The Copyright Policy – by Pratiksha Rathi *

WIPO (World intellectual property organization) was establish WIPO is a specialized agency of United Nation, it promotes the protection of Intellectual Property throughout the world. ed in 1967. It has it’s headquarters in Geneva, Switzerland. The term “Intellectual Property” has come to be internationally recognised as covering, Patents, Copyrights, Trademarks, Industrial designs, know-how, and Confidential information. Intellectual Property arises from a human intellect. It is a product of human creation.

One of the major types of Intellectual Property is Copyrights. Copyrights is a right given by law to creators of literary, dramatic, musical and artistic works and production of cinematography and sound recordings. The basic aim of Copyrights is unlike patents or trademarks it protects the expressions and not the ideas behind. The key to get copyright is the creativity, which leads to encourage people to develop creativity in them. The idea of copyright protection began to emerge with the invention of printing. In 1709, there was an introduction of first Copyright Statute of Anne, which lasted until the Copyright Act 1911, come into force and abolished the statute of Anne. Copyright as the name suggests arose as a exclusive right of the author to copy the literature produced by him and to stop others from doing so. The concept was originally concerned with the field of art and literature but due to growing economy and several amendments and also due to growing potential of people it explored in various fields. In India law relating to copyrights is governed by Copyrights Act, 1957, which has amended from time to time in 1991, 1992, 1994, 1999 and 2012 to meet with the national and international requirements. The Statute relating to Intellectual Property in India is undergoing changes so as to bring them to harmonize with the corresponding laws in the developed countries. This became necessary after India signing the GATT and TRIPS and becoming a member of WTO.

AREAS IN WHICH COYRIGHT CAN BE OBTAINED:

According to Section 13 of Copyrights Act-

Copyright subsists in certain classes of works. They are-

  • Original literary, dramatic, musical, and artistic,
  • Cinematograph films,
  • Sound recording.

Case law – In Macmillan co. Ltd. V. K. and J. Cooper it was held that the word ‘original’ does not mean that the work must be of expression of original or inventive thought. Copyrights are not concerned with origin of ideas but with expression of thoughts and in case of literary works, with expression of thought in print or writing.

‘Literary work’ includes computer programmes tables, compilations including computer databases –s.  2(o).

‘Dramatic work’ includes any piece of recitation, choreographic work, or entertainment in dumb show, the scenic arrangement or acting, form which is fixed in writing or otherwise but does not include a cinematographic film –s.  2(h).

‘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 – s. 2 (p).

‘Artistic work’ means –

  • Painting, sculpture, drawing (including a map, chart, diagram or plan) photograph, whether or not such work posses artistic qualities.
  • A work of architecture
  • Any work of artistic craftsmanship –s. 2 (c).

In Fortune Films International V. Dev Anand and another in Bombay High Court – it was held that in view of definition of ‘artistic work’, ‘dramatic work’, ‘cinematograph film’, it would appear that Copyright Act does not recognise performance of an actor as ‘work’ which is protected by Copyright Law.

‘Architecture work’ means any building or structure having an artistic design or character, or any model of such building or structure – s. 2 (b).

‘Engravings’ include etchings, lithographs, woodcuts, prints, and other similar works, not being photographs –s. 2 (hh) (i).

‘Photograph’ includes photo lithographs and any work produced by any process analogous to photography but does not include any part of cinematograph films – s. 2(s).

‘Sculpture’ includes casts and models – s. 2 (za)

‘Cinematograph films’ means any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be constructed as including any work produced by any process analogous to cinematography including video films – s. 2(f).

‘Sound recording’ means a recording of sounds from which such sound is produced regardless of the medium on which such recording is the method by which the sounds are produced – s. 2(xx).

QUALIFICATION FOR COPYRIGHT SUBSISTENCE- SECTION 13(2) –

In order to qualify for copyright, the work should follow the mention rules –

  • The work is first published in India.
  • Where the work is first published outside India the author, at the date of publication must be a citizen of India. If the publication is made after the author’s death, the author must have been at the time of his death a citizen of India.
  • In case of unpublished works the author is on the date of making the work a citizen of India or a domiciled in India. This does not apply to foreign works of architecture.
  • In case of work of architecture, the work is located in India.

AUTHORSHIP AND OWNERSHIP –

“Author” as per section 2 (d)-

  • In case of literary or dramatic work the author i.e. the person who creates the work.
  • In case of musical work the composer.
  • In case of cinematography the producer.
  • In case of sound recording the producer.
  • In case of photography the photographer.
  • In case of literary, dramatic, musically, or artistic work which is computer generated the person who causes the work to be created.

