OVERVIEW,COPYRIGHT,LAW,INTRODU law AN OVERVIEW - COPYRIGHT LAW

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INTRODUCTION Copyright is a legal term refersto protecting a creator’s work. It is a type of intellectual property thatprovides exclusive publication, distribution, and usage rights for the creator.This means whatever content is created cannot be used or published by anyoneelse without the consent of the creator. The length of copyright protection maydiffer from country to country, but it usually lasts for the life of the authorplus 50 to 100 years. Copyright is generally given by the law to creators ofliterary, dramatic, musical and artistic works and producers of cinematographfilms and sound recordings. It is a pack of rights including, inter alia,rights of reproduction, communication to the public, adaptation and translationof the work. In modern times, copyright protection has been extended towebsites and other online content. This is important in the digital age, sincelarge amounts of content can be easily copied. In many countries, copyright shieldis automatic. Whenever you publish original content, it is automaticallyprotected by copyright law. If you want others to know your content iscopyright protected, you can post the copyright logo (©) on any Web pages thatinclude your unique content. You may also want to include the years you haveowned the content. e.g. Copyright © 2007-2009 [your name]. Many countriesprovide copyright registration, which allows authors to register copyrightedcontent with a government agency. This makes it easy to establish ownership ofcontent if it is ever uncertain. COPYRIGHT & TECHNICAL TERMS Ø Work - A work refers to any of thefollowing, namely, a literary, dramatic, musical or artistic work, acinematograph film, or a sound recording. Ø Artistic Work - An artistic work means apainting, a carving, a drawing (including a diagram, map, chart or plan), anengraving or a photograph, whether or not any such work possesses artisticquality, a work of architecture and any other work of artistic craftsmanship. Ø Musical Work - Musical work means a workconsisting of music and includes any graphical notation of such work but doesnot include any words or any action intended to be sung, spoken or performedwith the music. A musical work need not be written down to enjoy copyright security. Ø Sound Recording - Sound recording means arecording of sounds from which sounds may be produced regardless of the mediumon which such recording is made or the method by which the sounds are produced.A phonogram and a CD-ROM are sound recordings. Ø Cinematograph Film - Cinematograph filmmeans any work of visual recording on any medium produced through a processfrom which a moving image may be produced by any means and includes a soundrecording accompanying such visual recording and cinematograph shall beconstrued as including any work produced by any procedure analogous tocinematography including video films. Ø Government Work - Government work means awork which is published by or under the direction or control of the governmentor any department of the government, any legislature in India, and anycourt, tribunal or other judicial authority in India. Ø Indian work - Indian work means aliterary, dramatic or musical work, the author of which is a citizen of India or whichis first published in Indiaor the author of which, in the case of an unpublished work is, at the time ofthe making of the work, a citizen of India. Ø  Author- In the case of a literary or dramatic work the author, i.e., the personwho creates the work. In the case of a musical work, the composer. In the caseof a cinematograph film, the producer. In the case of a sound recording, theproducer. In the case of a photograph, the photographer. In the case of acomputer generated work, the person who causes the work to be created. Ø  Adaptation- Adaptation involves the preparation of a new work in the same ordifferent form based upon an already existing work. The Copyright Act definesthe following acts as adaptations, 1.      Conversionof a dramatic work into a non dramatic work2.      Conversionof a literary or artistic work into a dramatic work3.      Re-arrangementof a literary or dramatic work4.      Depictionin a comic form or through pictures of a literary or dramatic work5.      Transcriptionof a musical work or any act involving re-arrangement or alteration of anexisting work. The making of acinematograph film of a literary or dramatic or musical work is also anadaptation. Ø Performer - As per the Indian CopyrightAct, a Performer includes an actor, singer, musician, dancer, acrobat, juggler,conjurer, snake charmer, a person delivering a lecture or any other person whomakes a performance. Ø Performance - Performance in relation toperformer’s right, means any visual or acoustic presentation made live by oneor more performers. Ø Broadcast - Broadcast means communicationto the public by any means of wireless diffusion, whether in any one or more ofthe forms of signs, sounds or visual images or by wire. Ø Copyright Society - A copyright societyis a registered collective administration society. Such a society is formed bycopyright owners. The minimum membership required for registration of a societyis seven. Ordinarily, only one society is registered to do business in respectof the same class of work. A copyright society can issue or grant licenses inrespect of any work in which copyright subsists or in respect of any otherright given by the Copyright Act. COPYRIGHT REGISTRATION PROCESS  FILING APPLICATION Copyright application should bemade in Form IV along with “Statement of Particulars and Statement of FurtherParticulars”. The application should also have the payment of the prescribedfee at Copyright Office of the Department of Education. The Copyright Officeinitially provides a filing number and filing date and issues a filing receipt.Thereafter the application is formally examined by the office. Defects will becommunicated to the applicant. Once the application is found to be in order it isaccepted and the Copyright Office issues the registration certificate. It maytake 3-4 months time for registration of any work in the normal course.  