copy rights i

8/12/2019 Copy Rights I

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Copyright is a right given by the law to thecreators of literary, dramatic, musical andartistic works and producers of cinematographfilms and sound recordings.

Copyright Subsists in original literary dramatic musical and artistic works Cinematograph films Sound recordings

Copyright in a cinematograph film or soundrecording is separate from the copyright in thework from which they are made

Copyright ensures certain minimum safeguardsof the rights of authors over their creations,

thereby protecting and rewarding creativity.


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Copyright law protects the expression of anidea. Not the idea itself.

Copyright protects original works of authorship fixed in any

tangible medium of expression, now known orlater developed, from which they can be

perceived, reproduced, or otherwisecommunicated, either directly or with the aid of amachine or device. (17 U.S.C. 102)


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In respect of literary, dramatic or musical work, not being a computerprogram, the exclusive right to

reproduce the work in any material form including storing of it in any medium by electronic means

issue copies of the work to the public not being copies already in circulation (Expln: A copy once sold shall be deemed to be a copy in circulation)

perform the work in public, or communicate the work to the public make a cinematograph film or sound recording

right to make any translation right to make any adaptation In respect of a translation or an adaptation of a work, right to perform any

of the exclusive rights for literary or dramatic work In the case of a computer program

to do any of the acts in respect of a literary work To sell or to give on commercial rental any copy of the computer program

Right to commercial rental does not apply in respect of computer programs where theprogram itself is not the essential object of the rental


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Communication to the public means makingany work available for being seen or heard orotherwise enjoyed by the public directly or bymeans of any of display or diffusion otherthan by issuing copies of such work of suchwork regardless whether any member of the

public actually sees, hears, or otherwiseenjoys the work so made available


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Section 13- Works in which Copyright Subsists In the case of literary dramatic musical and artistic

works the work has to be original In the case of a work of architecture, copyright shall

subsist only in the artistic character and design andshall not extend to the processes and methods ofconstruction


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Definition of Copyright Copyright law grants authors, composers, software writers, website

designers, and other creators legal protection for their literary andartistic creation, referred to as works

Copyright protects a wide variety of original and/or creativeexpressions, such as novels, poetry, music, paintings, photographs,sculptures, architecture, films, computer programs, video games,

original databases, etc. The rights granted enables the copyright owner, within a specified

period of time: to control the use of his work in a number of ways to receive remuneration

Defined : rights in original intellectual creations in the fieldsof art, literature, music or science that have been fixed in atangible medium for the purpose of communication.

"Original intellectual creations" (or "works") that the author has"infused with creativity."


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Fair Play : Reward creative efforts. Thou shall not steal

Exclusive rights for limitedtime N egative right:prevent copying/reproduction

Copyright is necessary encourage dissemination ofcopyrighted works = public interest


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Indian copyright law similar to England& Wales. First Copyright Act in England(and the world)

1709 Statute of Anne.


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First Act in 1790: did not protectforeign authors

Indigenous American literaturesuffered

Today: Copyright Act 1976 one

of the major copyright laws inthe world


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Copyright protection as a legal system arose with invention ofprinting press

Philosophy: Fruits of mans labour should be protected, evenif it is intellectual creation

Eg., in the literary field, by giving the author sole rights over his book Tries to balance the public interest in accessing the works and

authors interest Rights Granted:

A negative right: right to prevent others from doing the excusive acts Economic and moral rights

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Most important international treaty on copyright is the

Berne treaty for the protection of literary and artistic works If you are a national or a resident of a country party to the

Berne Convention, your work will automatically enjoy the

level of protection granted in the Berne Convention in allcountries that are party to the Convention However, as copyright protection remains territorial, your

copyright work has to satisfy the requirements of thecopyright law where you seek protection

How many signatories are there to the Berne Convention?


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There is no formal procedure to put the notice on your work, however it isstrongly advisable to remind people that the work is copyrighted and identifiesthe copyright owner

Assists those who may want to obtain your prior permission A cheap and cost-effective safeguard A copyright notice general consists of:

The word copyright or the copyright symbol ; The name of the copyright owner; The year in which the work was first published; and The words All Rights Reserved

Example: Deepak Pillai 2006 2011. All rights reserved


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It is the product of the labour, skilland capital of one man which mustnot be appropriated by another . ( -per Lord Atkinson, Macmillan vCooper AIR 1924 PC 75)


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Copyright in form or expression, not in idea:There is nothing in the notion of copyright toprevent a second person from producing an

identical result...(Gregory CommitteeReport, 1952, para 9)

Copyright only in material form principle offixation


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Original Literary, Dramatic, Musicaland Artistic Works

Cinematograph Films Sound Recordings


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Novels, poems, short stories Books on any subject

Computer programmes,tables, computerdatabases

Song lyrics


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Includes Programme Manuals

Punched Cards Magnetic Tapes/Discs Computer printouts Computer programmes


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Work in the biotech industry involvingcopyrightable subject matter:

Modification of genes of plants, animalsTo identify causes of diseasesTo make assays for the testing of various

diseasesManufacture of vaccines


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1980s/1990s: scholars proposed thatbiotechnology work = copyrightable

