Copyright

Copyright is a right granted by the law to creators of literary, dramatic, musical and artistic works and the makers / producers of cinematograph films and sound recordings. It is also referred to as a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.

The protection provided by Copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, promotes creativity and encourages individuals to create more.

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Copyright only protects the expressions and not the ideas. There is no Copyright protection for ideas, procedures and methods of operation or mathematical concepts as such.

Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.

• copying;
• 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.

The protection and rights under the Copyright laws is granted to original work. However, there is no Copyright protection for titles or names, short word combinations, slogans, phrases, plots or factual information, methods of operation, procedures or mathematical concepts.

A Copyright grants protection to the creator and his or her representatives for the works and prevents such works from being copied or reproduced without their consent.

The creator of a work can prohibit or authorise anyone to:

• reproduce the work in any form, such as print, sound, video, etc.;
• use the work for a public performance, such as a play or a musical work;
• make copies/recordings of the work, such as via compact discs, cassettes, etc.;
• broadcast it in various forms;
• translate the same to other languages.

No, it is not mandatory / necessary to register a work as a Copyright.  The acquisition of Copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created.

However, certificate of registration of Copyright serve as, prima facie, evidence in a court of law with reference to dispute relating to ownership of Copyright.

The Application for Copyright Protection can be filed at the Copyright Office, which is located in New Delhi.

The duration of protection for Copyright works varies according to the type of work and the date of creation of the work. It is divided as follows:

• Literary, dramatic, musical or artistic works: The Copyright expires after 60 years from the end of the calendar year in which the author dies. Where a work has a joint author/co-author, it expires 60 years from the end of the calendar year in which the last known author dies. Where the author’s identity is unknown, Copyright expires 60 years from the end of the calendar year in which the work was first published.
• Cinematograph films: The Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the film is published.
• Sound recordings: The Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the sound recording is published.

An author’s moral right, which is a right against distortion, is available even after the expiry of the term of Copyright.

The “first owner” may be determined as follows:

• Literary, dramatic or artistic work (which includes a photograph, painting or a portrait) created during the course of employment or under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the author of such a publication shall, in the absence of a contract to the contrary, be the first owner of Copyright. However, such ownership shall vest with the proprietor of the publication only for the limited purpose of publishing the work or a reproduction of the work in a publication and, for all other purposes, the Copyright shall vest with the author of the work.
• In a photograph, painting or portrait, which has not been made for the purposes of publication in a periodical but has been made for any other purpose, then in the absence of a contract to the contrary, the Copyright in such work shall vest with the person at whose instance the work was created.
• In the case of a cinematograph film, in the absence of a contract to the contrary, the Copyright in the cinematograph film shall vest with the producer of the film (i.e. the person at whose instance the film was made for a valuable consideration).
• In the case of a work made during the course of employment or under a contract of service or apprenticeship, the employer shall, in the absence of a contract to the contrary, be the first owner of Copyright. In the case of a government work, the Copyright in the work shall vest with the Government.

Yes, both published and unpublished works can be registered.

Yes, computer Software or programme can be registered as a ‘literary work’. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and compilations, including computer databases. “Source Code” and “Object Code” have also to be supplied along with the application for registration of Copyright for software products.

Yes, the Copyright Act, 1957 recognises joint authorship which means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.

The joint authors fully enjoy all of the rights granted by the Copyright Act, 1957. The term of Copyright of a work of joint authorship is calculated with respect to the author that dies last.

Under the Copyright Act, 1957, there are certain exceptions which constitute fair dealing/fair use, and are not considered an infringement. Section 52 of the Copyright Act, 1957 provides for certain exceptions to infringement of Copyright and the same is reproduced below in the table identifying the various clauses of fair dealing and fair use:

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 byway 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.

The Copyright Act, 1957, provides the following remedies for Copyright infringement:

• Civil;
• Criminal;
• Administrative.

The courts can direct that infringing websites be blocked by internet service providers (ISPs) either as part of a John Doe order or a website-blocking order. The Copyright Act, 1957, says that any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Copyright Act, 1957, with the intention of infringing such rights, shall be punishable.

The Copyright Act, 1957, prescribes that the intentional infringement or abetment of an infringement of the Copyright in a work would be considered as criminal act. Criminal remedies for Copyright infringement include:

• punishment through imprisonment which may not be less than six months but which may extend to three years;
• fines which shall not be less than Rs.50,000 and which may extend to Rs.200,000;
• search and seizure of the infringing goods including plates, which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work;
• delivery up of infringing copies or plates to the owner of the Copyright.