COPYRIGHTCOPYRIGHT

SANJEEV KUMAR CHASWALSANJEEV KUMAR CHASWALSANJEEV KUMAR CHASWALSANJEEV KUMAR CHASWAL

Advocate & IPR AttorneyAdvocate & IPR AttorneyAdvocate & IPR AttorneyAdvocate & IPR Attorney

IPR UNITIPR UNITIPR UNITIPR UNIT----IV COPYRIGHTS PartIV COPYRIGHTS PartIV COPYRIGHTS PartIV COPYRIGHTS Part----IIII

What Is Copyright?What Is Copyright?What Is Copyright?What Is Copyright?What Is Copyright?What Is Copyright?What Is Copyright?What Is Copyright?� CopyrightCopyrightCopyrightCopyright isisisis aaaa formformformform ofofofof intellectualintellectualintellectualintellectual propertypropertypropertyproperty protectionprotectionprotectionprotection

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computercomputercomputercomputer programs,programs,programs,programs, tablestablestablestables andandandand compilationscompilationscompilationscompilations includingincludingincludingincluding

computercomputercomputercomputer databasesdatabasesdatabasesdatabases whichwhichwhichwhich maymaymaymay bebebebe expressedexpressedexpressedexpressed inininin

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History of Indian copyright LawHistory of Indian copyright Law

� The IndianIndianIndianIndian CopyrightCopyrightCopyrightCopyright Act,Act,Act,Act, 1957195719571957 governs the system of

copyrights in India. Copyright Law in the country was

governed by the Copyright Act of 1914, was essentially

the extension of the British Copyright Act of 1911 to

India and borrowed extensively from the new Copyright

Act of the United Kingdom of 1956. Now IndianAct of the United Kingdom of 1956. Now Indian

Copyright is governed by the Indian Copyright Act,1957.

� The Indian Copyright Act today is compliant with most

international conventions and treaties in the field of

copyrights. India is a member of the Berne Conventionof 1886 (as modified at Paris in 1971),

History of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright LawHistory of Indian copyright Law

� The Universal Copyright Convention of 1951 and

the agreement on Trade Related Aspects of

Intellectual Property Rights (TRIPS).

� Though India is not a member of the Rome

Convention of 1961, WIPO Copyrights Treaty

(WCT) and the WIPO Performances and

Phonograms Treaty (WPPT),the Copyright Act isPhonograms Treaty (WPPT),the Copyright Act is

compliant with it.

� The Copyright Act, 1957 is also in conformity

with the provisions of the Rome Convention of

1961 (Though India is not a member of the Rome

Convention).

Copyright Act 1957 Copyright Act 1957 –– Main Main

FeaturesFeatures

�Performing rights societies’ rights (for instance, music royalties)

�Definition of categories in which copyright

actually subsistsactually subsists

� International copyright

�Definition of infringement

Copyright (Amendment) Act 1983 Copyright (Amendment) Act 1983 and 1984and 1984

1983198319831983 ActActActAct

� Berne and Universal Copyright

Conventions � grantgrantgrantgrant ofofofof compulsorycompulsorycompulsorycompulsorylicenseslicenseslicenseslicenses by developing countries,

publication by deceased authorspublication by deceased authors

� 1984 Act:

� discouragingdiscouragingdiscouragingdiscouraging

andandandand preventingpreventingpreventingpreventing widespreadwidespreadwidespreadwidespread videovideovideovideo piracypiracypiracypiracy

Copyright (Amendment) Act 1992 & 1994

� Defined ambit of the Copyright Board’s powers

� Introducing special rights for performers

� Assignment and licenses of copyright

� Rights of copyright owners.

� The June 1994 amendments to the Copyright Act� The June 1994 amendments to the Copyright Act

introduced a landmark in the India's copyright arena.

� For the first time in India, the Copyright Law clearly

explained:

� • The rights of a copyright holder

� • Position on rentals of software

� • The rights of the user to make backup copies

REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT REQUIREMENTS OF COPYRIGHT

PROTECTIONPROTECTIONPROTECTIONPROTECTIONPROTECTIONPROTECTIONPROTECTIONPROTECTION

� “Originality” – itshould originatefrom the author –product ofproduct ofindependentcreation

� “Fixation” – shouldbe expressed in amaterial form

WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A WHO OWNS THE COPYRIGHT IN A

WORK?WORK?WORK?WORK?WORK?WORK?WORK?WORK?