Copyright as alternative to patent law Diamond v Chakraborty : 447 US 303

(living organisms patentable) Practical problems prevented grants Computer industry successfully

lobbied for amendment of 1976Copyright Act


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Facts lack originality

Doctrine of merger and non-equivalence of DNA/computerprogrammes

Utilitarian prohibitions


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The work concerned has to be Original Work of authorship Fixed

In the United States, Congress intendeda

wide reading of the term literary works


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Genetic Sequences are strings of symbols of the nucleotides of DNA

DNA sequence containing codedgenetic information for the synthesis of

particular protein = applicationprogramme of a computer


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Combining various elements of DNAconstitutes a compilation: involvesassembling of pre-existing materials

Selection and arrangement ofsequence elements are

copyrightable


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Patents confer monopolies and excludecompetitors from conducting research

Can offer rewards disproportionate to risk:Genentech Incs Patent [1989] RPC 147, CA

Public interest would be injured if everycorporation could patent anytime, anywhere.Without them, corporations may lack incentive toconduct research

No guarantee for independent researchers thattheir efforts will pay off


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Despite conferral of a monopoly,usually another option available:Copyright could be an option in cases

without inventiveness

Advantage of copyright system: no

ban on creation of genomes, merelyroyalties; licensing schemes can beregulated.


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Based on these, there is copyright inseemingly arbitrary instances of letters

Anderson & Co v Lieber Code Co [1917] 2 KB 469

Ager v Peninsular and Oriental SteamNavigation Co. (1884) 26 Ch D 637

Ager v Collingridge (1886) 2 TLR 291 Express Newspapers plc v Liverpool

Daily Post and Echo plc [1985] FSR 306


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Work may be original, even if derivedfrom previous material, providedfurther independent skill, useful labour,

knowledge or judgment have beenbestowed on its creation

Even if nature of subject matter canlead competent author with onesolution: Walter v Lane [1900] AC 539


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BOOKS:1. Rights of the author2. Rights of the publisher

in India and abroad3. Rights of a person

publishing the book on CDRom/multimedia format

4. Rights on the Internet

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MUSIC:

1. Right of lyricist2. Music director

3. Singer4. Orchestra

5. Music company

6. Version recordings

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Machinery

This can be sub-matter ofpatent & copyright. But

drawings of machinery falls incopyright.Escorts Construction case.

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PEPSI CAN1. Copyright in the packaging,

colours etc.

2. Trade mark in Pepsi3. Copyright in circular device4. Copyright in manner of

writing Pepsi

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MUSIC -- SONGS Original album New albums Remixes Version Recordings Pop versions DJ versions

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STORY PUBLISHED IN A BOOK STORY ENACTED IN A

DRAMA TRANSLATION TELE-SERIAL CINEMATOGRAPH

FILM

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PAINTINGS Licensing as covers for

books Licensing on stamps Create new versions by

changing the sizes of thepainting

Calendars Diaries etc.,

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Section 2 (y) of the Act- defines work to mean anyof the following works

Literary, dramatic, musical and artistic works Cinematograph films

Sound recordings The term literary work in common parlance means

any work written or printed in any language such asnovels, poetry, history or books on any subject

But the meaning in the context of copyright act ismuch wider in scope

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Literary work defined (Sec 2(o) ): Includes computer programs, tables and compilations, including computer

databases Inclusion of compilations bring in a broad category School text books, a directory, list of stock exchange prices, catalogues, etc

Newspapers, catalogues, letters, business letters examination papers,etc, are literary works

Need not even express a meaning in the ordinary language- atelegraphic code or a system of shorthand

On similar principles a computer database stored on tape, disk or otherelectronic means are literary works Computer programs - any program which controls the machine to

operate in a particular way (sec. 2 (ffc)) Works not protected as literary work

A single invented word, however original dies not qualify as aliterary work

Titles of books and magazines No copyright in a name, slogans, or slogans in general or in stringing

together a number of commonplace sentences While written advertisements are copyright protected, no copyright

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A dramatic work include a piece of recitation,choreographic work, entertainment in a dumb show,scenic arrangement or acting form which is fixed in

writing or otherwise, but does not include acinematograph film (sec. 2(h)) Examples: a play, screen play A work must be a dramatic work, pure and simple, or

a dance or a mime!

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Sec 2(p):Musical work means a work consisting ofmusic and includes any graphical notation of suchwork,

but does not include any words or action, intended to besung, spoken or performed with the music

Distinguish musical work from a song: A song has itswords written by one man and its music by another-the lyrics are literary work and music is a musicalwork.

