The word copyright is made up of two words – ‘copy’ and ‘right’ meaning ‘right to copy’. Only the creator or his authorised person has a right to reproduce a work. In simple words, a legal right which is possessed by the owner of Intellectual property is a copyright. With the help of a significant mental or intellectual ability, when a person creates a unique product that product is viewed to be original. The unique creations including websites, computer software, musical lyrics, art, literature, poetry, graphic designs, musical compositions, novels, original architectural design, films, etc. When any work is exclusively created by the independent intellect of a creator without any duplication is called Original Work of Authorship (OWA). Anyone who is the original creator of any work he automatically has a right over it and also can prevent anyone else to use it or copy it or replicate it for his own use.
A copyright is a safeguard which protects an original work from getting duplicated.
Evolution of Copyright
The history of copyright protection began to emerge with the invention of the printing machine which made it possible to duplicate literary works by a mechanical process. The printing press was invented by Johannes Gutenberg in Germany around 1440.
In 1483, Gutenberg’s invention reached England, and the then Monarch King Richard III lifted the ban on import of manuscripts and books. As a result, authors started sending their books in England for printing. They enjoyed a royal license and dueto proliferation of books, England soon became the Centre of printing across the length and breadth of Europe.
In 1529, King Henry VII constituted a system of privilege, thus making printing business a monopoly of the crown. It was during this time that all the people who were earlier involved in writing manuscripts and making copies came together to form the Stationer’s Guild.
In 1516, the stationer’s guild constituted into a company. The members of the company had exclusive right to reprint works in perpetuity in the name of other members of the company who had sole right to publish the work. The registered members had the right to both print and publish the books.
In 1533, King Henry banned the imports of books and stationery under the pretense of growth and development of England’s publishers and printers.
In 1557, the Stationer’s Company received a royal charter and was granted the privilege of regulating the book trade. The company was necessary for Protect trade quality, Minimize unprofessional practices and Limit Competition.
The licensing act of 1662 empowered the company to take action against the infringement of their right. A register of licensed books was maintained, and certain designated members had the right to conduct search and seizure of unlicensed books. This was the first act to check piracy.
The Licensing Act could however didn’t survive the test of time. As system weakened overtime, the ban on unlicensed printing was removed; as a result, independent printers entered the market. The Licensing Act could not distinguish between mechanical and intellectual piracy. It was eventually repealed in 1681.
The Copyright 1911 act consolidated all the acts into one and implemented the Berne Convention. It had major features for Extension of term of copyright to life and 50 years, No need for prior registry in ‘Register of Stationers’ to receive protection under the act, unpublished work is also entitled to protection, Summary remedies in suits of infringement and the act to include all form of arts such as literature, painting, music, photography etc.
Pre-Independence Copyright law in India
The Copyright Law of India was enacted by the British colony and like most of the acts of that time; it was an imitation of the English law.
The first copyright act of India was enacted in 1847, during the regime of East India Company. As per the act, the term of copyright was either, for the lifetime of author plus 7 years or 42 years. The government had the power to grant the publishing license after the death of the author if the owner of the copyright refused permission. All suits and infringement related to copyright came under the jurisdiction of the highest local civil court. The act was replaced by the copyright act of 1914.
The act of 1914 was the first ‘modern’ copyright law of India. It was the first law to include all works of art and literature under the ambit of copyright. It was a replica of the English law of 1911. It was done by the British to ease the passage of literature over colonial subcontinent.
Post-Independence Copyright law in India
The Copyright Act of 1957 came into force on the 21st of January, 1958 replacing the 1911 act. The act besides amending the copyright law also introduced milestone changes such as provisions for setting up copyright office under the control of Registrar of copyright for registration of books and other works of art. It also established a copyright board to deal with the disputes relating to copyright.
Copyright Law and Important Provisions
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending upon the nature of work.
Work in which copyright subsists (Chapter III, Section 13 of Copyright Act)
Literary works (including computer programmes, tables and compilations including computer literary data bases) Dramatic works, Musical works, Artistic works, Cinematograph films, Sound recordings.
Foreign Works includes copyright of foreign works is also protected in India. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order, as if such works are Indian works.
Assignment of Copyright
As mandated by Section 19, no assignment of copyright shall be valid unless such assignment is in writing and signed by the assignee and the assignee.
Such assignment ought to identify:
- the work and the rights assigned,
- the territorial extent and,
- the duration of the assignment Where, the territorial extent and the duration of the assignment has not been specified, it shall be deemed that the assignment extends to the territory of India and the duration of assignment is for a period of five years respectively.
