Topics on Copyright that can help for an Informed Decision.
COPYRIGHT: All rights reserved!
Introduction to Copyright!
A copyright is an intellectual property that secures a bundle of rights for an original work to its “author”. Such work or creation needs to be original and artistic in nature to attract protection under the Copyright law.
The rights which are granted under the Copyright law in India include rights of reproduction, communication to public, adaptation and translation of the copyrighted work in any other form. The set of rights associated with each work depends upon the kind of copyrighted work.
For instance - a song might have copyright for multiple people including -
- the lyricist who has rights in the words of the song,
- the composer, who has rights in music of the song;
- the producer, who might own the song in its entirety.
Copyright comes into existence as soon as a work is created. It is advisable to apply for registration of copyright as the Certificate of Registration proves to be evidence in a court of law with reference to disputes relating to ownership of copyright.
So, did you know that the song you composed is an intellectual property? This implies that you can sue anyone copying that self-composed song. Crazy right? Welcome to the world of Copyrights!
There have been multiple instances where we’ve seen a renowned song composer be accused of “theft” or of “copying” a song composed by a lesser known individual. What happens? The renowned composer wins, of course. This scenario can be avoided in cases where the author of such work gets it copyrighted.
Copyright protects the original expression of any creative works like stories, drama or even paintings. Such expression should be on a piece of paper or in some tangible manner.
How does the law protect the song notes and other artistic work? Is a registration required? Copyright does not require a formal registration. The moment you translate your creative work into a tangible form, the protection of copyright becomes applicable.
Registration however, gives more protection by creating a public record of your work and giving you a “legal ownership”. It makes you eligible for the legal benefits under the Copyright Act which can’t be claimed otherwise. In case of slight infringement, the author is not required to establish ownership in the copyright, which might be a requisite otherwise. Once your Copyright is registered, you need not take a burden of proof to prove who the real owner of the document is and the conflict can be settled using the Registry record.
In simpler words, if you haven’t registered your copyright to your song yet, you will have to give evidence for everything including the handwriting in the notes, the ownership of the sheets, dates on these notes & sheets etc.
The process to register a copyright is easy and hassle-free, if you have the right lawyer to do it for you! Your lawyer will submit an application on your behalf, after that the process will be completed in three simple stages-
Process 1:- No Objection
On filing of the copyright application, the Copyright office will issue you a ‘diary number’. After that you need to wait for a mandatory 30 days to invite general public to raise any objection against your copyright claim. If no objections are raised, your claim will be processed by the examiner for its authenticity. If he is satisfied, he will enter the details into the official Copyright Register and will issue you the extract from the Register as a Certificate.
Process 2:- Discrepancy in Copyright Claim
In case the examiner is not satisfied with your claim, he will send a discrepancy letter to you. A reply to the same can be filed by your lawyer and a hearing shall be granted. Whether the registration will be approved or not, will depend upon the reasons presented. If the examiner is still unsatisfied, you will receive a rejection letter stating the same.
Process 3:- Yes Opposition
In case someone files an opposition against your claim, then the registrar will send both the parties a letter intimating the same. The parties may file a reply and then a hearing will be appointed by the registrar. The decision as to whether the copyright claim shall be processed for further examinations to the Registrar shall depend on the verdict of the hearing. If the objections against the claim are correct, then a rejection letter will be sent to the applicant and the case will be closed.
Subsequent to the Opposition, if the entire proceeding is concluded or if an opposition is not filed, the Applicant’s application is registered and the Copyright is granted.
Copyright Infringement is a serious offence which is not looked upon in a light manner by entities who are the owners of copyright. One should tread really carefully when he/she is seeking inspiration from the work of another and should be vigilant enough to identify the line between inspiration and imitation. However, we must first understand as to what constitutes Copyright Infringement.
According to the Copyright Act, 1957, a Copyright is said to be infringed when anyone:
- Does anything, without permission, which only the Copyright owner has the exclusive right to do.
- Communicates Copyright material to the public without permission from the Copyright owner.
- Sells, offers for sale, lets for hire any infringing Copyright material, without authority.
- Exhibits in public, the infringing Copyright material.
- Imports infringing Copyright material.
So now that we know as to what constitutes a Copyright Infringement, let us delve into the remedies available for the same.
- According to the Copyright Act, 1957, every owner of a copyright is entitled to all such remedies by way of injunction, damages, rendition of accounts and other curative measures which are available for the infringement of a right.
