INTRODUCTION
Copyright protects literary and artistic works of authorial creativity. It is an authorship-based right, but also protects entrepreneurial works such as broadcasts, sound recordings, films, and published editions of literary, dramatic, and musical works. The ambit of copyright protection extends to, but is not limited to works such as books, novels, movie scripts, paintings, photographs, melodies, sound recordings, audio recordings, moving images, source codes, and object codes.
Unlike other types of IP, copyright protection is not subject to any registration formalities and it comes into existence as soon as the work is created.
A copyright owner is entitled to use and to authorize others to use the copyrighted work. Copyright protection is also available for a limited period of time after which the work passes into public domain.
COPYRIGHT IN DIFFERENT FIELD
Under the Copyright Act, 1957 the term “work” includes an artistic work, dramatic work, literary work (including computer programmes, tables, compilations and computer databases), musical work (including music as well as graphical notations), sound recording and cinematographic film.
1. Copyright in Literary work: Literary works are protected by copyright as they are in physical or tangible form. Literary work includes magazines, books, novels, newspapers, computer programming, coding, softwares, letters, e-mails, poetry, encyclopedia entries etc. The creator of a work is generally regarded as an owner of a work.
2. Copyright in dramatics Work: Copyright in the field of dramatic safeguards the creators, composers, choreographers, dramatists, poets, authoretc. It includes dance, screenplays, ballets, operas etc.A work of action, with or without words or music, which is capable of being performed before an audience.
Dramatic scripts typically have a performance component, however not all scripts are covered by this Act. It has a few exceptions, including:
a. Only the present script not the future work or script;
b. Title of program. A copy of following is required to get copyright protection for dramatic work:
- Film recording;
- Video/phone recording;
- Manuscript; and
- Printed copy.
3. Copyright in Musical Work: Section 2(p): 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. However, it excludes any actions or words which are intended to be sung/ spoken with the music. The author of the musical work is known as a composer.
4. Copyright in cinematograph films: Section 2(f) explains that 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 is a cinematographic work. Copyright will not subsist in a film if the substantial part of the film is an infringement of the copyright in any other work.
5. Copyright in sound recording: As a general rule, a sound recording or composition does not have a copyright unless it is initially released in India, or if it is published outside of India, unless the composer is an Indian citizen.
Because a musical work’s copyright includes other aspects, such as lyrics, which can be protected by literary work copyright, sounds for which a musical work’s copyright is sought will not be awarded if they infringe on the right of any other copyright, such as the author of its lyrical work. However, two different copyrights in the same work might exist, with each owner retaining exclusive ownership over their unique work.
6. Copyright in Artistic work: Section 2(c)a painting, a drawing (including a diagram, map, chart, or plan), an engraving or a photograph, whether or not any such work posses artistic quality: –
(a) A work of architecture;
(b) Any other work of artistic craftsmanship.
To be protectable, it should be an artistic work and it should be original as defined in the Act. No artistic quality is required.
DURATION OF COPYRIGHT
The duration of Copyright is 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication.
ASSIGNMENT AND LICENSE IN COPYRIGHT
1. Assignment:
The owner of the copyright of a work has the right to assign his copyright to any other person. The effect of assignment is that the assignee becomes entitled to all the rights related to the copyright to the assigned work. Mere grant of right to publish and sell the copyrighted work amounts to publishing right and not assignment of copyright. Where the assignee of a copyright becomes entitled to any right comprised in the copyright, he shall be treated as the owner of the copyright in respect of those rights.
2. License:
The license is granted against the exclusive rights which the owner/creator possesses. The license can be classified into following categories:
a. Voluntary license: The author or the copyright owner has exclusive rights in his creative work and he alone has right to grant license with respect to such work. A license can be granted not only in existing work but also in respect of the future work.
b. Compulsory Licenses: Compulsory and statutory licenses can impact both the identity of the licensee who the owner chooses to deal with and the terms, including rates of royalty that the owner may stipulate for such dealing. There are five main categories of compulsory licenses operating in India.
i. Licenses in respect of works unreasonably withheld from the public;
ii. Licenses in respect of orphan works;
iii. Licenses in respect of works for the differently abled;
iv. Licenses in respect of translations;
v. Licenses in respect of reproduction and sale of works unavailable in India.
c. Statutory Licenses: Statutory licenses, on the other hand, don’t need to look into the owner’s behavior. When a piece of work falls under the larger category of works that can be so licensed, it seeks a blanket takeover of the owner’s autonomy. There are two categories of statutory licenses:
i. Cover version recording licenses (Section 31C) and
ii. Broadcasting licenses (Section 31D).
The first has existed, though as part of the fair dealing exceptions in Section 52, from the very beginning. The second is a very recent addition to the Act vides the 2012 amendment.
REGISTRATION PROCESS OF COPYRIGHT
To obtain the copyright registration the following process has to be followed:
1. An application (including all the particulars and the statement of the particulars) in the format of FORM IV have to be sent to the registrar along with the requisite fees (mentioned in the Schedule 2 of the act.). A separate application has to be made for separate works;
2. Every application has to be signed by the applicant as well as an Advocate in whose favor a Vakalatnama or a POA has been executed;
3. The registrar will issue a Dairy No. and then there is a mandatory waiting time for a period of 30 days for any objections to be received;
4. If there are no objections received within 30 days, the scrutinizer will check the application for any discrepancy and if no discrepancy is there, the registration will be done and an extract will be sent to the registrar for the entry in the Register of Copyright;
5. If any objection is received, the examiner will send a letter to both the parties about the objections and will give them both a hearing;
6. After the hearing, if the objections are resolved the scrutineer will scrutinize the application and approve or reject the application as the case may be.
COPYRIGHT INFRINGMENTS
1. Direct infringement: It’s a strict liability offence and the amount of damages that should be given can be based on the offender’s guilty intention for the alleged infringement.
2. Contributory infringement: It is an assumption that the alleged contributory infringer knew about and participated in the infringement.
3. Vicarious infringement: Vicarious copyright infringement liability evolved from the principle of respondent superior. It not only focuses on the knowledge and participation but on the relationship between the direct infringer and the defendant.
REMEDIES AGAINST THE COPYRIGHT INFRINGMENT
There are three kinds of remedies against infringement of copyright, namely:
1. Civil remedies:- Injunction damages or account of profit, delivery of infringing copy and damages for conversion.
2. Criminal remedies:- Imprisonment of the accused or imposition of fine or both. Seizure of infringing copies.
3. Administrative remedies:- It consist of moving the Registrar of copyrights to ban the import of infringing copies into India when the infringement is by way of such importation and the delivery of the confiscated infringing copies to the owner of the copyright and seeking the delivery.
CONCLUSION
Copyright is the shield given by law in the hands of the original owner or author of any intellectual property to be protected against the whole world. Therefore, by giving this shield lawmakers encourage creativity and protect the original work of the creator. However, registration copyright is optional but there are chances of infringement of rights granted to copyright owner, for that there are remedies stipulated in the copyright act.
Author: Barbie Singh, Senior Associate (assisted by Akshita Mandaogade).
Disclaimer: The content of this article is intended to provide a general guide to the subject matter and that the same shall not be treated as legal advice. For any queries, the author can be reached at barbie@samistilegal.in
