Registration of Copyright and Infringement of Copyright
Under Indian Copyright law, registration is not a pre-requisite for acquiring a copyright in a work. A copyright in a work is created when the work is created and given a material form, provided it is original.
However, the Act provides a procedure for copyright registration. Such registration does not confer any special rights or privileges with respect to the registered copyrighted work. It is however suggested that the owner of such original works register it as the certificate of registration of copyright and the entries made on the Register serve as prima facie evidence in a court of law when a dispute relating to ownership of copyright arises. Copies of the entries and extracts from the Register that are certified by the Registrar of Copyrights are admissible as evidence in all courts. Thus, registration only raises a presumption that the person in the Register is the actual author, owner or rights holder. In infringement suits and criminal proceedings, when time is of essence to obtain urgent orders, registration is of tremendous help.
Rights related to a work can be further assigned, transferred or licensed. An assignment of copyright shall be valid only when it is in writing, signed by the assignor or by his/her duly authorised agent.
The moral rights vested with the author or the creator cannot be transferred or assigned.
Further, a copyright is infringed if a person without an appropriate permission or licence does anything that the owner of the copyright has an exclusive right to do. There are two classes of infringement: primary infringement and secondary infringement.
Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.
- Issuing copies of the work to the public
- Renting or lending the work to the public
- Performing, showing or playing a copyright work in public
- Communicating the work to the public
- Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaption.
Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:
- Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire
- Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright
- By way of trade exhibits in public
- Imports into India
There are certain acts permitted with respect to copyright works which act an exceptions to infringement of copyright. Under the Act there are certain circumstances which constitute fair dealing, which is not considered an infringement.
The lists of non-infringing acts are summed up below:
- Parody – There must be no intention to compete with the copyright holder, and the motive for use of copyrighted matter must not be improper.
- Private use, including research – Applicable only to literary, dramatic, musical or artistic works.
- Criticism or review, Reporting of current events, through newspaper, magazine or similar periodical, photographs or film
- Reproduction of any work for the purpose of judicial proceedings or a report of judicial proceedings, or in any work produced by any house of any Legislature, exclusively for the use of the members of that Legislature.
- The making of copies or adaptation of a computer program in order to utilise the computer program for the purposes for which it was supplied; or to make back-up copies purely as a temporary protection against loss, destruction or damage.
- Any act done to achieve operating inter-operability of an independently created computer program with other programs by a lawful possessor of a computer program.
- The making of copies or adaptation of the computer program from a personally legally obtained copy for non-commercial personal use.
- The reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force.
- The reading or recitation in public of any reasonable extract from a published literary or dramatic work.
- The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions.
- Reproduction of a literary, dramatic, musical or artistic work by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination; or in answers to such questions.
- The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a sound recording. (The audience must be limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution or the communication to such an audience of a cinematograph film or sound recording)
- The making of sound recordings in respect of any literary, dramatic or musical work, if sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, or the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him.
- The causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the common use of residents in any residential premises (not being a hotel or similar commercial establishment) as part of the amenities provided exclusively or mainly for residents therein; or as part of the activities of a club or similar organisation which is not established or conducted for profit; or as part of the activities of a club, society or other organisation which is not established or conducted for profit.
- The performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution.
- The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction.
- The publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public.
- The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.
- The storing of a work in any medium by electronic means by a non-commercial public library for preservation, if the library already possesses a non-digital copy of the work.
- The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.
- The reproduction or publication of any matter which has been published in any Official Gazette except an Act of a Legislature, or any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter, or the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government, or any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court.
- The production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder.
- The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.
- The making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work failing under Section 2(c)(iii) of the Act, if such work is permanently situated in a public place or any premises to which the public has access.
- The inclusion in a cinematograph film of any artistic work permanently situated in a public place or any premises to which the public has access; or any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the film.
- The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.
- The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony held by the Central Government or the State Government or any local authority.
- The adaptation, reproduction, issue of copies, or communication to the public of any work in any accessible format by any person to facilitate persons with disabilities to access the works; or any organisation working for the benefit of persons with disabilities in the case that the normal format prevents the enjoyment of such work by such persons.
Further, under the Act, hypertext linking does not per se constitute copyright infringement; however, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in the case of hyperlinking, the linking site is not reproducing any work. If the reproduction occurs, it is at the user’s end, who visits the linked page via the link. Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is at the user’s discretion to access the work by clicking the link. But, nevertheless, the linking site is definitely aiding in the distribution of the work.
Under the Act, an infringement of copyright is actionable by the copyright owner. When copyright is licensed, the authority to bring an infringement action depends on the type of licence involved. An exclusive licence authorises the licensee to exercise a right which would otherwise be exercisable exclusively by the copyright owner. One such right is the right to bring an infringement action. A non-exclusive license may also authorise the licensee to bring an infringement action but only where the licence is in writing and signed by the copyright owner and expressly grant.