Meaning Of Copyright

Nature, Meaning and Scope of Copyright Table of Contents Particulars

Page Number

1. Introduction

1

2. Meaning of Copyright

1-2

3. Definition of Copyright

2-3

4. Characteristics of Copyright

3-4

5. Object of Copyright

4

6. Nature and scope of Copyright

4-7

7. Content and duration of Copyright

7-8

8. Works in which Copyright subsists

8-12

9. Author and ownership of Copyright

13-14

10.Assignment and Licensing of Copyright

15-19

11.International character of Copyright

19-22

12.Copyright Laws in US, UK and India- A Comparison 13.Conclusion 14.Bibliography

22-23 23-24 25 1

Introduction The scope of intellectual property is expanding very fast and attempts are being made by persons who create new creative ideas to seek protection under the umbrella of intellectual property rights. Copyright is a kind of intellectual property the importance of which has increased enormously in recent times due to the rapid technological development in the field of printing, music, communication, entertainment and computer industries.1 In India the first Copyright Act was passed in 1914. It was a replica of the English Copyright Act of 1911. The Act, presently in force was legislated in the year 1957 and is known as Copyright Act, 1957, as amended by Copyright (Amendment) Act, 1999. Consequent upon India signing the GATT and entering the global market economy, a number of changes have been made in the Copyright Act of 1957 by the Amending Act of 1999, to give effect to the obligations arising from the signing of the GATT and to make Indian Law more in line with the present law in many developed countries.

Meaning of Copyright The word ‘copyright’ is derived from the expression ‘copier of words’ first used in the context, according to Oxford Dictionary, in 1586. Word ‘copy’ according to Black’s Law Dictionary means ‘transcript, imitation, reproduction of an original writing, painting, instrument or the like” 1

Intellectual Property Law, P Narayanan, Chapter 29, Pg251.

2

Copy right according to Black’s Law Dictionary is the right in literary property as recognized and sanctioned by positive law.

An intangible

incorporeal right granted to the author or originator of certain literary or artistic production whereby he is invested for a specific period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them”. Copyright as defined in the Oxford English Dictionary is an exclusive right given by law for a certain term of years to an author, composer etc., (or his assignee) to print, publish and sell copies of his original work’.

Definition of Copyright The statutory definition of copyright is as follows2 Copyright means the exclusive right to do or authorize others to do certain acts in relation to 1) Literary, dramatic and musical works; 2) Artistic works; 3) Cinematograph film and 4) Sound recordings. The various acts for which copyright extends is listed in section 14 of the Act. Copyright does not extend to any right beyond the scope of section 14. The exclusive right for doing the respective acts extends not only to the whole 2

Section 14 of the Copyright Act,1957

3

of the work but to any substantial part thereof or to any translation or adaptation thereof, where applicable.

Characteristics of Copyright3 a) Creation of a statute Copyright is creation of a specific statute under the present law. There is no such thing as common law copyright. b) Form of intellectual property :

A copyright is a form of intellectual property since the product over which the right is granted is the result of utilization and investment of intellect. c) Monopoly right :

Copyright is a monopoly right restraining the others from exercising that right which has been conferred on the owner of copyright under the provisions of the Act. d) Negative right :

Copyright is a negative right meaning thereby that it is prohibitory in nature. It is a right to prevent others from copying or reproducing the work. e) Multiple rights :

3

Intellectual Property Law, B.L Wadhera, Chapter 30, Pg 282

4

Copyright is not a single right. It consists of a bundle of different rights in the same work. For instance, in case of a literary work copyright comprises the right of reproduction in hard back and paper back editions, the right of dramatic and cinematographic versions etc., f) Neighbouring rights

Copyright consists not merely of the right to reproduction. It also consists of the right to works derived from the original works; rights like the right of public performance, or the broadcasting rights. Such related rights are termed “neighbouring rights”.

Object of Copyright4 The object of copyright law is to encourage, authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a specified period to reproduce the works for publishing and selling them to public. It is thus the exclusive right for a limited period to exploit the work for monetary gain. The economic exploitation is done by licensing such exclusive right to entrepreneurs like publishers, film producers etc., for a monetary consideration. Thus, protecting, recognizing and encouraging the labour, skill and capital of another is the object of a copyright.