DOCUMENTATION /  DETAILS TO BE ATTACHED WITH APPLICATION  Name, address and nationality of the applicant / author of the work Nature of applicant’s interest in the copyright i.e. OWNER / LICENSEE etc. Title of the work A declaration signed by the author Language of the work Whether the work is published or unpublished If the work is published, year and country of first publication and name, address and nationality of the publisher Year and countries of subsequent publications, if any Name, address and nationality of any other person authorized to assign or license the rights in the copyright Power of attorney for the firm Six hard copies of the work and three soft copies (For computer programs – 3 copies of the program on CD ROMs.)  REGISTRATION DURATION  Literary, Dramatic, Musical and Artistic Works, Photographs Sixty years from the beginning of the calendar year next following the year in which the author dies. Anonymous and pseudonymous works, Posthumous work, Cinematograph films, Sound records, Government work, Public Undertakings Work, International Organizations Work Sixty years from the beginning of the calendar year next following the year in which the work is first published.   REGISTRATION FEES  For filing an application forregistration of copyright in an artistic work which is used or capable of beingused as a trade mark, a no-objection certificate is required to be obtained fromthe Trade Marks Registry. An application for copyright in an artistic workother than which is used or capable of being used as a trade mark, can be madefiled directly with the Copyright Office. Please see the table below for relevantfee.   Second schedule to the Copyright Rules, 1958 Fee payable under the Copyright Act, 1957 For a licence to republish a Literary, Dramatic, Musical or Artistic work (Section 31, 31-A and 32-A) Rs. 400/- per work For licence to republish a Cinematograph Film (Section 31)  Rs. 600/- per work For a licence to republish a sound recording (Section 31) Rs. 400/- per work For a licence to perform an Indian work in public or to communicate the work to the public by Broadcast (Section 31) Rs. 200/- per work For an application for a licence to produce and publish a translation of a Literary or Dramatic work in any Language ) (Section 32 & 32-A Rs. 200/- per work For an application for registration or copyright in a:     Literary, Dramatic, Musical or Artistic work  Rs. 50/- per work   Provided that in respect of a Literary or Artistic work which is used or is capable of being used in relation to any goods (Section 45) Rs. 400/- per work For an application for change in particulars of copyright entered in the Register of Copyrights in respect of a:-     Literary, Dramatic, Musical or Artistic work  Rs. 50/- per work   Provided that in respect of a literary or Artistic work which is used or is capable of being used in relation to any goods (Section 45)     Rs. 200/- per work For an application for registration of Copyright in a Cinematograph Film (Section 45)      Rs. 600/- per work For an application for registration of change in particulars of copyright entered in the Register of Copyrights in respect of Cinematograph film (Section 45)        Rs. 400/- per work For an application for registration of copyright in a Sound Recording (Section 45)         Rs. 400/- per work For an application for registration of changes in particulars of copyright entered in the Register of Copyrights in respect of Sound Recording (Section 45)                Rs. 200/- per work For taking extracts from the indexes (Section 47)  Rs. 20/- per work For taking extracts from the Register of Copyrights (Section 47).         Rs. 20/- per work  For a certified copy of an extract from the Register of Copyrights of the indexes (Section 47)              Rs. 20/- per work For a certified copy of any other public document in the custody of the Register of Copyright or the Copyright Board    Rs. 20/- per work For an application for prevention of importation of infringing copies (Section 53) per place of entry Rs. 400/- per work  INFRINGEMENT OF COPYRIGHT Copyright in a work shall bedeemed to be infringed-  (a)    whenany person, without a licence granted by the owner of the copyright or theRegistrar of Copyrights under this Act or in contravention of the conditions ofa licence so granted or of any condition imposed by a competent authority underthis Act- 1.      doesanything, the exclusive right to do which is by this Act conferred upon theowner of the copyright, or 2.      permitsfor profit any place to be used for the communication of the work to the publicwhere such communication constitutes an infringement of the copyright in thework, unless he was not aware and had no reasonable ground for believing thatsuch communication to the public would be an infringement of copyright; or  (b)   whenany person- 1.      makesfor sale or hire, or sells or lets for hire, or by way of trade displays oroffers for sale or hire, or 2.      distributeseither for the purpose of trade or to such an extent as to affect prejudiciallythe owner of the copyright, or 3.      byway of trade exhibits in public, or 4.      importsinto India,any infringing copies of the work  Provided that nothing insub-clause (iv) shall apply to the import of one copy of any work for the privateand domestic use of the importer. Copyright in a work shall notbe deemed to be infringed-  The following acts shall notconstitute an infringement of copyright, namely:(i)                a fair dealing with a literary, dramatic,musical or artistic work for the purposes ofa.       researchor private study;b.      criticismor review, whether of that work or of any other work;(ii)              a fair dealing with a literary, dramatic,musical or artistic work for the purpose of reporting current events —a.       ina newspaper, magazine or similar periodical orb.      bybroadcast or in a cinematograph film or by means of photographs. Remedies against Infringement 1. Civil remedies - Injunction damages oraccount of profit, delivery of infringing copy and damages for conversion. 