Under Section 18 of the Copyright Act, even the copyright in a future work can be assigned in accordance with Section 19, however, such assignment shall come into effect only upon date of creation of the work. It has now been added by the Amendment that no assignment shall be applied to any medium or mode of exploitation of the work, which did not exist or was not in commercial use at the time when the assignment was made, unless the assignment specifically referred to such medium or mode of exploitation of the work.
Section 57 of the Copyright Act grants an author “special rights,” which exist independently of the author’s copyright, and subsists even after the assignment (whole or partial) of the said copyright. The author has the right to (a) claim authorship of the work; and (b) restrain or claim damages with respect to any distortion, mutilation, modification, or other act in relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial to his honor or repute. These special rights can be exercised by the legal representatives of the author. Before the Amendment the right to claim authorship could not be exercised by legal representatives of the author. Now, post death of the author, if he is not given credit for his work, then even legal representatives, may be able to take necessary action to remedy such breach. As per the Amendment, the right against distortion is available even after the expiry of the term of copyright. Earlier, it was available only against distortion, mutilation etc. done during the term of copyright of the work.
Rights Related to Copyright
A field of rights related to copyright has rapidly developed over the last 50 years. These related rights have developed around copyrighted works and provide similar, though more limited protection. Such rights are:
When any performer (e.g., an actor or a musician) appears or engages in any performance, he has this special right in relation to his performance. The Amendment has modified the definition of “Performer” by clarifying that that in a cinematograph film a person whose performance is casual or incidental in nature and is not acknowledged in the credits of the film shall not be treated as a performer except for the purpose of attributing moral rights. The term of this right is 50 years from the beginning of the calendar year following the year of performance. The “Performer’s Right” is stated to be the exclusive right subject to the provisions of the Act, to do or authorize for doing any of the following acts in respect of the performance or any substantial part thereof, namely: i. to make a sound recording or a visual recording of the performance, including— a. reproduction of it in any material form including the storing of it in any medium by electronic or any other means; b. issuance of copies of it to the public not being copies already in circulation; c. communication of it to the public; d. selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording; ii. to broadcast or communicate the performance to the public except where the performance is already broadcast. Once a performer has by written agreement consented to the incorporation of his performance in a cinematograph film he shall not in the absence of any contract to the contrary object to the enjoyment by the producer of the film of the performers rights in the same film. However, the performer shall be entitled for royalties in case of making of the performances for commercial use.
Broadcast Reproduction Right
Every broadcasting organization has this right with respect to its broadcasts. The term of this right is 25 years from the beginning of the calendar year following the year in which the broadcast is made.
Infringement of a Copyright
A copyright is infringed if a person without an appropriate license does anything that the owner of the copyright has an exclusive right to do. However, there are certain exceptions to the above rule (e.g., fair dealing). The Copyright Act provides for both civil and criminal remedies for copyright infringement. When an infringement is proved, the copyright owner is entitled to remedies by way of injunction, damages, and order for seizure and destruction of infringing articles.
Importation of Infringing Copies
The Amendment has introduced a revised Section 53, which provides a detailed procedure where the owner of the copyright can make an application to the Commissioner of Customs (or any other authorised officer) for seizing of infringing copies of works that are imported into India.
Copyright Protection of Software
By the 1994 amendment of the Copyright Act, an inclusive definition of the term “Literary Work” was inserted to read as: “Literary Work includes computer programmes , tables and compilations including computer databases”. The terms tables, compilations, and computer database have not been defined in the Copyright Act.
The owner of a computer programme has the exclusive right to do or authorize third parties to do the following acts: reproduction of the computer programme, issuing copies to public, perform / communicate it to public, to make translation or adaptation of the work, to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme. However, the commercial rental provision does not apply if the computer programme itself is not an essential part of the rental. Any violation of these exclusive rights amounts to an infringement.
Infringement – Defenses
Section 52 of the Copyright Act enlists the acts that do not constitute copyright infringement. If the lawful possessor of the computer programme makes copies or adaptation of the computer programme in the following circumstances, they do not constitute infringement: (1) for utilizing the computer programme for the purpose for which it was supplied; or (2) to make backup copies purely as a temporary protection against loss, destruction or damage. Further, to obtain information essential for operating inter-operability of an independently created the computer programme with other the computer programme, the lawful possessor can do any act, provided such information is not readily available. Observation, study or test of functioning of the computer programme to determine the ideas and principles that underline any elements of the computer programme (while performing such acts necessary for the function for which the computer programme is supplied), does not amount to infringement. Making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use is also allowed. The fair dealing defense is not available in the case of a computer programme.