- When the infringer proves that he was not aware of a copyright subsisting in the infringing work, then the Copyright Owner has remedy in the form of injunction and a decree for the whole or part of profits of the infringer.
There is penalty for the infringer in the form of imprisonment as well. According to the Copyright Act, 1957:
- The Infringer of a Copyright work shall be liable to imprisonment ranging between 6 months & 3 years and a fine ranging between Rupees 50,000 and 2 Lakhs.
- Where the infringer is convicted subsequently with regard to the same Copyright, the imprisonment ranges from 1 year & 3 years and a fine between Rupees 1 Lakh and 2 Lakhs.
- Where the infringement is committed by a company, every person who is responsible for the conduct of the company, at the time of the infringement, shall be liable for it.
A protection under copyright can only be granted with respect to certain categories of ‘works’ which have been created by use of one’s skills, talent and application of mind. Along with protection of the work, a copyright also grants certain rights to the creator of such work against infringement of the same. Section 13 of the Copyright Act, 1957 enumerates the categories of works that can be protected under the purview of Copyright law, as follows-
- Literary Work- It has a broad definition since it covers all forms of works expressed in writing, like a novel, script, poem, article etc. For the purpose of Copyright, literary works include those computer programmes, tables and databases, which can be expressed in writing. It does not include a slogan, title, sentence or a phrase.
- Dramatic Work- It includes recitation, choreography, entertainment through live- theatre acting, where the script is present in a written form but is performed on stage. It does not include cinematographic films because such kinds of films are presented in a recorded format.
- Musical Work- It includes only those musical works which are presented in the form of graphical notations i.e. through the use of musical symbols. It does not include lyrics and recorded songs. For example- guitar and piano notes etc.
- Artistic Work- All creative works including a painting, drawing, sculpture, diagram, map, chart, photograph, engraving, work of architecture, etc. Such work needs to be an original creation of the author.
- Sound Recording- It includes all those recordings that are composed of different sounds and recorded on a device. Such sounds do not need to be created through some particular instrument only. The medium of sound is immaterial. Similarly, the device on which such recording has been made is also irrelevant to protect a sound recording under Copyright Law. Obvious sounds like a horn, tick-tock of a clock, footsteps etc cannot be protected under Copyright Law.
- Cinematograph Films- It includes moving images or videos / motion pictures which are accompanied by a sound recording. In other words, an audio- visual graphic or video film can be protected under Copyright Law.
Translations, conversions, reproduction and adaptations of above works in another format also fall under the purview of Copyright Law. To get these ‘works’ protected, one must file an application to obtain Copyright through an IP attorney before the Registrar of Copyrights. After obtaining a protection, in case of an infringement against the protected copyright, a punishment can be attracted under the Copyright Act, 1957.
A copyright is a bundle of rights which are given to the author of an original work in accordance with the Copyright Act, 1957. ‘Literary work’ can be granted protection under Copyright law.
Literary work has been given a wide definition . It includes original and translated poems, novels, stories, books, scripts, articles, etc. Apart from the obvious interpretation that is ascertainable, literary work also includes computer programs, database, tables and compilations- that can be denoted in a written form.
Originality is the foremost important requirement that needs to be fulfilled by any person applying to obtain a copyright protection over the literary work. It means that the work may be inspired by another, but must be different enough to bear an exclusivity. Even a translation can be protected under copyright law, provided that it has never been produced before.
The Act states that copyright shall subsist during the lifetime of the author and sixty years from the year subsequent to the author’s death. Where the work is published anonymously or pseudonymously or posthumously, copyright shall subsist for a period of sixty years from the year subsequent to the year when the work is published. The rights that an author gets entitled to when a copyright is obtained in case of a literary work are-
- Right to reproduce work- hardbound or paperback editions, etc.
- Right to publish and distribute copies of work among general public.
- Right to produce translation in any language.
- Right to make an adaptation in the form of a series, movie, comic, game, etc.
- Right to convert or re-arrange the work.
In case of a computer programme, the author gets entitled to sell or rent the work to another person as many times as the author wishes. There is no express limit to the number of times that a computer programme can be lent or sold.
After submitting an application to the Copyright Board, any person can obtain a license over the right to produce or publish a translation of a literary work, but only after 7 years have passed since the first publication of such work. According to the Copyright Act, 1957, an infringement of a literary work may take place when someone tries to exercise any of the above rights without prior permission of the author of the copyright protected literary work.