These are two copyrights and entirely separate. The singer has no copyright but only performer's

right

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Copyright subsists in cinematograph films Defined (section 2(f) ) as a work of visual recording

on any medium, produced through a process from

which a moving image may be reproduced by anymeans and includes sound recording accompanyingany works produced by any process analogous tocinematograph, including video films

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Section 2(xx) sound recording means recording of soundsfrom which sounds may be produced regardless of themedium on which such recording is made or the method bywhich the sounds are produced

Copyright subsists in a sound recording separate from thecopyright in any work in respect of which it is made But if the sound recording in respect of a literary dramatic or

musical work, if in making of the sound recording copyright inthe work has been infringed

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Sec 2 (d) defines Author Literary or Dramatic work the author of the work Musical work composer Artistic work the artist

Photograph photographer Cinematograph film or Sound recording the

producer Computer generated literary, dramatic, musical or

artistic work- the person who causes the work to becreated

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Concept of originality does not relate to originality ofideas but with the originality of expression

Even such expression need not be original or novel,what is essential is that the work should not be a

copy of another work it must originate from the author

Both musical work and dramatic work should beoriginal should employ skill and labour

Labour and skill should be expended sufficiently toimpart to the product some quality or characterwhich the raw material did not possess it is thequality not quantity that matters


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No stipulation of originality for cinematograph filmsand Sound Recordings

But copyright will not subsist if substantial part of the

film is an infringement of copyright of any otherwork. Similarly copyright will not subsist in a sound

recording if in making of the sound record thecopyright in a work has been infringed


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Subject matter: works of authorship(e.g., literary works, musical works, pictorial works; NB:

software is a literary work)

Qualifications: Who: the author (but in US, work for hire rule) Procedure: rights attach automatically (but US authors

must register to sue; remedies depend on regis.)

Criteria: originality (some creativity); in US, works mustalso be fixed in some tangible medium

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X makes software that circumvents Ys encryptionsystem

Z is a copyright owner who decides to use Ysencryption system to protect digital pictures

Does Xs tool then become illegal? Can Y sue X? Can Z sue X? What harm has Xs

software done to Y or Z?

1201 (a)(2) and (b)(1) does not require anyunderlying infringement; mere potential is enough

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Injunction vs. posting of DeCSS on websites orotherwise making it available

CSS is effective access control for DVDs DeCSS circumvents it & has no other commercially

significant purpose Lack of evidence for Linux compatibility argument Besides, 1201(f) only protects interoperation with

programs, not data on DVD

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1.Reproduction2.Adaptation3.Distribution4.Public Performance

5.Public Display6.Digital Transmission of sound recordings.


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Reproduction

The right to reproduce the work.

Copies that are not exact still apply, example: A hand drawn illustration of SpongeBobSquare Pants.


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Adaptation

Changing the original work in some way.

JK Rowlings earns a great deal of money when

her books are adapted into screenplays and

turned into movies.


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Distribution

Only the copyright holder has the right to copy

and then distribute their work. The right of first sale allows the consumer to do

what they wish with the one copy that theypurchased. Without this provision a librarycouldnt loan a book.


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Public Performance

Only the copyright holder has the right topublicly perform their work.

A public performance includes; film, music,dance, theater, etc (Simpson, 2005)


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The law defines a public performance as: toperform or display it at a place open to thepublic or at any place where a substantial

number of persons outside a normal circle of afamily and its social acquaintances isgathered. (Simpson, 2005, p19)


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Public Display

Display of artwork in any place outside of the

home.

Could apply to pictures, photography, sculpture, or

even literature if it were to be displayed on theInternet.


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Length of life of copyright holder plus 70 years.(extended to 70 from 50 in 1998)

Works published before 1923 are in the public

domain. Works published between 1923-1978 have varying

periods of copyright. The time of creation dependson length of copyright protection.

Flow Chart to help determine when copyright expires
http://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htmhttp://www.bromsun.com/practices/copyright-portfolio-development/flowchart.htm


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Original Literary, Dramatic, Musical and Artistic Works

Work: Ideas expressed in material formNo copyright in ideas or facts

Cinematograph Films Sound Recordings Scope of Copyright Protection

Works Protected by Copyright Literary works (books, written speeches, magazines, newsletters, trade journals, training materials,

technical papers, instruction manuals, catalogues); Musical works (songs, operas and musicals); Dramatic works (dance, plays, mime); Artistic works (cartoons, paintings, sculptures, architectural works, blueprints, computer and laser

artwork); Photographic works (such as photos, engravings); Computer programs, software, and original databases; Maps, globes, charts, diagrams and technical drawings; Works Protected by Copyright (Continued) Advertisements, commercial prints and labels; Motion pictures (films, documentaries, television advertisements); Multimedia products (work combined text with usual images, sound and computer programs, such as

video games); and Works of applied art (artistic jewellery, wallpaper, carpets.)

Scope of Copyright Protection The things copyright does not protect


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Scope of Copyright Protection - The things copyright does not protect Ideas

Copyright law only protects the way ideas are expressed in a particular creation Copyright does not protect the underlying idea, procedure, method of operation,

mathematical concept or system Ideas protected under patent law or as trade secrets

Facts Copyright does not protect facts whether scientific, historical, biographical or news of

the day Only the manner in which such facts are expressed, selected or arranged are protected Others are free to use the facts as long as they do not copy the manner in which the facts

are expressed Scope of Copyright Protection - The things copyright does not protect

Useful articles Copyright protection may not available for articles registered or protectable under industrial design

law Usually the design of a useful article may be protected as an industrial design while copyright

protection may apply to the pictorial, graphic or sculptural features on the object Names, titles, slogans and other short phrases

Generally not protected under copyright other than for logos Official government works

Official texts of the Government or statutory bodies of a legislative or regulatory nature, or judicialdecisions

Note that this exclusion does not extend to works made by or under the direction or control of theGovernment or its Government organizations


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Right of Authorship Right of Integrity

Digital Manipulation No Right for Display

Inalienable Rights Scope of Copyright Protection - Moral Rights Most countries recognize moral rights, albeit the scope may vary from country to country Generally, all countries recognize two types of moral rights:

The right to be named as the author of the work (authorship right or paternity right) The right to protect the integrity of the work e.g. it prohibits any changes, modifications or alterations to

a work that would damage the authors honour or reputation Moral rights cannot be transferred to someone else Moral rights may be waived by the author in some countries by way of a written

agreement, for a specified period of time.