4

Ibid, Pg 283

5

Nature and scope of Copyright The law does not permit one to appropriate to himself what has been produced by the labour, skill and capital of another. This is the very foundation of copyright law. The object of the copyright law is to protect the author of the copyright work from an unlawful reproduction or exploitation of his work by others. The exploitation is done by entrepreneurs like publishers, film producers etc., to whom the owner of copyright assigns or licenses the particular rights. If the entrepreneur is to recover the capital invested and earn profits he has to be protected from unauthorized reproduction. Otherwise a pirate would reproduce the work at a fraction of the original cost of production and undersell the producer. In ancient times copying was a laborious and expensive process. The importance of copyright protection was recognized only after the invention of the printing. Press in the 15th century which enabled reproduction of books in larger numbers practicable.5 Copyright is a creation of the statute. No person is entitled to copyright or any similar right in any work except those provided under the copyright act. It is a negative right where the author of the original work is protected from the unauthorized reproduction or exploitation of his work. This right also extends to prevent others, from exercising without authority any other form of right attached to copyright. Example : In the case of literary work the scope of 5

Supra n. Chapter 30, Pg 254.

6

copyright extends to the making of a dramatic or cinematographic version of the literary work. Copyright is a multiple right consisting of a bundle of different rights in the same work. There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed. Thus it is not an infringement of copyright to adopt the ideas of another. Also there is nothing in the notion of copyright to prevent another person from providing an identical result (and himself enjoying a copyright in that work) provided it is arrived at through on independent process. There is no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated. In the field of literary work the words chosen by the author to express his ideas are peculiar to himself and no two descriptions of the same idea or fact can be in the same words, just as no two answers written by two different individuals to the same question can be the same. The order and arrangement of each man’s words is as singular as his countenance. It is the form in which a particular idea, which is translated that is, protected. The above ratio was said down in Jaffroys v. Boorey.6 In order to secure copyright protection what is required is that the author must have bestowed upon the work “sufficient judgement, skill and labour or capital”. It is immaterial whether the work is wise or foolish, accurate or

6

(1854) 4 HLC 815

7

inaccurate, or whether it has or has not any literary merit as laid down in Walter v. Lane.7 The owner of a copyright has no monopoly in the subject matter. Others are at liberty to produce the same result provided they do so independently and their work is ‘original’. The above ratio was laid down in Ravencraft v. Herbert8. There is no copyright in live events. No license is required to transmit programmes of sporting events and news events. This is subject to the special rights conferred on performers. Copyright protection in however not granted where the work is grossly immoral, illegal, defamatory, seditious, irreligious or contrary to public policy or calculated to deceive the public.9

Content and duration of Copyright Copyright is not a single right but a bundle of rights which can be exploited independently. Further the nature of the rights conferred on the owner of the copyright depends upon the nature of the work. But one feature common to all kinds of work is the ‘right to reproduction’ in a material form and the ‘right to publication’. The owner of a copyright may exploit the work himself or license others to exploit any one or more of the rights for a consideration in the form of royalty or a lump sum payment.

7

(1990) AC 539 (1980) RPC 103 9 Supra n. 1, Chapter 30, Pg 256 8

8

In the case of literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the another, copyright subsists during the lifetime of the author plus sixty years. In case of joint authorship the sixty years period will start after the death of the author who dies last. In the case of anonymous or pseudonymous works, posthumous publications, photographs, cinematograph film and sound recording the term is sixty years from the year of publication. Where the first owner of copyright is the Government or a public undertaking or an International Organisation the term of copyright is sixty years from the year of publication.

Works in which Copyright subsists Section 13 of the Copyright Act, 1957 lists out the works, in which copyright subsists or copyrightable works.

Accordingly copyright subsists

throughout India in the following classes of works : a)

Original literary, dramatic, musical and artistic works.

b)

Cinematograph film and

c)

Sound recording. Literary work includes computer programmes, tables, compilations

including computer databases.