In musical sound recording there are many rights holder-

For example- the lyricist who writes the lyrics, the composer who sets the music, the singer who sang the song , the musician(s) who performed the background music, the person or company who produced the sound recording.

In case of government work, government shall in absence of any agreement to contrary be the first owner of Copyright then.

In case of work made in course of author’s employment under a contract of service, for example newspaper, magazine or similar periodicals etc. The employer and not the author, in absence of any agreement to contrary be the first owner of the Copyright, for the purpose of its being published but in all other respects the author will be the first owner.

TERMS OF COPYRIGHT 

Section 22 to 29 deals with the copyrights in respect of published literary, dramatic, musically, and artistic works, anonymous and pseudonymous, posthumous, photographs, cinematograph films, sound recording, government works and works of international organization.

Literary, dramatic, musical or artistic works enjoy Copyright protection for the lifetime of the author plus 60 years beyond which is 60 years after his death. In case of joint authorship which implies collaboration of two or authors in production work, the term of copyright is to be constituted as the reference to the author who dies last.

In case of posthumous, anonymous, pseudonymous works, photographs, cinematograph films, sound recording, works of government, public undertake g and International organisation the term of protection is 60 years from the beginning of calendar year next following the year,  which the work has been first published.

For broadcasting organisation for a period of   25 years from beginning of the calendar year next following the year in which the broadcast is made.

In case of performance, performer has a special right for the period of 50 years.

INFRIGEMENT AND REMEDIES UNDER COPYRIGHT POLICY –

Section 51 – As per this section copyright in a work is infringed when any person without a licence granted by the owner of the copyright or the Registrar of Copyright or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority does —

1) Anything for which the exclusive right is conferred upon the owner of the copyright,

2)  Permits for profit any place to be used for the communication of the work to public where such a communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication would be an infringement of copyright.

3)  When any person (i) makes for sale or hire or lets for hire or by way of trade display or offers for sale or hire, or (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or (iii) by way of trade, exhibits in public, or (iv) imports into India any infringing copies of the work.

For example – In Bombay High Court in Hindustan Lever Ltd., v. Nirma Private Limited, Ahmedabad,   held that the dissimilarities were totally inadequate to wipe out general impression of the unwary purchaser. Thus, there was prima facie infringement of copyright. The case dealt with the infringement of the copyright in the label when there were only few changes made in the colourable imitation of label.

REMEDIES FOR INFRIGEMENT OF COPYRIGHT –

According to Section 54 – Section 62 of the Copyright Act provide for civil remedies under the Act.

Section 54 defines what should be included for the expression and owner of Copyright.

Case law –  In Rupendra Kashyap v. Jiwan Publishing House, it was held that CBSE is a public undertaking; examination papers are literary work made under the direction and control of CBSE and applicability of Section 17(dd) of Copyright Act is squarely attracted to the facts of the case. CBSE is the first owner of the copyright in the examination papers on which examinations are conducted by it.

Section 55 provides that where copyright in any work has been infringed, the all remedies like injunctions, damages and accounts as are conferred by law for the infringement of a right. However, if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground to believe that copyright subsisted in the work, the plaintiff will not be entitled to any remedy other than an injunction in respect of the infringement and a decree for the whole or part of the profits made by the defendant by the sale of the infringing copies as the court may, in the circumstances, deem reasonable.

Section 58 give rights to the owner of the copyright to initiate proceedings for the possession of infringing copies and other materials related thereto. In this context, the section clarifies that all infringing copies of any work in which copyright subsists and all plates used or intended to be used for the production of such infringing copies shall be deemed to be the property of the owner of the copyright.

APPEALS : Section 71 of the Act any person aggrieved by an order under sub-section (2) of Section 64 or Section 66 may, within thirty days of the date of such order, appeal to the court to which appeals from the court making the order ordinarily lie, and such appellate court may direct that execution of the order be stayed pending disposal of the appeal.

CONCLUSION : Copyrights Act confers a variety of rights on the author. Copyright is a well recognized form of property right which had its roots in the common law system and subsequently came to be governed by the national laws in each country.  Copyright law covers the areas of  literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. At the same time it is also necessary that intellectual labour and skills of author should be rewarded. One cannot denied the fact that piracy is increasing day by day in every form, so it has become necessary that strict and legit actions must be taken against the infringers. Besides traditional remedies, the non-traditional forms of remedies like, Anton Pillar Order, interlocutory injunction, etc, have assumed more popularity nowadays. In India, the law relating to copyright is governed by the Copyright Act, 1957 which has been amended in 1983, 1984, 1985, 1991, 1992, 1994, 1999 and 2012 to meet with the national and international requirements.

*Pratiksha Rathi – Yashwantrao Chavhan Law College, Pune.

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