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8080

Right of Reproduction Making copies e.g. an edition of a novel Storage in computer memory

Right of Distribution/Issuing Copies Digital Distribution

Right of Communication to the Public Public Performance Internet Communication

Adaptation Rights Conversion into another form e.g. literary to drama

Abridgement Picturizations, comic formats

Right to make a cinematograph film or sound recording Translation Rights Rental Rights Resale Rights for original artistic works. - Economic Rights

Economic rights protect the authors economic interests and allow the author to earn a profit by direct or indirect exploitation of a work Scope of these rights and limitations and exceptions, differ on the type of work and from country to country

Generally it includes the exclusive rights to: Make reproductions or copies of the work in various forms Distribute the work to the public Rent or lend copies of the work Make translations or adaptations of the work Communicate the work to the public Perform, show or play the work in public


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Literary author Drama Dramatist Music Composer Artistic work Artist e.g. Painter, sculptor, architect

Photograph Photographer Author of Computer Programme Person who causes

the work to be created Cinematograph film producer Sound Recording producer


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Formality free protection Voluntary Registration (S. 44 & 45) Registration does not as a matter of law

establish that what is registered is in factand in law copyrightable subject matter


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Copyright and related rights complement each other by protecting differentpeoples involvement in a particular work

While copyright protects the author, related rights are rights granted to otherswho are involved in making the work public

For example, in the case of a song, whilst copyright protects the composers music and songwriters lyrics, related rights would protect:

singers and musicians who perform the song; producer(s) have made a sound recording of the song; and broadcasters that produced the broadcast program (Radio, TV & Web) in which the song

was broadcast


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Performers have the rights to prevent anyone from making a sound recording or visual recording of the

performance or reproduce such recordings made without his consent

Broadcast the performance Communicate the performance to the public Recording, broadcasting and communicating to the

public of a live performance Presumption of transfer of performers right to

cinematographic film producer Duration: 50 years


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There are three kinds of related rights or neighbouring rights :

rights of performers (actors, musicians, singers, dancers or generally people who perform) in their performances; rights of producers of sound recordings in their recordings (cassette recordings, compact discs, etc.); and

rights of broadcasting organizations in their radio and television programs and in internet broadcasts such aspodcasts

What are the rights that they have? Performers

You need to obtain the consent of the performer prior to recording, broadcasting or delivering a live performance

by cable as well as reproducing recordings Producers of sound recordings They have a legal right in their recordings and have the right to take action against unauthorized copying, use or

distribution Broadcasters

They enjoy the right to control the rebroadcasting, fixation (recording) and reproduction of their broadcasts The protection offered by related rights is independent of any copyright protection that may exist in the

works being performed, recorded or broadcast

Rights granted by law to communicators of works to thepublic Performers Broadcasting Organizations


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Set of exclusive rights (right to exclude others) to reproduce work in copies, to prepare derivative works, to distribute copies to the public, to publicly perform or display the work, or communicate it to the public moral rights of integrity & attribution (US visual art) some rights to control acts of those who facilitate or contribute to others

infringement (e.g., ISPs, agents) Limitations on exclusive rights:

Fair use (e.g., Sony Betamax, Acuff-Rose ) in US Fair dealing in UK and Canada

First sale (e.g., libraries, bookstores) Library-archival copying (e.g., ILL, course reserves) Classroom performances Special inter-industry compulsory licenses (e.g., cable-network TV) Other (e.g., playing radio in fast food joint)

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In the course of employment employer Employment by newspaper, magazine employer has publishing right; other

rights with author Photograph, painting, cinema for valuable consideration person who pays

money Lecture delivered in public Person delivering Government Work Government Public Undertaking Work public undertaking Work of International Organization International Organization Work of apprentice to Teacher If teacher writes a book then teacher because he is employed to teach and not

write Question Papers Paper setter Encyclopedia, dictionary editor for collection Music under contract by film producer film producer


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Rationale of Copyright Protection Term of protection for copyright is relatively long

in comparison with other IP The intention is to allow creators of original work

sufficient time to receive due compensation fortheir intellectual efforts Rationale behind copyright is to promote the

progress of science and arts by encouraging thecreation of new works by

guaranteeing some exclusivity for a limited time following which the works will return to the public

domain for others to benefit from them e.g. for otherto incorporate old ideas with the new

Protection has evolved over the past threecenturies, i.e. from 1709, and will continue to doso


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Works for Hire - employer is considered the authorwhen: work prepared by an employee within the scope or his/her

employment work specially ordered or commissioned for use as a

contribution to a collective work Transfer of title v Work-for-Hire

under a work for hire, employer is considered the owner.Duration 75 years from pub or 100 from creation. Transfer(assignment etc. 35 years)

Joint Works - when 2 or more people make contributionsof authorship with intention contributions be mergedinto inseparable work