Copyright also subsists in the original

adaptation of another literary work, because the adaptation itself can be a literary work Adaptation in relation to literary work means the conversion of the work into a dramatic work. A genuine abridgement of a literary work is an

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original work and can be subject of copyright. An abridgement is entitled to copyright if it is new and original. Similarly a translation of a literary work is itself a literary work and is entitled to copyright protection if it is original. The head notes of law reports containing in clear and concise language, the principles of law deduced from the court decision are original literary works entitled to copyright protection. Copyright subsists in private letters, commercial letters and government letters as they are original literary works. The preparation of a questionnaire, catalogue and dictionaries involves considerable amount of labour, skill and judgement. Copyright subsists in dictionaries because they are compilations which are included in the definition of literary work. The judgement or the order of court, tribunal or other judicial authority is exempted from copyright protection. Historical facts are not copyrightable per se. A lecture will be entitled to copyright only if it is reduced to writing before it is delivered. A lecture delivered extempore, which has not been reduced to writing, can be protected by an action of breach of confidence. As a general rule, titles of books or literary articles are not protected under copyright law. They can be protected under the law of passing off. Copyright subsists in original dramatic work and its adaptation. According to section 2(h) a dramatic work includes any piece of 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. 10

Adaptation in relation to dramatic work means, 1) the conversion of the work into a non-dramatic work, 2) the abridgement of the work in which the story is conveyed by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or periodical. Choreography is the art of arranging or designing of ballet or stage dance in symbolic language. In order to qualify for copyright protection it must be reduced to writing usually in the form of some notation and notes. Copyright subsists in original musical work. According to section 2(p), musical work means a work consisting of music and includes any graphical notation of such work, but does not include any word or any action, intended to be sung or spoken or performed with the music. An original adaptation of a musical work is usually called arrangements. E.g., an orchestral work arranged for piano. The remix songs are within the definition of adaptation of a musical work. There is no copyright in a song as such because a song has its words written by one man and its music by another. These two copyrights are entirely different and cannot be merged. According to section 2( c) Artistic work means i)

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.

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ii)

a work of architecture and

iii)

any other work of architecture craftsmanship. Adaptation of an artistic work means the conversion of the work into a

dramatic work by way of performance in public or otherwise. As in the case of other works, to qualify for copyright protection an artistic work must be original, i.e. it must originate from the author. In respect of painting, sculpture, drawing, engraving or photograph the work need not possess any artistic quality. A work of architecture must however have artistic quality. The artistic quality of the work is to be determined on the merits of each piece of architecture. A work of architecture means any building or structure having an artistic character or design. The building or structure which constitutes a work of architecture is built on the basis of a plan which enjoys a separate copyright apart from the copyright in the building. This is in contrast with engineering drawings where the machines built on the basis of the drawings do not have a separate copyright.

Copyright also subsists in original works of artistic

craftsmanship. The purpose is to protect a person who creates a product by his own handicraft from unauthorized reproduction whether by hand, machine or otherwise.

It has been held that prototype furniture does not qualify for

copyright; some higher level of, artistic interest or attainment is necessary.

12

A cinematograph film is a work capable of acquiring copyright. According to section 2(f), “cinematograph firm” 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 cinematograph including video films. A cinematograph film is a film which by rapid projection through an apparatus called cinematograph projector produces the illusion of motion on a screen of many photographs taken successfully on a long film. For the purpose of copyright, the producer is considered to be the author of cinematograph film. The artists working in a film are not protected by copyright. Their rights are protected as ‘performer’s rights’ under section 38 of the copyright act. Copyright subsists in a sound recording. According to section 2 (xx) a sound recording means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are reproduced. The author of the sound recording is the producer. Musical works and sound recordings embodying the music are considered separate subject-matter for copyright. The copyright in the recording of the music is separate from the copyright in the music. Copyright in the music vests in the composer and the copyright in the music recorded vests in the producer of the sound recording. 13

Author and Ownership of Copyright The concept of ‘author’ and ‘ownership’ are vital when the question of propriety over the copyright arises. The originator of an idea is not the owner of the copyright. According to section 17 the author of the work is the first owner of the copyright in the work. An author may create a work on his own behalf or at the instance of another person for valuable consideration or in the course of employment by another person. In the first case the author is the owner of the copyright in the work. Authors who write books or compose music come under this category. In the second category, the person at whose instance the work is made is the owner of the copyright work. In the case of the third category, the ownership depends upon the nature of employment. The author of a work depends upon the nature of the work. In the case of literary or dramatic work the author of the work is the person who creates the work. The author of a musical work is the composer. In respect of an artistic work the author is the artist. The author of a photograph is the person who takes the photograph. In the case of a cinematograph film the author is the producer of the film at the time of completion. The author of a sound recording is the producer. In the case of any literary, dramatic, musical or artistic work which is computer – generated, the person who creates the work is the author.