Dramatic work is protected under the Copyright Act, 1957. It is a protection wherein an exclusive right to publish and make gains out of such work is accorded to such author. ‘Publication’ in case of a dramatic work denotes the performance of the same in front of an audience.
Dramatic work includes any written piece for recitation, choreographic work, entertainment in dumb show, or a scenic arrangement. Dramatic work does not cover a motion picture i.e. an audio-visual movie under its ambit.
It is a little confusing to decipher the exact definition of a dramatic work. The courts in the country have repeatedly attempted to expound the meaning of dramatic work. The Supreme Court stated that dramatic work “forms the text upon which the performance of the plays rests”. Thus, it can be gathered that any performance like a recital, live show, mime, theatre act, etc, which is written or scripted, can be granted a copyright protection.
There lies a distinction between a literary work and a dramatic work by the virtue of the fact that a dramatic work is written with an intent to perform..
The owner of a copyright in case of a dramatic work is the author who has prepared the script that is written for the purpose of performance. The Act states that copyright in any dramatic work(s) shall subsist during the lifetime of the author and sixty years from the year subsequent to the author’s death. In case the work is published anonymously, pseudonymously or posthumously then the copyright shall subsist for a period of sixty years from the year subsequent to the year when the work was first published.
The owner of a copyright is entitled to the following rights-
- Right to convert the work to a non-dramatic work which can mean a musical or a literary work.
- Right to reproduce the work in front of a different audience or at another place, or to make changes to the original script of the dramatic work.
- Right to permit inclusion of the work in a motion picture or any other kind of adaptation.
- Right to produce a translation of the work.
After submitting an application to the Copyright Board, any person can obtain a license over the right to produce or publish a translation of a dramatic work, but only after 7 years have passed since the first publication of such work.
According to the Copyright Act, 1957, an infringement of a dramatic work may take place when someone tries to exercise any of the above rights without prior permission of the author of the copyright protected dramatic work.
The most commercialised form of copyright protection is musical works. The fact being that musical works are usually made for commercial gain, copyright protection in the same is of heightened importance.
The Indian Copyright Act, 1957 defines musical work as 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. To understand this thoroughly, let’s delve deeper.
The first part of the definition states that musical work consists of music and includes any graphical notation of the same. This means that a person can copyright a tune which emits from an instrument and if the same can be depicted with the help of notes or figures (♪, ♫), then it can be Copyrighted as well. The second part of the definition states that any action intended to be sung, spoken or performed with the music cannot be copyrighted, this means that any hand gesture or any words which a composer uses in his musical work cannot be the subject to protection under copyright law.
Where the musical work is published anonymously, pseudonymously or posthumously, then the copyright in the said work shall subsist for a period of 60 years from the year subsequent to the year when the work is published.
The rights that a composer, i.e. the owner of copyright, get entitled to are-
- Right to reproduce modified or different versions of a musical work,
- Right to distribute or broadcast the work among public,
- Right to make sound recording or cinematograph film of such work,
- Right to make translation or adaptation of work.
According to the Copyright Act, 1957, an infringement of a musical work may take place when someone tries to exercise any of the above rights without prior permission of the author of the copyright protected musical work.
An artistic work is granted protection under the Indian copyright law. It holds a broad definition under the Act, encompassing a variety of artforms that can be granted a copyright protection. Artistic work includes any hand-made or machine made:
- painting or portrait, where the painter is the copyright owner
- 2D or 3D sculpture, where the sculptor is the copyright owner
- drawing, including a diagram, map, chart or plan, where the illustrator is the copyright owner
- engraving, whether or not artistic, where the carver is the copyright owner
- photograph, whether or not artistic, where the photographer is the copyright owner
- work of architecture, where the architect is the copyright owner
- any other work of artistic craftsmanship, which may include cutlery, pottery, needlework etc, where the craftsman is the copyright owner of such work.
However, there is no set standard through which the artistic quality of a thing can be measured while applying for a copyright protection of artistic work. Nonetheless, the artist still has to describe as to how the work possesses artistic quality.
The protection under copyright law is granted for a lifetime of the artist and a period of 60 years from the date of such artist’s death. In case of photograph, the period is counted from the date when the picture is first published. When the artistic work is published anonymously, pseudonymously or posthumously, then the copyright in the said work shall subsist for a period of sixty years from the year subsequent to the year when the work is published.