OWNERSHIP OF COPYRIGHT


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Meaning of Ownership of Copyright Terms authorship and ownership are often confused Author refers to the person who created the work as opposed to someone who

contributed the idea of the work The owner of the copyright in a work is the person who has the exclusive rights to

exploit the work e.g. to use, copy, sell and make derivative works. Generally, copyright in a work initially belongs to the person who actually created it

i.e. the author, which will then be automatically transferred to the owner in thefollowing scenarios:

if the work was created by an employee as part of his job if the work was commissioned or specially ordered

Who owns the copyright in commissioned works? In Malaysia, by virtue of Section 26(2) of the Copyright 1987, the copyright to a

commissioned work is deemed to be transferred, in the absence of any agreement tothe contrary, from the author to the person who commissioned the work

Default position, e.g. where there is no contract or only a P.O. Terms can be varied by way of contract Important to examine all contracts for the creation of IP for this element

In most other countries, the creator owns the copyright in the commissioned work,while the person who commissioned it merely has a license to use

Need to be carful when going abroad Good idea to address copyright ownership issues in an agreement prior to

commissioning the external services




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Entering into a Copyright and License / Assignment Agreements Before entering into a relationship involving the creation of a work, ensure that you are

clear on What rights you own in the work under the law, e.g. what are you contributing to the work Whether you need to own the copyright in the work Whether a license to the work would be more appropriate

Points to consider include: Whether or not you want to prevent unauthorized use Whether or not you want to license the work to others

Whether or not you want to re-use the work for other purposes in the future How much you want to pay to the author of the work

To ensure ownership of copyright, you may do the following: Sign a written agreement with the author of the work, specifically

acknowledging that copyright is transferred Not needed bearing in mind the default position in S. 26(2) of the Copyright Act 1987 Alternatively, you may agree to licensing the right to use with some type of moratorium

Depending on where you are, consider the necessity of obtaining: Confirmatory assignment documents immediately after completion of the work, specifically

naming the copyright work by title A waiver of moral rights Registering the work with the national copyright office (If available)


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Collective works If the authors do not intend the work to be a joint work and would like their contributions to be used

separately, then the work will be deemed to be collective In this case, each author owns the copyright in the part he/she created

Derivative works A derivative work is a work based on one or more pre-existing works, such as translation, musical

arrangement, dramatization or motion picture version of a novel Making derivative works is an exclusive right of the copyright owner

Therefore, if the original work is protected by copyright, you cannot prepare a derivative work without thecopyright owners permission

Please note that the Act states that a work shall not be ineligible for copyright by reason only that the makingof the work, or the doing of any act in relation to the work involves an infringement of copyright in some other

work Copyright extends only to those aspects which are original to the derivative work

PART C: OWNERSHIP OF COPYRIGHT


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There are a few ways how you can commercialize your original and/or creativeworks:

you may sell the original works that are protected by copyright you may make copies or reproductions and sell the copies you may allow someone else to reproduce or otherwise use the works through licensing you may also sell (assign) your copyright over the works, either entirely or partly

There are many models to choose from, depending on what it is that youintend to achieve for your business

PART C: OWNERSHIP OF COPYRIGHT


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17 USC 105Copyright protection under this title is notavailable for any work of the United States

Government, but the United StatesGovernment is not precluded from receivingand holding copyrights transferred to it by

assignment, bequest, or otherwise (includingcontract).

'


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Limited use without owners permission criticism, comment, parody, news reporting,

teaching, scholarship or research

criteria purpose and character of use nature of original work amount of work used extent of harm


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Lets Apply the criteria: Education command wants to reproduce a text

book and distribute to all bases and ships at sea.

Permissible? Graphs copied and reproduced in slides will be

used in lecture to 150 people. The lecture is goingto be video broadcast to all bases and ships at sea.

Permissible?


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1. When do you need permission?2. When you dont need permission?

3. Process to get authorisation4. How to reduce the risk of infringement

PART D: USING WORKS OWNED BY OTHERS


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When permission is needed The use or exploitation of any works owned by others requires the copyright

owners permission e.g. the use of photographs on your website, the playing of the radio for the benefit of your

customers Even usage of a part of a work will require the owners consent The best way to avoid infringement is by obtaining express written permission of

the copyright owner before you use or exploit the work It is best to seek expert advice before negotiating terms and conditions of the

licensing arrangement with the owner of the copyright When permission is not needed

The content or material is not protected under copyright law e.g. if you are using facts or ideas and not the authors expression

The work is in the public domain The copyright on the work has expired The content or material is covered by the concepts of

fair use or fair dealing limitation or exception under law


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Reducing the risk of infringement Educate employees so that they are aware of possible

copyright implications of their work and of others rights Obtain written permission, licenses or assignments, where

needed, and ensure employees are familiar with the scopeof these permissions, licenses or assignments

Mark any apparatus that could be used to infringe copyright with a clear notice that theapparatus must not be used to infringe copyright

Prohibit employees explicitly from downloading music, video films, etc. from the Internet onoffice computers

Read agreements and notices regarding copyright works meticulously Appoint experts for professional advice

