Introduction to Copyrights PDF

INTRODUCTION TO COPYRIGHTS Manmohan.A. Amonkar Advocate, Bombay High Court Bsc Life Sciences, Msc Biotechnology (UK), LLB Email: [email protected] Mob: 9819813017  WHAT IS A COPYRIGHT Is a right/protection that is given by law to creators of literary, dramatic, musical and artistic...

INTRODUCTION TO COPYRIGHTS Manmohan.A. Amonkar Advocate, Bombay High Court Bsc Life Sciences, Msc Biotechnology (UK), LLB Email: [email protected] Mob: 9819813017  WHAT IS A COPYRIGHT Is a right/protection that is given by law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. (“Works”) Protects a wide variety of creative expressions such as novels, poems, music, paintings, photographs, sculptures, computer programs etc.  Requirements of Copyright Protection Work must be original There must be an expression of thought “No Copyright in an idea” Original work is work that is independently created and not copied from somewhere else Copyright also extends only to original contributions and not to elements of work borrowed from others  Copyrightable  WHY SHOULD COPYRIGHT BE PROTECTED? Safeguards the rights of authors Protection will encourage creativity Creativity is a keystone of progress Economic and social development is dependent on creativity  WHO IS AN AUTHOR Author means- (i) in relation to literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created. Joint Authorship means- 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;  Works Protected by Copyright 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 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 means- a 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. Cinematographic Film means- 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 and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. Dramatic Work means- includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film  Works protected by Copyrights Literary Musical Works e.g. Artistic Works e.g. Works books, poems, cartoons, paintings, e.g. songs, magazines, sculptures, architectural operas, speeches, works, blueprints etc musicals, Dramatic Photographic Works e.g. Works e.g. dance, plays, Photos etc mime  DIFFERENCE BETWEEN LITERARY AND DRAMATIC WORK Literary work is such work that allows itself to be read Dramatic Work is performance of a play etc based on a text e.g dialogue or action WHAT DOES COPYRIGHT NOT PROTECT? IDEAS It only protects the expression to that idea E.g. if X has a copyright over a book that FACTS explains a system of wine making, then Copyrights does not protect facts copyright in the book will allow X to whether historical, scientific or prevent others from copying texts or biographical but only the manner in diagrams from the book but it will not which such facts are expressed, grant X the right to prevent others from selected or arranged. using such machinery, processes explained for making wine SINGLE WORD Logic is that it involves no labour, skill and Titles, Two or Three Sentences, judgement. Slogans, Certificates WHAT DOES COPYRIGHT NOT PROTECT? USEFUL ARTICLES E.g. bathroom sink, computer monitors. However copyright protection will apply to Mathematical Formulations the article to the extent that such article Since there is a standardized contains pictorial, graphical features that notation of for expression of can be identified separately from the mathematical concepts, the idea utilitarian aspects of the article and expression are inseperable Example artwork on a T-Shirt Recipes If they only consist of list of ingredients but copyright protection can extend if there is explaination, illustration which accompanies the recipe e.g. cook book  TERM OF COPYRIGHT BERNE CONVENTION: Lifetime of Author + 50 years after death but longer period of protection can be given at National Level INDIA: Term of copyright in published literary, dramatic, musical and artistic works shall subsist, published within the lifetime of the author, until sixty years from the beginning of the calendar year following the year in which the author dies. reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.  TERM OF COPYRIGHT 2. 3. Anonymous/Pseudonomous Works 1. 60 years from the beginning of the calendar Cinematographic Posthumous Works year next following the year in which the work Fims 60 years from date of is first published. where the identity of the 60 years from beginning publication author is disclosed before the expiry of the said of the calendar year next period, the copyright exists for a period of sixty following the year in years, calculated from the beginning of the which the film is calendar year next following the year in which published. 4. the work is first published. Sound Recordings 5. 60years from the beginning Government Works of the calendar year 60 years from the beginning of the following the year in which calendar year next following the the sound recording is year in which the work is first published. published.  REGISTRATION OF COPYRIGHT Is it necessary to register work to claim copyright? NO However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. 4. 2. Download and Submit 1. form IV a/w documents Who is the Claimant? 