Registration of Computer Programme
For registration of computer programme, a practice has developed wherein the first 25 and last 25 pages of the source code are deposited with the Registrar of Copyright. There is no specific provision for the deposit of the source code on any specified media. In any event, such deposit is not advisable. Since the only advantage of registration is that it acts as prima facie proof, other means could be adopted to prove date of creation, ownership of copyright, and other details with respect to the same (e.g., deposit of the computer programme in a safe deposit locker, posting of the computer programme to a lawyer or one’s own address). Further, maintenance of logbooks recording the details of the development of computer programme could also act as proof of date of creation and ownership.
Knowingly making use on a computer of an infringing copy of COMPUTER PROGRAMME is a punishable offence.
The penalty for such an offence is imprisonment (minimum of seven days and maximum of three years) and a fine (minimum INR43 50,000 and maximum INR 2,00,000). If the offender proves that such use was not for gain in the course of trade or business, the court may waive imprisonment and grant a fine up to INR 50,000.
- The primary function of a copyright society (also generally referred to as ‘collecting society’) is to administer the rights on behalf of its members and grant licenses for the commercial exploitation of these rights. Such a society collect the license fee or the royalty on behalf of its members, which is then conveyed to the members after making deductions for the expenses borne for collection and distribution.
At present, in accordance with section 33 of the Copyright Act, the following are registered as copyright societies:
- Indian Performing Rights Society or IPRS, which administers the rights relating to musical and lyrical works on behalf of its members which primarily include authors, composers and the publishers of musical and lyrical works.
- Phonographic Performance Limited or PPL administers the commercial exploitation of phonograms or sound recordings on behalf of its members.
- Society for Copyright Regulation of Indian
Compulsory Licenses and Statutory Licenses
A compulsory license (CL) is an involuntary license issued for a copyrighted piece of work that the copyright owner has to grant for the use of their rights in the work against payment as established under law in case the Copyright Board concludes that the copyrighted piece of work is withheld from the public. Under the Act, the CL provisions under Section 31 (in relation to published work) and 31A (in relation to unpublished or anonymous work) were earlier restricted only to Indian works. The Amendment seeks to remove this limitation. The provisions have now been made applicable to all works. A new provision has been inserted where the work may be made available under CL for the benefit of people suffering from disabilities. The Amendment has introduced the concept of “statutory license” in relation to published works. Any broadcasting organization, that proposes to communicate the a published work to the public by way of broadcast (including television and radio) or a performance of any published musical/ lyrical work and sound recording, may do so by giving prior notice of its intention to the owners of the rights. Such prior notice has to state the duration and territorial coverage of the broadcast and pay royalties for each work at the rate and manner fixed by the Copyright Board.
Statutory License for Cover Versions
The Act pursuant to the Amendment provides for the grant of statutory licenses for making “cover versions”. Cover version may be made only of such literary, dramatic or musical work, in relation to which a sound recording has already been made by or with the license or consent of the owner of the right in the work. Cover version can be made only after the expiration of five calendar years, after the end of the year in which the first sound recordings of the original work was made. Cover version shall not contain any alteration in the literary or musical work, which has not been made previously by or with the consent of the owner of rights, or which is not technically necessary for the purpose of making the sound recordings. Cover version shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated. Cover version should state on the cover that it is a cover version made under Section 31C of Act.
Process to obtain copyright
The person applying for copyright has to follow the following steps:
- The person has to file the application along with the fee either in the form of DD/ IPO
- Then the diary number will be issued.
- The person has to compulsorily wait for 30 days for objections.
- If in case no objection is filed then:
- Application will be accepted.
- It will go to the examiner for scrutinization
- If in case there is no discrepancy found, the application will be sent for approval.
- If discrepancies are found then the discrepancy letter will be issued to the applicant. The applicant will have a right to reply which will be heard by the registrar. In case the registrar is satisfied by the reply he may approve the application and send extracts from the register to the applicant.
- However, if not satisfied then he may reject the application and send the rejection letter to the applicant.
- If in case objection is filed:
- The letter will be sent to both parties i.e. party filing objections and the party against whom the objection is filed.
- Reply will be awaited from both the parties.
- Reply by both the parties will be heard by the registrars.
- If in case objections are rejected the application will be accepted and if objection will be accepted then the application will be rejected.
This procedure applies in the case of both the published or unpublished work.