PART D: USING WORKS OWNED BY OTHERS


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Copyright Subsists in original literary dramatic musical and artistic

works Cinematograph films Sound recordings

Copyright in a cinematograph film or soundrecording is separate from the copyright in thework from which they are made

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Section 13- Works in which Copyright Subsists In the case of literary dramatic musical and artistic

works the work has to be original

In the case of a work of architecture, copyright shallsubsist only in the artistic character and design andshall not extend to the processes and methods ofconstruction

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Concept of originality does not relate to originality ofideas but with the originality of expression Even such expression need not be original or novel,

what is essential is that the work should not be acopy of another work

it must originate from the author Both musical work and dramatic work should be

original should employ skill and labour Labour and skill should be expended sufficiently to

impart to the product some quality or characterwhich the raw material did not possess it is thequality not quantity that matters

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Dictionary: preparation involves skill and labour.Copyright subsists in arrangement, sequence oridiom, etc.

Directory, maps or mere preparation of lists can allbe original works: compilation requires employmentof skill and labour

The threshold of originality for copyright protection

is low. But it exists and is a matter of judicialinterpretation.

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No stipulation of originality for cinematograph filmsand Sound Recordings

But copyright will not subsist if substantial part of thefilm is an infringement of copyright of any otherwork.

Similarly copyright will not subsist in a soundrecording if in making of the sound record the

copyright in a work has been infringed

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In respect of literary, dramatic or musical work, not being acomputer program, the exclusive right to reproduce the work in any material form

including storing of it in any medium by electronic means issue copies of the work to the public not being copies already in

circulation (Expln: A copy once sold shall be deemed to be a copy in circulation)

perform the work in public, or communicate the work to the public make a cinematograph film or sound recording

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Communication to the public means makingany work available for being seen or heard orotherwise enjoyed by the public directly or by

means of any of display or diffusion otherthan by issuing copies of such work of suchwork regardless whether any member of thepublic actually sees, hears, or otherwiseenjoys the work so made available

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To reproduce the work in any material form includingdepiction in three dimensions of a two dimensional work or intwo dimensions of a three dimensional work

To Communicate the work to public To issue copies of the work to public, not being copies in

circulation To include the work in any cinematograph film To make any adaptation of the work To do in relation to any adaptation any of the above acts

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To make a copy of the film, including aphotograph or any image forming part thereof

To sell or to give on hire or offer for sale or

hire any copy of the film regardless whethersuch copy has been sold or given on hire onearlier occasions

To communicate the film to public

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To make any other sound recording embodying it To sell or give on hire sell or to give on hire or offer

for sale or hire any copy of the sound recordingregardless whether such copy has been sold or givenon hire on earlier occasion

To communicate the sound recording to the public

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Authorizes any person to make fair use of a published orunpublished copyrighted work (including the making ofunauthorized copies) in these contexts:

In connection with criticism of or comment on the work

In the course of news reporting

For teaching purposes or

As part of scholarship or research activity

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Certain uses of a work protected by copyright do not requirepermission of the copyright owner when done for essentiallynon-commercial reasons.

For example A teacher taking photocopies for distribution in a

class.

What happens if this is hosted on the web ?

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1. The purpose and character of the use, including whether suchuse is of a commercial nature or is for nonprofit educationalpurposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relationto the copyrighted work as a whole.

4. The effect of the use upon the potential market for or value ofthe copyrighted work

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Semiconductor

- Original, Distinctive. Joint copyright is allowed under specialcircumstance, For 10 yr from date of registration or day of commercialexploitation, whichever is earlier

- Scientific evaluation, research, education amount to fair practice

- Registered user also to file with the office

- Registered user can file for infringement but does not have right ofassignment

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Rights for 60 yrs beyond the death of owner. For dead authors, 60 yrs from use of

work For cinema/photograph, 60 yrs from date of publishing

Sound, 60 yrs from date of release

60 yrs for Govt, PU and Intl organizations

Compulsory licensing of Indian work maybe be invoked by copyright board for publicgood

For education, any Non-Indian work can be translated in 3 yr.

For both the above, royalty to author decided by board

Broadcast Reproduction Right and Performers Right for 25 yrs

Recording for personal use and education/fair use is not infringement

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Protection extends to expression Computer Programs are treated as Literary Work

Compilation of data and not data itself (unless copyrighted) is protected

Author of literary & artistic work have sole right to distribute or transferownership

Right to rental of computer programs and cinematographic work (exceptwhen not essential object)

Right to communication to public solely by author

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Copyrights (continued)b. No formalitiesare required to establish a

copyright No requirement to use or the word copyright No requirement to disclose the copyright owner No requirement to state the date when the work was first published No requirement to register

Duration: a copyright lasts for 50 yearsfollowing the author's death (Berne Convention) Can belonger if members laws allow so. America has extended it forand additional 25 years (total now 75). Upheld by US Sct. In2003.

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Copyrights (continued)d. Scope of rights : copyright holder may only

restrict the use of the work itself.

May not prevent others from using the idea or the knowledgecontained in the copyrighted work.

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Copyrights (continued)e. Pecuniary Rights(i.e., to exploit a work for

economic gain):

Right to reproduce. Right to distribute.

Exhaustion of Rights: once a work has been distributed to the public,the right to control its distribution comes to an end.

Right of performance.