� The Creator The Creator The Creator The Creator

�� ExceptionsExceptions::

– WrittenWrittenWrittenWritten agreementagreementagreementagreement

totototo thethethethe contrarycontrarycontrarycontrarytotototo thethethethe contrarycontrarycontrarycontrary

– EmployeeEmployeeEmployeeEmployee

– SpeciallySpeciallySpeciallySpecially

commissionedcommissionedcommissionedcommissioned

workworkworkwork

– MadeMadeMadeMade forforforfor valuablevaluablevaluablevaluable

considerationconsiderationconsiderationconsideration

What Copyright ProtectsWhat Copyright Protects

� Original Literary, Dramatic, Musical and

Artistic Works

� Cinematograph Films

� Sound Recordings

Literary WorksLiterary Works

� Novels, poems, short stories

� Computer programmes, tables, computer

databases

� Song lyrics� Song lyrics

� Books on any subject

Computer SoftwareComputer Software

Which Includes

� Programme Manuals

� Punched Cards

� Magnetic Tapes/Discs� Magnetic Tapes/Discs

� Computer printouts

� Computer programmes

Who is an authorWho is an author

� An author is a

� In the case of a literary or dramatic work the author,

i.e., the person who creates the work

� In the case of a musical work, the composer.

� In the case of a cinematograph film, the producer.

� In the case of a sound recording, the producer.� In the case of a sound recording, the producer.

� In the case of a photograph, the photographer.

� In the case of a computer generated work, the person

who causes the work to be created.

� Indian work "Indian work" means a literary, dramatic

or musical work, The author of which is a citizen of

India; or Which is first published in India; or The author

of which, in the case of an unpublished work is, at the

time of the making of the work, a citizen of India.

Descriptions of Copyright workDescriptions of Copyright work

� ArtisticArtisticArtisticArtistic workworkworkwork - An artistic work means

– A painting, a sculpture, a drawing (including a

diagram, map, chart or plan), an engraving or a

photograph, whether or not any such work

possesses artistic quality;

– A work of architecture; and– A work of architecture; and

– Any other work of artistic craftsmanship.

� MusicalMusicalMusicalMusical workworkworkwork

– "Musical work" means a work consisting of music

and includes any graphical notation of such work

but does not include any words or any action

intended to be sung, spoken or performed with the

music. A musical work need not be written down to

enjoy copyright protection.

� SoundSoundSoundSound recordingrecordingrecordingrecording---- "Sound recording" means a

recording of sounds from which sounds may be

produced regardless of the medium on which such

recording is made or the method by which the sounds

are produced. A phonogram and a CD-ROM are sound

recordings.

Descriptions of Copyright workDescriptions of Copyright work

� CinematographCinematographCinematographCinematograph filmfilmfilmfilm---- "Cinematograph film" means any

work of visual recording on any medium produced

through a process from which a moving image may be

produced by any means and includes a sound

recording accompanying such visual recording and

"cinematograph" shall be construed as including any

work produced by any process analogous to

cinematography including video films.

� GovernmentGovernmentGovernmentGovernment workworkworkwork - "Government work" means a work

which is made or published by or under the direction

or control of

– The government or any department of the

government

– Any legislature in India, and

– Any court, tribunal or other judicial authority in

Descriptions of Copyright workDescriptions of Copyright work

– Any court, tribunal or other judicial authority in

India.

Duration of copyright

� Literary

� dramatic,

� musical and

� artistic works (other

than a photograph)

sixty years from the

beginning of the calendar

year next following the

year in which the author

dies.

� Anonymous and � Anonymous and pseudonymous works

� Posthumous work� Photographs� Cinematograph films� Sound records� Government work� Public undertakings

work� International

organisations work

sixty years from the sixty years from the sixty years from the sixty years from the

beginning of the calendar beginning of the calendar beginning of the calendar beginning of the calendar

year next following the year next following the year next following the year next following the

year in which the work is year in which the work is year in which the work is year in which the work is

first published.first published.first published.first published.

COPYRIGHT COPYRIGHT COPYRIGHT COPYRIGHT COPYRIGHT COPYRIGHT COPYRIGHT COPYRIGHT –––––––– A BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTSA BUNDLE OF RIGHTS

� EconomicEconomicEconomicEconomic RightsRightsRightsRights

– ReproduceReproduceReproduceReproduce orororor makemakemakemakecopiescopiescopiescopies

� Moral rightsMoral rightsMoral rightsMoral rights

– Right of Right of Right of Right of

– Issue copiesIssue copiesIssue copiesIssue copies---- sell, sell, sell, sell, distribute, etc .distribute, etc .distribute, etc .distribute, etc .

