03 copyrights

03 copyrights

• 1.
  © Brain LeagueIP Services Private Limited - 2011 1 COPYRIGHTS opyright grants exclusive rights over creative and artistic works for a limited period of time. The objective of the copyright law is to promote creativity through grant of such exclusive rights. It is believed that exclusive rights provide economic incentives for authors to create new works for the benefit of society. Once the limited term of exclusivity expires, the copyright protection over the work expires and the work falls into the public domain. Works in the public domain act as the basis for creation of new works. Nature of protection The Copyright law protects ideas expressed in a tangible form. Ideas by themselves do not get any protection under the copyright law. To get protection an idea should be expressed as literary, dramatic, musical, artistic, cinematographic or photographic work or as a sound recording1 . Such an expression should be in a tangible form such as on paper, canvas, tape and so on. Expression in an electronic form is also considered to be a tangible form of expression. Example: If Rama writes a story on a piece of paper, it is considered to be an idea expressed as a literary work in a tangible form and he would get copyright protection over it. He would also get protection if the same story is written in Microsoft Word. If a single idea can be expressed by different persons in different ways all of them can get copyright protection over their way of expression. For example: If three people draw the picture of Mother Teresa standing amongst slum dwellers in three different ways, all of them can get copyright protection over their specific way of expression. A copyright protects only the expression and not the idea underlying such expression2 . It is difficult to draw the line between an idea and its expression. Courts have been struggling to determine where an idea ends and where its expression begins. The merger of the idea with the expression is considered to be greater in the case of artistic, musical and cinematographic works than in the case of literary works. 1 The Copyright Act, 1957, Section 2 provides for the interpretation of the above mentioned expressions. 2 The Copyright Act, 1957, Section 13: Works in which copyright subsists. C
• 2.
  © Brain LeagueIP Services Private Limited - 2011 2 Once a work falls into the public domain, the work is said to be an idea available to the general public. Any person can use the work and get copyright protection over it. All works in the public domain are considered as ideas. Example: The epic 'Ramayana' is in the public domain and any person can express the story in his own way and get copyright protection over his way of expressing it. Rights A copyright grants a bundle of rights to the copyright owner. The rights granted by the copyright may vary slightly based on the type of work being protected. All the rights granted by a copyright are exclusive rights, which mean that no person can exercise such rights without taking the copyright owner's permission. The rights granted by the copyright law include: Right to Reproduce: No person can reproduce or make copies of the copyrighted work without permission of the copyright owner. For example, if Dr. Kalam writes and publishes a book on rocket science, no one can make copies of that book without taking the permission of Dr. Kalam. Photocopying is considered as making copies of the book. Right to Distribute: A copyright owner gets the exclusive right to distribute copies of his work to different people. No one can distribute the copyright owner's work without his permission. For example, if Rama writes a story book for children, no one can make copies and give the book to children without Rama's permission. Right of Adaptation: Adaptation means converting a work into a different form or using the work on a different platform. No person can make an adaptation of a work without the copyright owner's permission. For example, if 'A' wants to make a movie based on a detective book written by 'B', 'A' has to take B's permission. Right to make Derivative Works: A copyright owner gets the right to make improvements over this work. No one can make such improvements without taking the copyright owner's permission. For example, if 'Vinita' makes a black and white painting of Krishna, no one else can add colours without Vinita's permission. Right to Public Display: Public display of his work is the right of the copyright owner. No one can publicly display a copyright owner's work without his permission. For example, if 'X' makes a sculpture, no one can display that sculpture at a public place without his permission.
• 3.
  © Brain LeagueIP Services Private Limited - 2011 3 Right of Public Performance: A copyright owner has the right to publicly perform his work and no one can exercise such a right without his permission. For example, if 'X' wants to sing a song written by 'A', he has to take A's permission. Performers' and Broadcasters' Rights Copyright law grants certain rights to performers and broadcasters. These rights are of a different nature when compared to other rights under the copyright law and are therefore called as Related Rights. Performer’s Rights3 : A performer gets the right to make audio or visual recording and broadcasting of his performance. No one can make an audio/visual recording of a performance without taking the permission of the performer. Furthermore, the performance of the performer cannot be broadcast live by anyone unless it is permitted by the performer. For example, If a record label wants to make a sound recording of a singer, it has to take the permission of the singer. Furthermore, if a television channel wishes to give a live telecast of a singer's performance, the channel has to take the permission of the singer. Broadcaster's reproduction rights4 : A broadcaster gets the right to record and rebroadcast the broadcast. No person can make a visual or audio recording of a broadcast without the permission of the broadcaster. Furthermore, no one can rebroadcast a broadcast and charge viewers for viewing the broadcast without taking the authorization of the broadcaster. For example, if a TV channel wishes to rebroadcast a cricket match, they have to take the permission of the TV channel that delivered the live broadcast. No one can make a video recording of a live cricket match unless it is for private purposes. Term5 The term of copyright varies from work to work. Term for different works is provided in the table below: 3 The Copyright Act, 1957, Section 38 4 The Copyright Act, 1957, Section 37 5 The Copyright Act, 1957, Section 22 - Section 29.
• 4.
  © Brain LeagueIP Services Private Limited - 2011 4 Registration 6 Copyright protection does not require registration. It starts from the time the work is created. However, registration of a copyright provides certain advantages. One of the most important advantages is that it gives rise to a presumption of ownership of the copyright and therefore gives the owner the right to sue an infringer in the court or law. Copyright Infringement7 A person is said to infringe the copyright of the copyright owner, if he exercises the rights of the copyright owner over the copyrighted work without authorization. In order for infringement to exist, the work that is alleged to infringe upon the copyrighted work should be substantially similar to the copyrighted work. Infringement of a copyright in software by reproduction and distribution is generally termed as piracy. The liability for infringement may be civil and/or criminal. Fair use8 A person would not be liable for violation of a copyright of another person if he makes fair use of the copyrighted work. Use of a work is said to be fair if the work is used for education, news reporting, criticism and so on. 6 The Copyright Act, 1957, Section 44 – Section 50A 7 The Copyright Act, 1957, Section 51 8 The Copyright Act, 1957, Section 52
• 5.
  © Brain LeagueIP Services Private Limited - 2011 5 Suggested Further Reading Indian Copyright Basics Protect your website from Copyright Liability Copyright Law Law of Copyrights and Infringement Copyright Registration in India Salient features of Copyright Amendment Bill, 2010 Who’s Intellect who’s property? Copyright limitation on media freedom Value of Intellectual Property for music bands File sharing vis-a-vis Fair use doctrine Anti Circumvention Laws to protect Digital Rights Circumventing around anti-circumvention law