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Copyrights (continued)f. Moral Rights (i.e., to prohibit others from

tampering with a work).

These include: Right to object to distortion, mutilation or modification. Right to be recognized as the author. Right to control public access to the work. Right to correct or retract a work.

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Copyrights (continued)f. Moral Rights (continued)

2)The World Trade Organization's Agreement on Trade- Related Aspects of Intellectual Property Rights: requires WTOmember states to comply with the provisions of theBerneConvention.

Caveat: Does not require WTO member states to comply with theBerne Convention provisions granting moral rights to authors.

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Copyrights (continued)g. Uses that do not constitute an infringement

of a copyright (commonly are):

Use in a court or administrative proceeding Use by the police if the material (such as a portrait) is needed

to maintain public safety Use for instructional purposes in schools

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Copyrights (continued)g. Uses that do not constitute an infringement

of a copyright (commonly are):

4)Use for a purely private purpose5)Use in brief quotations in scholarly or literary works, or inreviews

6)Use in extended quotations of newsworthy speeches or

political commentaries

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After January 1, 1978 the work was automaticallyprotected by copyright the moment it was createdand physically recorded, written, painted, etc

After 1989 works no longer needed the copyrightsymbol,, and the author no longer needed toregister the work with the US copyright office inorder to be eligible for protection.


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What is the Public Domain?work not protected by copyright.

How does a work enter the public domain? Work may not have been eligible for copyright

protection. Creative Commons

Authors may elect to dedicate their work to the publicdomain, Creative Commons is the method used to dothis. ( www.creativecommons.org )
http://www.creativecommons.org/http://www.creativecommons.org/


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Factual Information ex. Phone book data Ideas Creative works made by non-humans, ex. Art

work created by a monkey or an elephant. Works created by US Federal government

employees during the course of their duties.


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Created in response toDigital MillenniumCopyright Act (DMCA)

Creative CommonsVideo Creativecommons.org

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http://creativecommons.org/videos/a-shared-culture/http://creativecommons.org/videos/a-shared-culture/http://creativecommons.org/videos/a-shared-culture/http://creativecommons.org/videos/a-shared-culture/


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What is it?

Fair use is not a right. It is a defenseused in court when an individual has

been charged with infringingcopyright laws. (Simpson, 2005)


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Will that make you sleep better at night?


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Without fair use human knowledge would notadvance. It is necessary to balance the

copyright holders rights with the rights of

humankind to use and build upon thediscoveries of others.


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The fair use guidelines as they appear in section107 of the federal law are listed below.

Section 107 contains a list of the various purposes for which thereproduction of a particular work may be considered fair, such ascriticism, comment, news reporting, teaching, scholarship, and research.

Section 107 also sets out four factors to be considered in determiningwhether or not a particular use is fair: The purpose and character of the use, including whether such use is of

commercial nature or is for nonprofit educational purposes The nature of the copyrighted work The amount and substantiality of the portion used in relation to the

copyrighted work as a whole The effect of the use upon t he potential market for, or value of, the

copyrighted work (17 USC, http://www.copyright.gov/fls/fl102.html )
http://www.copyright.gov/fls/fl102.htmlhttp://www.copyright.gov/fls/fl102.htmlhttp://www.copyright.gov/fls/fl102.html


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The four tests for fair use are difficult for laypeopleto understand. In order to help teachers better

understand which uses constituted fair usecongress came up with the fair use guidelines. One

can use either the guidelines or the fourtests as a defense of fair use.

Fair use guidelines are easier to learn andadminister than applying the fair use test.

(Simpson, 2005)


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Teachers may copy, for the purpose of research,teaching, or preparation for teaching:

A single chapter from a book. A single copy of an article. A single copy of a short story, short essay, or short

poem. A single copy of a chart, graph, diagram, drawing,

cartoon, or picture from a book, periodical, ornewspaper. (Simpson, 2005, p54)


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When are multiple copies permitted? Multiplecopies are permitted if three tests are met.

1. Brevity- length of a work used.2. Spontaneity3. Cumulative Effect


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Brevity Poem up to 250 words in length. Prose: Article less than 2,500 words may be copied in its

entirety. Play or novel not more than 1,000 words or 10%less. Picture book: only two pages provided this isnt more than

10%. Illustration: One chart, graph, drawing, cartoon, diagram or

picture.Hall Davidson Chart on Copyright and Fair Use Guidelines
http://www.halldavidson.net/chartshort.htmlhttp://www.halldavidson.net/chartshort.html


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Spontaneity

Must be teachers idea to use the work. Planned use must be too close to use to get

permission from copyright holder, less than 2 weeks.


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Cumulative Effect

Law was created to ensure that fair use isnt a

substitute for purchasing materials. Item may be copied for only one course. Students may not be charged for copies beyond

the actual cost of photocopying. Consumables may not be copied.


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Rules included in section 110(1) of 17 USC,current copyright law.

This is law and not externally developedguidelines as in the case of print media.

Can be broken down into five yes or noquestions to help determine appropriatenessof a fair use claim.


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If you couldnt answer yes to all five questions you would most likely not qualify for a fair usedefense.

In a case such as this the copyright holder mustgrant permission, or you must obtain performancerights? Such rights can be obtained with thepurchase of an umbrella license. Several vendorssell an umbrella license allowing publicperformances of movies from certain producers.