The rights accorded to a copyright owner of an artistic work are-
- Right to reproduce the work in any form,
- Right to display or distribute the work among public,
- Right to make or permit an adaptation of the work,
- Right to permit the inclusion of work in a cinematograph film.
According to the Copyright Act, 1957, an infringement of an artistic work may take place when someone tries to exercise any of the above rights without prior permission of the author of the copyright protected artistic work.
The Indian Copyright Act, 1957 defines a sound recording as 'a recording of sounds, regardless of the medium on which it is recorded or the method by which the sounds are produced’. In simpler terms, a sound recording denotes a jingle that has been saved on a device where the source through which such jingle has been produced and the instruments that are used to produce the sound, is irrelevant.
Therefore, a producer who records a song becomes eligible to own a copyright over sound recording. Jingles played in advertisements, mobile phone ringtones, notification sounds etc., are some common examples of sounds that can be protected under the law.
However, an obvious sound of a horn or doorbell cannot be protected under the copyright law.
It is easy to get confused between ‘musical works’ and ‘sound recordings’ but the law assigns different meanings to both the terms. The major difference between the two is that a ‘musical work’ denotes graphical notation of a music composition whereas a ‘sound recording’ is merely a jingle produced by some instrument(s).
A copyright protection over sound recording is granted for a mighty period of 60 years from the date of production of such sound.
According to the Copyright Act, 1957, a copyright is said to be infringed when anyone:
- Does anything, without permission, which only the Copyright owner has the exclusive right to do.
- Communicates Copyright material to the public without permission from the Copyright owner.
- Sells, offers for sale, lets for hire any infringing Copyright material.
- Exhibits in public, the infringing Copyright material.
- Imports infringing Copyright material.
However, a Copyright in a sound recording cannot be said to be infringed when:
- The sound recording is used for private or personal use which includes research, or
- The said sound recording is used for criticism or review.
Copyright Policy regarding Piracy!
Piracy, in its traditional sense means the act of taking over a vessel at sea in order to rob its occupants. However, with change in technology and trade, Piracy has adorned a new meaning, befitting its current character.
What pops in mind at the mention of Piracy now, is the act of making unlawful gains by infringing the exclusive rights held by another in his creative works. Creative works here mean and include literary, dramatic, musical, artistic works and the production work of cinematograph films and sound recordings.
So when does piracy actually occur? The act of piracy has two indispensable requirements. First is that there should be some unlawful copying of the work of another. Second is that such act of copying is for the purposes of making an unlawful gain. So when one makes copies of a book without the permission of the author or of the publisher and proceeds to sell them to the public or someone in particular, he is said to have committed Piracy.
Copyright Piracy has grown exponentially in the past 15 – 20 years, with the advent of the Internet. Online Piracy has become a nightmare for people who can get their work a Copyright protection. These works include films, sound recordings, music, live performances, computer software etc. To circumvent this menace, many statutes have been put into effect by different countries all over the world. One of the most efficacious statutes in this matter is the US government’s Digital Millennium Copyrights Act, 1998 which has been exceptional in bringing to an end certain websites and entities which were notorious for online piracy.
Copyright Piracy is not limited to online piracy only. Literary works have been pirated since many years in form of wholesale reprinting/ photocopying and unauthorized translations. To counter this menace, holograms on literary works, have been introduced to apprise the purchaser that he is purchasing an original copy of the author/ publisher.
In conclusion, we can agree that Piracy is a menace which discourages the original producers of work and will continue to subsist as long as Copyright protection lasts.
Important things to know about Copyright!
The Indian Copyright Act, 1957 grants copyright to musical works, dramatic works, sound recordings, cinematographic films, literary works and artistic works. Copyright law is vast and easily the most remarkable subject under law. A few interesting facts about copyright law are:
- Copyright law or any intellectual property can be used as collateral for obtaining loan since it has a market value.
- A copyrightable work can be an expression of an idea. A person can have n number of ideas and all or any of them can be subject to protection under copyright law.
- Copyright will not be given if there are only one or two ways of expressing an idea. This is called 'merger doctrine'. For example: A mathematical formula that can be written in only one way cannot be protected under copyright law.