2. Criminal remedies - Imprisonment of the accused orimposition of fine or both. Seizure of infringing copies 3. Administrative remedies - Administrativeremedies consist of moving the Registrar of copyrights to ban the import ofinfringing copies into Indiawhen the infringement is by way of such importation and the delivery of theconfiscated infringing copies to the owner of the copyright and seeking thedelivery. Legal Jurisdiction  A suit relating to infringementof copyright should be filed in the District Court or High Court within whosejurisdiction the plaintiff resides or carries on business or where the cause ofaction arose irrespective of the place of residence or place of business of thedefendant. Limitation  The period of limitation for filing the suit is three yearsfrom the date of infringement. Precautions in Legal Action The most important precaution isto ensure confidentiality till the time that a raid or the Anton Piller orderactually takes place. Therefore, in a criminal action, a strategy that works wellis to file an action against unknown persons and obtain an order which empowersthe police to investigate within a certain period of time as also to search asmany number of times as they may during that period. This is quite a usefulorder. In a civil action, the name ofthe parties is mentioned. There is one strategy resorted to ensureconfidentiality which is to add a fictitious first party because the causetitle which appears in the list normally only gives the name of the first partyand even if the list is circulated.  Another strategy is to attempt tohave the Anton Piller order heard in camera. Although it is a perfectlylegitimate procedure in cases where confidentiality is of the essence, judgesare reluctant to hear matters in camera for fear that the Bar might go up inarms and claim that one particular lawyer was being favoured by the judge. Thejudges are cautious and this strategy is adopted very rarely. In a civil action even if youadopt these strategies between the time of filing of the action and the time ofobtaining of the order, the file has to go through several stages. Thus, thereare various areas where a leakage can take place. In a civil matter, anotherproblem area is that local commissioners appointed to search are normally thirdparty solicitors or attorneys, who may be busy lawyers and whose diaries maynot permit them to immediately leave their work and go on to execute the AntonPiller order. They may therefore agree to execute the order after a couple ofdays and that may be crucial because in the meantime the information may leakout. The content of this article isintended to provide a general guide to the subject matter. Specialist adviceshould be sought about your specific circumstances. FAQs Is it not true that strictapplication of the principle of protection of copyright hampers economic andcultural development of the society?Yes. If copyright protection isapplied rigidly, it can hamper progress of the society. However, copyright lawsare enacted with necessary exceptions and limitations to ensure that a balanceis maintained between the interests of the creators and of the community. Does the law allow any use ofa work without permission of the owner of the copyright, and, if so, which arethey?Subject to certain conditions, afair deal for research, study, criticism, review and news reporting, as well asuse of works in library and schools and in the legislatures, is permittedwithout specific permission of the copyright owners. In order to protect the interestsof users, some exemptions have been prescribed in respect of specific uses ofworks enjoying copyright. Some of the exemptions are the uses of the work 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 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. What is the scope ofprotection in the Copyright Act, 1957?The Copyright Act, 1957 protectsoriginal literary, dramatic, musical and artistic works and cinematograph filmsand sound recordings from unauthorized uses. Unlike the case with patents,copyright protects the expressions and not the ideas. There is no copyright inan idea. Who is the owner of copyrightin a government work?In the case of a government work,government shall, in the absence of any agreement to the contrary, be the firstowner of the copyright therein. Who is the owner of copyrightin works by journalists during the course of their employment?In the case of a literary,dramatic or artistic work made by the author in the course of his employment bythe proprietor of a newspaper, magazine or similar periodical under a contractof service or apprenticeship, for the purpose of publication in a newspaper,magazine or similar periodical, the said proprietor shall, in the absence ofany agreement to the contrary, be the first owner of the copyright in the workin so far as the copyright relates to the publication of the work in anynewspaper, magazine or similar periodical, or to the reproduction of the workfor the purpose of its being so published, but in all other respects the authorshall be the first owner of the copyright in the work. Who is the owner of a workproduced during the course of the author’s employment?In the case of a work made in thecourse of the author’s employment under a contract of service orapprenticeship, the employer shall, in the absence of any agreement to thecontrary, be the first owner of the copyright therein. Who is the owner of thecopyright in the case of a work produced for valuable consideration at theinstance of another person?In the case of a photograph taken,or a painting or portrait drawn, or an engraving or a cinematograph film made,for valuable consideration at the instance of any person, such person shall, inthe absence of any agreement to the contrary, be the first owner of thecopyright therein. Is copyright assignable?Yes. The owner of the copyrightin an existing work or the prospective owner of the copyright in a future workmay assign to any person the copyright either wholly or partially and eithergenerally or subject to limitations and either for the whole term of thecopyright or any part thereof. Can any person translate awork without the permission of the owner of the copyright in the work?No. A person cannot translate awork enjoying copyright without the permission of the copyright owner. Is there any copyright overnews?No. There is no copyright overnews. However, there is copyright over the way in which a news item isreported. Which are the internationalcopyright conventions of which Indiais a member?Copyright as provided by theIndian Copyright Act is valid only within the borders of the country. To secureprotection to Indian works in foreign countries, India has become a member of thefollowing international conventions on copyright and neighbouring (related)rights: Berne Convention for the Protection of Literary and Artistic works. Universal Copyright Convention. Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms. Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties. Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement. Which are the common copyrightinfringements?The following are some of thecommonly known acts involving infringement of copyright: Making infringing copies for sale or hire or selling or letting them for hire; Permitting any place for the performance of works in public where such performance constitutes infringement of copyright; Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ; Public exhibition of infringing copies by way of trade; and Importation of infringing copies into India. Has the owner of an auditoriumor a hall any liability while renting out the place for communication to thepublic of a copyrighted work?Yes. If a person permits forprofit any place to be used for the communication of a work to the public,where such communication constitutes an infringement of the copyright in thework, unless he was not aware and had no reasonable ground for believing thatsuch communication to the public would be an infringement of copyright, he willbe deemed to have committed an offence under the Copyright Act. What is the proof of theauthorship of a work?Where, in the case of a literary,dramatic, musical or artistic work, a name purporting to be that of the authoror the publisher appears on copies of the work as published, or, in the case ofan artistic work appeared on the work where it was made, the person whose nameso appears or appeared shall, in any proceeding in respect of copyright in suchwork, be presumed, unless the contrary is proved, to be the author or thepublisher of the work, as the case may be. Is copyright infringement acognizable offence?Any police officer, not below therank of a sub inspector, may, if he is satisfied that an offence in respect ofthe infringement of copyright in any work has been, is being, or is likely tobe committed, seize without warrant, all copies of the work and all plates usedfor the purpose of making infringing copies of the work, wherever found, andall copies and plates so seized shall, as soon as practicable be producedbefore a magistrate. Who is responsible forcopyright offence committed by a company?Every person who at the time theoffence was committed was in charge of, and was responsible to the company for,the conduct of the business of the company, as well as the company shall bedeemed to be guilty of such offence and shall be liable to be proceededagainst. Is Copyright RegistrationMandatory?Copyright comes into existence assoon as a work is created and no formality is required to be completed foracquiring copyright. Indiais a member of the Berne Convention as well as the Universal CopyrightConvention. Therefore, work created in other member states is accorded protectionin Indiaas well. Registration of copyright is not mandatory. However, it is advisable toapply for Registration of Copyright as the certificate of registration ofcopyright and the entries made therein serve as prima facie evidence in a courtof law with reference to dispute relating to ownership of copyright. What protection is availablefor Software Programmes in IndiaComputer Software or softwareprogramme can be registered as a ‘literary work’ under Copyright Act. As perSection 2(o) of the Copyright Act, 1957 “literary work” includes computerprogrammes, tables and compilations, including computer databases. ‘SourceCode’ has also to be supplied along with the application for registration ofcopyright for software products. Work that cannot be protectedby copyright?Several categories of materialare generally not eligible for Indian copyright protection. These include amongothers:Ø Works that have not been fixed in a tangibleform of expression, (for example, choreographic works that have not beennotated or recorded, or improvisational speeches or performances that have notbeen written or recorded)Ø Titles, names, short phrases, and slogans (seeTrademarks); familiar symbols or designs; mere variations of typographicornamentation, lettering, or coloring; mere listings of ingredients or contentsØ Ideas, procedures, methods, systems, processes,concepts, principles, discoveries, or devices, as distinguished from adescription, explanation, or illustration.Ø Works consisting entirely of information that iscommon property and containing no original authorship (for example: standardcalendars, height and weight charts, tape measures and rulers, and lists ortables taken from public documents or other common sources) How do I get permission to usesomebody else’s work and other subject matters?You can contact the right owner.For certain types of works and other subject matter, you can get permissionfrom a collective management organization. Collective management organizationslicense use of works and other subject matter that are protected by copyrightand related rights whenever it is impractical for right owners to actindividually. There are several international non-governmental organizationsthat link together national collective management organizations. Bibliography:  www.techterms.com, www.copyright.gov.in, www.en.wikipedia.org,www.depenning.com.