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Print Materials Acceptable Use Purchased copies havent arrived in time, making

emergency copies is permissible. Classroom purposes, non performance, portion of a

work may be copied, not to exceed 10%. Schools owning sufficient copies of a piece may edit

or simplify the work provided it doesnt change the

character of the work.(Simpson, 2005)


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Recorded Music Acceptable Use Single copy of a student performance may be

made, but only for evaluation or rehearsal.

A single copy of a sound recording ofcopyrighted music, which a legal copy isowned, for the purpose of constructing auralexaminations or exercises. (Simpson, 2005)


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Motion media- up to 10% or 3 minutes, whichever is less, of an individual program. Text-Up to 10% or 1000 words of a novel, story, play, or long poem. Poem shorter than 250

words may be used completely. Music, lyrics, and music videos- 10% or 30 seconds. (CONFU Guidelines, 1996) Illustrations, cartoons, and photos- no more than 5 images from a single artist. No

more than 15 images or 10% of a single collection.

10% of numerical data sets or 2,500 fields.

Citing copyright protected work is required.

Teachers may only keep work with copyrighted material a period of two years afterits first use.

Students may keep the work indefinitely.

The opening screen of the multimedia presentation must contain a notice that thework contains copyrighted material and is being used under the fair use exemptionof the U.S. Copyright Law. (Simpson, 2005)


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Issues

Tempting and easy to make illegal copies. Teachers/administrators rationalize their actions as necessary. Software Publishers Association (SPA) estimates that for every one legal

copy purchased there are another 3-7 illegal copies in distribution.(Marshall, 1993)

Risks Piracy is punishable as a felony. If one makes more than 10 illegal copies of software within 180 day

period, crime is punishable up to 2 years in jail and 25,000. Make more than 50 copies and that fine goes up to 250,000 and up to 5years jail time.


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If a page is damaged, a good copy of the pagecan be made and inserted into the book.

If a book is out of print, and a new copy

cannot be obtained at a reasonable price,library may make copies to repair or replacedamaged book. (Simpson, 2005)

Copyright Protection


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COPYRIGHT is an exclusive right - a bundle of rights

Reproduce, issue copies, perform, translate, adapt etc. does not protect ideas, procedures, methods ofoperations, discoveries, functionality - only theexpression of an idea in a tangible form program, audio visual displays, source code andobject code are protectable

Term of protection - Life + 60 years (India)

Copyright subsists worldwide - BERNEConvention


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Right of make or reproduction Right to issue copies sell, rent or give for hire Right of public performance communicate to the public Right of public display Right of public distribution Right of importation Derivative rights adaptation, translation, inclusion Right to assign or license Moral rights / right of paternity


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Literary Films Dramatic

Musical Sound Recording Artistic

Copyright Protection Copyright infringement


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py g gperson without license/ in contravention of license

does anything which violates exclusive right of copyrightholder

Infringing copies are Any copy made in violation of the bundle of rights.distributed for trade or to the extent to prejudicially affectthe ownerexhibited in publicimported into India

Computer programsno infringement if adaptations or copies made bylawful possessor to

utilize program for purpose it was supplied back-up copies


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Computer includes any electronic or similar device having

information processing capabilities (added by amendment in1995)Duplicating equipment means any mechanical contrivance ordevice used or intended to be used for making copies of anywork.Reprography means the making of copies of a work, byphotocopying or similar means

Publication means making a work available to the public bymeans of copies or by communicating the work to the public.

But by a review of cases one can see that protection againstwhat is contemplated under the new WIPO treaty has alreadybeen granted by judge-made law.

Chorography :f i d i i f b ll d i b li l


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art of arranging designing of ballet or stage dance in symbolic language. It is a form of dramatic work. In order to qualify for the copyright protection it must be reduced into writing.

Ballet: The elements of ballet are the music, the story, the choreography, the scenery,

and the costumes. A composite work. Such work could be the subject matter of copyright.

Painting : An artistic work whether or not it posses any artistic quality . To be entitled to copyright protection a painting must be original i.e. it should originate from the painter

and not a mere copy of another painting. A painting must be on a surface of some kind. Facial make-up as such, however idiosyncratic it must be an idea, cannot possibly be a painting for the purpose of copyright act.


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Organisations which are engaged in any of the above stages of creation of a productought to protect their creation


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ought to protect their creation. Sufficient safeguards ought to be taken to ensure that such works are not misused

or plagiarised Whenever designs or any other subject matter of Intellectual Property is created

within an organisation, the contract should clearly specify that anything created bythe employees during the course of their employment would automatically belongto the organisation which will have the rights to exploit the same

Documents relating to the creation should be preserved chronologically in original.The same should be maintained under specific portfolio and should be kept underthe custody of any of the Top Management Officials

Once the final product is created and before it is sent for industrial manufacture orin the case of a designer product before it is put in the market for sale, steps shouldbe taken to protect it by filing Copyright applications or Design applications

Care must be taken to ensure that no prior publication is made before suchapplications are filed. This would ensure that in the case of a design, priorpublication is not made and in case of copyright. , no one else claims prior rights

The applications which are filed should be followed up diligently and registrationcertificates obtained should be maintained in the records of the organisation