- Under Section 57 of the Copyright Act, 1957, authors have right of authorship and can prevent any modification of their work.
- The term of a copyright extends to 60 years after the death of author. When there are two or more authors, 60 years will be counted from the death of last author.
- When a copyright holder is not able to fully exploit their copyright, they may grant/transfer rights to others to do it for a 'fee' by the way of licensing. Transferring limited rights is called transfer and transferring complete rights is called assignment. Copyright can also be assigned for a work which is yet to be completed.
- Licence could be granted with respect to nature of work, duration, rights, territorial extent, conditions etc.
- Registration of copyright is optional but it is recommended to avoid third party claims.
Copyright law in India is governed by the Copyright Act, 1957.
As per the legal definition of Copyright, it is defined as “a bundle of rights by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings.”
These rights include rights of reproduction, communication to the public, adaptation and translation of the work etc. These rights are also complemented with remedies in case of infringement. Therefore, one should tread carefully and be wary of the fine line between Imitation and Inspiration.
It is not wrong to get inspired by looking at the works of another. In fact, it is intrinsic to the human kind to take inspiration from the works of others and get ideas furthering our creativity. Inspiration paves way to new ideas being developed, new thought processes and new creations. However, one should not incline himself so much towards the work of another that the rest of the world is not able to distinguish between the two.
Imitation of Copyright work invites penalties which are not only financial in nature, but can also warrant imprisonment. A real life illustration of this can be the dispute between the singers Vanilla Ice for his song “Ice Ice Baby” and Freddie Mercury & David Bowie's “Under Pressure”. The easily recognisable tune in the song is credited to Freddie Mercury and David Bowie. Although the dispute between the singers was settled out of court, this dispute is a perfect illustration of the line between inspiration and imitation.
However, one should not be discouraged of getting inspired from the works of others. You should be vigilant and astute in your conduct to not toe the imaginary line differentiating your work from another’s.
Even though Copyright is defined in the Act, it is sometimes elaborated by the judiciary to suit this century’s advancements.
‘Only a crying child gets the milk’. In the case of Vicco Laboratories v. Art Commercial Advertising Pvt. Ltd, Vicco had objected to the infringement of the copyright but did not take action. The court held that they cannot claim any right to the work subsequently.
Now, even if you have taken action, the courts have charted out four guiding principles to determine a copyright infringement in Brooke Bond India Limited v. Balaji Tea (India) Pvt. Ltd. Firstly, there must be a clear intention to copy. Secondly, the material that is copyrighted has to be considered and an analysis of both carried out. Thirdly, the volume of the material copied must also be analysed. Fourthly, the extent to which both the works are competing must be determined.
In R.G Anand v. M/S. Delux Films & Ors, the court held that the test is that of the perception of a reasonable man and whether there was a substantial copying of the two works according to such a man.
Even arrangements are subjected to copyright. In Eastern Book company v. Navin J.Desai, the question was on the ownership of copyright of the court judgments that were published or reproduced. The court upheld that a minor editing or grammar check cannot give anyone a copyright over the judgments. If the publisher has added any short notes, commentary etc., then the arrangement is subject to copyright.
Recently, in the case of Publishers v. Pupils, the Delhi University had got into trouble for copyright infringement when the teachers had given the Xerox copies of many copyrighted books as part of the course packs. But, our court exempted such photocopies from the copyright violation as it was in fair use of education.
Protection of Copyright!
A website contains several works such as literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films and broadcastings and computer software too.
It is common that design of one website might be copied by another leading to infringement of the rights of the creator.
A website design is protected under the Copyright Act, 1957. The literary work includes computer programmes, tables and compilations including computer. A copyright can be obtained by the owner to protect the website design.
The procedure for Copyright registration is as follows:
a) Application for registration is to be made including the statement of particulars to the Copyright office which is headed by the registrar of Copyright located in New Delhi.
b) A copyright for a website will not mean a copyright for the website design- separate applications need to be made for each work.
c) Each application should be accompanied by the requisite fee prescribed.
d) The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.
e) The fee is either in the form of Demand Draft, Indian Postal Order favoring "Registrar Of Copyright Payable At New Delhi" or through E payment
Literary, dramatic, musical or artistic works enjoy copyright protection for the life-time of the author plus 60 years beyond i.e. 60 years after his death.
A Source code, or a software can also be copyrighted separately. A source code is the text coding that is the basis of a website.