestion on fair dealing forprotecting public interest

It must be dynamic in nature DRM should not be incorporated in our Act

There is need to evolve our own jurisprudence

according to need of our society

We need another R.G.Anand judgment

Judiciary must be given chance to interpret sec.

52 for balancing authors interest and public

interest

It must not be read as merely defenses of an

action for infringement of copyright rather it should

be read in respect of public interest

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Conclusion In conclusion it can be said that fair dealing doctrine is

the heart of copyright law. Its object is to balance publicinterest in respect of copyrighted work and legislature istrying to balance between public interest and individualinterest by amending section 52 time to time.

Lastly I would like to conclude by saying that, It isopportune for India to consider emulating the internationalcopyright practice to accommodate certain widely

recognized exception to enrich our copyright jurisprudenceand keep it abreast with international practice

Thanks! Always honour the IP

Thanks ! Always honour the IP


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