3. What copyright and fees. Author or Register as user protection sought NB: for each work a organization separate application 6. must be filed 5. Objections or No 1. Examination of objections If objections satisfied, application. If objections raised then proceed for Waiting period is applicant is informed registration 30 days about a hearing https://copyright.gov.in/UserRegistration/frmLoginPage.aspx EXCLUSIVE RIGHTS OF COPYRIGHT OWNER Literary Dramatic Artistic Work Work Work Musical Cinematograph Sound Work ic Work Recording ARE COPYRIGHTS THE SAME FOR ALL CLASSES OF  EXCLUSIVE RIGHTS Literary Dramatic Artistic Musical  Right to Reproduce the work * * * *  Right to issue copies of work to the public * * *  Right to perform work in Public * * *  Right to communicate work to Public * * * *  Right to make cinematograph film * * * * or sound recording in respect of the work  Right to make translation of the work * * *  Right to make adaptation of the work * * * *  EXCLUSIVE RIGHTS IN CINEMATOGRPAHIC FILM Right to make a copy of the film including a photograph of any image forming part thereof Right to sell or give on hire or offer for sale or hire a copy of the film To communicate the cinematograph film to the public.  Rights Under Copyright Economic Rights: Are rights that help author reap economic benefits from his creation Right of Reproduction: Copyright owner in a literary, dramatic, musical, artistic, cinematograph film and sound recording work has an exclusive right to reproduce the work or authorize the reproduction of work in any material form. reproduction' and 'copying' have been used simultaneously but it does not include cases where an author or compiler produces a substantially similar result by independent work without copying. It must also be noted that to constitute reproduction, copying need not be in toto; even substantial reproduction will amount to reproduction. Right of Distribution: is the right to put copies of the copyrighted work into the commercial market. Once copies are in circulation the right to distribute no longer exists i.e. the right gets exhausted. eg: A has already sold the copies of his work in the market and B subsequently markets pirates copy of A's work. B has infringed the right of reproduction of A and not the right to issue copy to the public.  Rights Under Copyrights Right to Communicate Work to the Public: Right to make available the work to the public. It also covers transmission over a computer network. Right to make translation of the work: Right to reproduce the work in a language other than the original version. To translate work, consent of author of the work is necessary. Right to make adaptation: adaptation means: i. in relation to a dramatic work, the conversion of the work into a non-dramatic work; ii in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise; iii in relation to a literary or dramatic work, any abridgment of the work or any version of the work in which the story or action in conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; iv. in relation to a musical work, any arrangement or transcription of the work v. in relation to any work, any use of such work involving its rearrangement or alteration “Adaptation is a derivative work or remix and is something created from a copyrighted work, and that creation is sufficiently original to be protected by copyright.  ADAPTATION: a screenplay based on a novel a book translated from one language to another a chapter in an open textbook that blends multiple open educational resources. PERMISSION IS REQUIRED FROM COPYRIGHT OWNER TO MAKE ADAPTATION In case of computer programs - which are considered literary works - an adaptation is a version of the work that is not a reproduction. The adaptation may or may not be in the same language, code or notation the work was originally expressed in. In case of musical works, an adaptation is a new arrangement or transcription. There is no right of adaptation for artistic works, cinematographic films or sound recordings. However, in making an adaptation of any of these works you would be making a reproduction. You would need to consider how much of the original work is used (and remains recognisable) in the modified version. Each case would need to be considered on its own merits, but it is likely that unless you can reproduce the work as permitted under the Copyright Act, you will need to seek permission from the copyright owner. Once an adaptation is created, copyright exists in the adapted work.  ADAPTATION CONTINUED Copyright is both a positive and a negative right though: it allows its owners to exploit it on one hand, and on the other, it prevents others from exploiting it. Therefore even if the owner of the new material in the adaptation were not capable of exploiting that new material himself because it was not capable of standing alone without the original work, he would still be able to prevent others from exploiting the new material which he had authored in the process of creating the adaptation. ADAPTATION: is essentially the same as the original work although there may be a change in the format. DERIVATION: is based on the original work but is different from it since it incorporates an original contribution from its creator. TRANSFORMATION: is a work which is completely new but is based on the raw data contained in the original work. ADAPTATION CONTINUED Both adaptations and derivations would infringe the original work, assuming that the original