– Display to publicDisplay to publicDisplay to publicDisplay to public

– AdaptAdaptAdaptAdapt

– Assign/LicenseAssign/LicenseAssign/LicenseAssign/License

– Right of Right of Right of Right of

acknowledgementacknowledgementacknowledgementacknowledgement

– RightRightRightRight totototo objectobjectobjectobject againstagainstagainstagainst

mutilationmutilationmutilationmutilation /distortion/distortion/distortion/distortion ofofofof

workworkworkwork

Assignment of copyright section Assignment of copyright section 18, 19 and 19A18, 19 and 19A

� The author of a work is the first owner of the

copyright( Section 17).

� However, for works made in the course of an

author's employment under a contract of service,

the employer is the first owner of the copyright. The

owner of the copyright in an existing work or the

prospective owner of the copyright in a future workprospective owner of the copyright in a future work

may assign to any person the copyright either

wholly or partially and either generally or subject to

limitations and either for the whole term of the

copyright or any part thereof: Provided that in the

case of the assignment of copyright in any future

work, the assignment shall take effect only when

the work comes into existence.

�

Assignment of copyrightAssignment of copyright� (Section 18) Section 19 lays down the modes of

assignment- assignment can only be in writing and

must specify the work, the period of assignment and

the territory. Section 19(5) provides that if period of

assignment is not specified it shall be deemed to be 5

years and section 19(6) provides that if the territorial

extent of assignment is not specified it shall beextent of assignment is not specified it shall be

presumed to extend within India. In a recent

judgement, a division bench of the Delhi High Court

in Pine Labs Private Limited vs Gemalto TerminalsIndia Limited the Court has held that in case the

duration of assignment is not specified, the duration

shall be deemed to be five years and after five years

the copyright shall revert to the author.

U/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignment

� –(1) No assignment of the copyright in any work shall be

valid unless it is in writing signed by the assignor or his

duly authorised agent.

� (2)The assignment of copyright in work shall identify

such work, and shall specify the rights assigned and the

duration and territorial extent of such assignment.

� (3) The assignment of copyright in any work shall also(3) The assignment of copyright in any work shall also

specify the amount of royalty payable, if any,

� (4) Where the assignee does not exercise the rights

assigned to him under any of the other sub sections of

this section within a period of one year from the date of

assignment, the assignment in respect of such rights

shall be deemed to have lapsed after the expiry of the

said period unless otherwise specified in the

assignment.

U/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignmentU/S 19. Mode of assignment

� (5) If the period of assignment is not stated, it

shall be deemed to be five years from the date of

assignment.

� (6) If the territorial extent of assignment of the� (6) If the territorial extent of assignment of the

rights is not specified, it shall be presumed to

extend within India.

Assignment of copyrightAssignment of copyright� In this case, Pine Labs had written some software for

Gemalto under a Master Service Agreement (MSA).

Though in the MSA Pine Labs had assigned the

copyright in the works to Gemalto, the period of

assignment was not specified. The Court held that

though Gemalto may have paid for the software, Pine

Labs, being the author was the first owner of the

copyright and after five years, the copyright revertedcopyright and after five years, the copyright reverted

to Pine Labs. It made no difference whether the MSA

was treated as an assignment or an agreement to

assign. Full text of the judgement can be viewed at Pine

Labs Vs Gemalto and others.

� Where assignee fails to exercise the rights assigned to

him within a period of one year from the date of

assignment, the assignment in respect of such right

shall be deemed to have been elapsed, unless

otherwise provided in the assignment.

Difference between assignment of Difference between assignment of copyright and it’s licensingcopyright and it’s licensing

� AAAAn assignment carries with it the whole interest in the

thing assigned, including the right to reassign, while

the license is personal and not assignable without the

grantors consent.

� An exclusive license is a leave to do a thing and a

contract not to give leave to anybody else to do thecontract not to give leave to anybody else to do the

same thing.

� The license does not confer any property, in the thing

licensed to the licensee rather it only makes as action

lawful which otherwise would have been unlawful

giving rise to a cause of action in the form of

infringement of copyright.

3

Difference between assignment Difference between assignment of copyright and it’s licensingof copyright and it’s licensing

� A licensee has no title to sue in his own name but an

assignee is considered to be the owner and can sue for

the infringement without any prior consent of the

assignor or even in the absence of a specific clause in

the contract in that regard.

� Licensing usually involves some of the rights and not

the whole. An author of a novel may license the right to

reproduce the work in hard back to one person and

paper back to anathor, the serialization right

newspaper or magazine, film and dramatization rights

to others and translation rights to yet anathor.

Broad casting and performers RightsBroad casting and performers Rights

� Rights of Broadcasting Organisation and of

Performers BroadcastBroadcastBroadcastBroadcast reproductionreproductionreproductionreproduction rightrightrightright

� The broadcast reproduction right shall subsist

until twenty-five years from the beginning of the

calendar year next following the year in which

the broadcast is made.the broadcast is made.

