Copyright act unitiv ( part i) [compatibility mode]

COPYRIGHT

SANJEEV KUMAR CHASWAL
Advocate & IPR Attorney
UNIT- Part-
IPR UNIT-IV COPYRIGHTS Part-I

What Is Copyright?
Copyright is a form of intellectual property protection
granted under Indian law to the creators of original
works of authorship such as literary works (including
computer programs, tables and compilations including
computer databases which may be expressed in
words, codes, schemes or in any other form, including
a machine readable medium), dramatic, musical and
artistic works, cinematographic films and sound
recordings.
recordings.

Copyright law protects expressions of ideas rather
than the ideas themselves. Under section 13 of the
themselves.
1957,
Copyright Act 1957, copyright protection is conferred
on literary works, dramatic works, musical works,
artistic works, cinematograph films and sound
recording.
recording. For example, books, computer programs
are protected under the Act as literary works.
works.
Copyright refers to a bundle of exclusive rights vested
in the owner of copyright by virtue of Section 14 of the
Act.
Act. These rights can be exercised only by the owner
of copyright or by any other person who is duly
licensed in this regard by the owner of copyright.
copyright.
These rights include the right of adaptation, right of
reproduction, right of publication, right to make
etc.
translations, communication to public etc.

History of Indian copyright Law

The Indian Copyright Act, 1957 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 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 Convention
of 1886 (as modified at Paris in 1971),

History 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 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 – Main
Features
Performing rights societies’ rights (for
instance, music royalties)

Definition of categories in which copyright
actually subsists

International copyright

Definition of infringement

Copyright (Amendment) Act 1983
and 1984
1983 Act
Berne and Universal Copyright
Conventions grant of compulsory
licenses by developing countries,
publication by deceased authors
1984 Act:
discouraging
and preventing widespread video piracy

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
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
PROTECTION

“Originality” – it
should originate
from the author –
product of
independent
creation

“Fixation” – should
be expressed in a
material form

WHO OWNS THE COPYRIGHT IN A
WORK?
The Creator
Exceptions:
Exceptions:
– Written agreement
to the contrary
– Employee
– Specially
commissioned
work
– Made for valuable
consideration

What Copyright Protects

Original Literary, Dramatic, Musical and
Artistic Works
Cinematograph Films
Sound Recordings

Literary Works

Novels, poems, short stories
Computer programmes, tables, computer
databases
Song lyrics
Books on any subject

Computer Software

Which Includes
Programme Manuals
Punched Cards
Magnetic Tapes/Discs
Computer printouts
Computer programmes

Who 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 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 work
Artistic work - 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
– Any other work of artistic craftsmanship.
Musical work
– "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.


Sound recording- "Sound recording" means a
recording-
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.
Cinematograph film- "Cinematograph film" means any
film-
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.

Government work - "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
India.

Duration of copyright
Literary sixty years from the
dramatic, beginning of the calendar
musical and year next following the
artistic works (other year in which the author
than a photograph) dies.

Anonymous and
pseudonymous works
Posthumous work sixty years from the
Photographs
Cinematograph films beginning of the calendar
Sound records year next following the
Government work
Public undertakings year in which the work is
work first published.
International
organisations work

COPYRIGHT – A BUNDLE OF RIGHTS

Economic Rights Moral rights

– Reproduce or make
copies
– Right of
copies-
– Issue copies- sell,
acknowledgement
distribute, etc .
– Right to object against
– Display to public
mutilation /distortion of
work
– Adapt

– Assign/License

Assignment of copyright section
18, 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 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 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 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 Terminals
India 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 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
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 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
rights is not specified, it shall be presumed to
extend within India.

Assignment 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 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
copyright and it’s licensing
An 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 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
of 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 Rights
Rights of Broadcasting Organisation and of
Performers Broadcast reproduction right
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.
Performer’s right
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 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,
1952, para 9)

Copyright only in material form principle of
fixation

Moral Rights of an Author under
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 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.
“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.

Re-
Re-sale & 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.
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 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 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 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
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 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
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.

Copyright act unitiv ( part i) [compatibility mode]

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Copyright act unitiv ( part i) [compatibility mode]