work had copyright subsist in it, in the absence of a licence from the owner of the copyright in the original work, but a transformation would not infringe the copyright in the original work and it would not require any licence from the owner of the copyright in the original work to be obtained for its creator to be able to exploit it. This is because both an adaptation and a derivation would substantially rely and rest on the original work, while a transformation would only use raw data in the original work i.e. ideas which are, in any case, not protectable by copyright. PERFORMER’S RIGHTS PERFORMER: includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. PERFORMANCE: in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers. RIGHTS OF A PERFORMER: Right to make a sound recording or visual recording of the performance; Right to reproduce the sound recording or visual recording of the performance; Right to broadcast the performance; Right to communicate the performance to the public otherwise than by broadcast. TERM OF PERFORMER’S RIGHTS 25 years Once a performer has consented for incorporation of his performance in a cinematograph film, he shall have no more performer’s rights to that performance.  BROADCASTER’S RIGHT BROADCAST: means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire. RIGHTS OF A BROADCASTER: right to re-broadcast the broadcast; right to cause the broadcast to be heard or seen by the public on payment of any charges; right to make any sound recording or visual recording of the broadcast; right to make any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence; and right to sell or hire to the public, or offer for such sale or hire, any sound recording or visual recording of the broadcast. TERM OF BROADCASTER’S RIGHTS 25 years from the beginning of the calendar year next following the year in which the broadcast is made.  MORAL RIGHTS 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 acts in relation to the said work which is done before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation. Moral rights are available to the authors even after the economic rights are assigned. The moral rights are independent of the author’s copyright and remains with him even after assignment of the copyright.  COPYRIGHT INFRINGEMENT IS THE UNAUTHORIZED USE OF WORKS PROTECTED BY COPYRIGHT LAWS i. Making infringing copies for sale or hire or selling or letting them for hire; ii.Permitting any place for the performance of works in public where such performance constitutes infringement of copyright; iii.Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ; iv.Public exhibition of infringing copies by way of trade; and v. Importation of infringing copies into India. E.g. Illegally downloading music files, Recording a movie in a theatre, Including someone else’s photographs on a website without permission REMEDIES TO COPYRIGHT INFRINGEMENT CIVIL (Section 55) CRIMINAL Civil --- Preventive remedies and compensatory remedies Preventive Remedies a) Injunction: by which affected party seeks to obtain order from court an order to restrain the infringer from continuing with the infringement pending the trial. Compensatory Remedies: a) Damages, b) Delivering up of the infaction taken against a defendant to recover the profits on account of his breaching the copyright owner’s rights ringed copyright material, c) Account of Profits: Copyright Infringement is also a Criminal Offence. minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh.  EXCEPTIONS TO COPYRIGHT INFRINGEMENT FAIR USE DOCTRINE: Legal doctrine that permits the use of copyrighted work without the owner’s consent. The 4 elements that determine fairness are it’s done for nonprofit, educational purposes it transforms the original work enough to change its purpose and character it uses only a limited portion of the original work it does not harm the copyright’s value includes instances where copyrighted material is referenced, quoted or sampled within a larger work for the purpose of reporting, parodying or providing criticism or commentary.  EXCEPTIONS TO COPYRIGHT INFRINGEMENT Personal Use: For personal use, such as collecting personal collections of music or films or generating backup copies of the software, people are allowed to create copies of copyrighted works. Educational Use: Within specific parameters, teachers and students are permitted to utilize copyrighted materials for academic reasons, such as in lectures, tests, or research. The usage, however, must be non – commercial and must not harm the marketplace for the original work. Libraries and Archives: Single reproductions of copyrighted works may be made by libraries and archives for preservation, research, or study. Users may also request copies of these, subject to some restrictions. Parody and Satire: As long as it doesn’t amount to a complete replica of the work and doesn’t hurt the demand for the original work, copyright law permits the use of copied content for parody or satire. Government Works: Works created by the Indian government or its agencies do not enjoy copyright protection and are considered public domain. DEFENCES TO COPYRIGHT INFRINGEMENT Invalidity of Copyright Defendant may show that he has a valid license Work is in public domain The case of infringement has been filed after limitation period has expired