� Performer’sPerformer’sPerformer’sPerformer’s rightrightrightright

� The performer's right shall subsist until fifty

years from the beginning of the calendar year

next following the year in which the performance

is made.

Can Idea be copyrightCan Idea be copyright

� Copyright in form or expression, not in idea:

“There is nothing in the notion of copyright to

prevent a second person from producing an

identical result...” (Gregory Committee Report,identical result...” (Gregory Committee Report,

1952, para 9)

� Copyright onlyonlyonlyonly inininin materialmaterialmaterialmaterial formformformform � principle of

fixation

Moral Rights of an Author under Moral Rights of an Author under the Act the Act

� The author of a work has the right to claim authorship

of the work and to restrain or claim damages in

respect of any distortion, mutilation, modification or

other act in relation to the work, if such distortion,

mutilation, modification or other act is prejudicial to

his honour or reputation. Moral rights are available to

the authors even after the economic rights arethe authors even after the economic rights are

assigned. (section 57)

� Section 57 clearly overrides the terms of the contract

of assignment of the copyright. The contract of

assignment would be read subject to the provisions of

� section 57 and the terms of contract cannot negate

the special rights and remedies guaranteed by section

57.

� The assignee of a copyright cannot claim any rights or

immunities based on the contract, which are

inconsistent with the provisions of section 57.

� This section prohibits any distortion, mutilation or

other modification of the author’s work. The words

“other modification” are ejusdem generis with the word

“distortion” and “mutilation”. The modification should

not be so serious that the modified form of the work

looks quite different work from the original.looks quite different work from the original.

“Modification” in the sense of the perversion of the

original, will amount to distortion or mutilation.

� Under section 57 of the Act, the author of a work has

the right to claim the authorship of the work. He also

has a right to restrain the distortion or mutilation of his

work or to claim damages for the distortion even after

assigning the copyright. The contract of assignment

will require being consistent with section 57.

ReReReReReReReRe--------sale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyrightsale & relinquishment of copyright

� The first owner of the copyright and his legal heirs are

granted a right called resale share right in original

copy. This right is exercisable even after the

assignment of the work. This right is confined to certain

works only i.e., original copy of painting, sculpture, or

drawing or original manuscript of a literary or dramatic

or musical work and is available only to the first owner

of right or his legal heirs.of right or his legal heirs.

� The author of a work may relinquish all or any of the

rights comprised in the copyright in the work by giving

notice in the prescribed from to the Registrar of

Copyrights and thereupon such rights shall, subject to

the following conditions, cease to exist from the date of

the notice. On receipt of a notice, the Registrar of

Copyrights shall cause it to be published in the Official

Gazette and in such other manner as he may deem fit.

Assignment of Future RightsAssignment of Future RightsAssignment of Future RightsAssignment of Future RightsAssignment of Future RightsAssignment of Future RightsAssignment of Future RightsAssignment of Future Rights

� The owner of the copyright in an existing work or the

prospective owner of the copyright in a future work

may assign to any person the copyright, either wholly

or partially and either generally or subject to

limitations and either for the whole term of the

copyright or any part thereof. However, in the case of

the assignment of copyright in any future work, the

assignment shall take effect only when the work comesassignment shall take effect only when the work comes

into existence. when new rights are granted by the

legislature on existing works due to the technological

development, problem arises as to the ownership of

the new rights, whether the assignor who assigned

already all the existing rights on the work or the

assignee is the owner of the future rights.

Moral RightsMoral Rights� In Phoolan Devi v. Shekar Kapoor, (1995-PTC Del),

Granting an injunction Vijendra, Jain J. held, that “the

defendant had no right to exhibit the film as produced

violating the privacy of plaintiff’s body and person. The

balance of convenience is also in favour of restraining

the defendants from exhibiting the film any further as it

would cause further injury to the plaintiff. No amount of

money can compensate the indignities, torture, and� money can compensate the indignities, torture, and

feeling of guilt and shame which has been ascribed to

the plaintiff in the film. Therefore, the defendants were

refrained from exhibiting the film in its censored

version till the final decision of the suit.”

Fair dealing RightsFair dealing Rights� A fair dealing with a literary, dramatic, musical or

artistic work (not being a computer programme) for

the purposes of for the purpose

� of research or private study,

� for criticism or review,

� for reporting current events,

� in connection with judicial proceeding,

performance by an amateur club or society� performance by an amateur club or society

� if the performance is given to a non-paying

audience, and

� the making of sound recordings of literary, dramatic

or musical works under certain conditions.