14

In the case of literary, dramatic and artistic works where the work is made by an employee in the course of employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship the said proprietor, in the absence of any agreement to the contrary, will be the first owner of the copyright. The copyright in a work done by an employee on his own time and not in the course of his employment belongs to the employee. Where the work is first published in India there is no nationality requirement for subsistence of the copyright. If the work is first published outside India the author must be a citizen of India at the time of publication or if dead at the time of death. In the case of unpublished work the author must be a citizen of India or domiciled in India at the time of making the work. Copyright in an architectural work will subsist only if the work is located in India irrespective of the nationality of the author. Ownership of the copyright in a work is not the same as ownership in the material object in which the copyright work is embodied. Thus a person who buys a painting may be the owner of the canvas in which the painting is drawn but the copyright in the work may vest in the artist who has drawn the painting. Similarly when a person buys a book he is the owner of the book but not the owner of the copyright in the book.

Assignment and License of Copyright 15

It is seldom that the author of a copyright work himself exploits the work for monetary benefit. Ordinarily he either assigns the whole or part of his rights to others to exploit economically for a lump sum consideration. In the alternative he may license some or all of his rights to others usually on the basis of a royalty payment.

An assignment may be general, i.e. without

limitations, or subject to limitations. It may be for the whole term of the copyright or for any part thereof. It may be for a particular territory or country. While assignment is a transfer of ownership in rights to the assignee, a license is a permission to do something in respect of the work. Sections 18, 19 and 19A of the Copyright Act deal with the assignment of copyright. Section 19 elaborates the mode of assignment in the following manner: 1.

Assignment of a copyright is valid only if it is in writing and signed by the assignor or by his duly authorized agent.

Registration is not

necessary for its validity. 2.

The deed of assignment shall identify the work and specify the rights assigned and the duration and territorial extent of such assignment. It should also specify the royalty payable to the author or his legal heirs, if any.

3.

If the assignee does not exercise the rights assigned to him within one year from the date of assignment, the assignment in respect of such

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rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment instrument. 4.

When the period of assignment is not stated, the period shall be deemed to be five years from the date of assignment. If the territorial extent of the rights is not specified, it shall be presumed to extend within India. An assignee, to whom certain rights have been assigned by the assignor

can restrain the author from exercising those rights which have already been assigned to him by moving court of competent jurisdiction for infringement. Section 18 provides that copyright can be assigned even in respect of future works. According to section 21, the author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice to the Registrar of Copyright. Licensing of a Copyright : A license is an authorization to do certain acts which, without such authorization, would be an infringement. The owner of a copyright may grant a license to do any of the acts in respect of which he has an exclusive right to do. Licensing usually involves only some of the rights and not the whole. Also unlike an assignment where the assignee becomes the owner of the right assigned a licensee only gets the right to exercise particular rights subject to the condition of the license and does not become the owner of that right.

17

There is no prescribed form for a license deed. But it should be in writing signed by the owner of the copyright or his duly authorized agent. The license deed shall identify the work and specify the rights licensed and the duration and territorial extent of such license. It must also specify the quantum of royalty payable and the terms regarding revision, extension and termination of the license. The provision of section 19 shall, with any necessary adaptation and modifications, apply in relation to a license under section 30 as they apply in relation to assignment of copyright in a work. A license should be distinguished from a consent. Thus, for example, inserting quotations from a copyright work in another work or printing the photograph for a specified purpose may not require a license but only a consent. There are different kinds of licenses. A license may be exclusive or non-exclusive; it may be granted by the owner (voluntary) or granted by the Copyright Board as a compulsory license. It may be limited to a specific period of time, to a territory within the jurisdiction or to part of the interest where possible or to a particular country. Exclusive license means a license which confers on the licensee to the exclusion of all other persons including the owner of the copyright any right comprised in the copyright in a work. In the case of a non-exclusive license, the owner of the copyright retains, the right to grant licenses to more than one person or to exercise it himself. An exclusive license should be distinguished 18

from a sole license. In the case of a sole license the licensee can exclude all others except the owner of the copyright. Licenses are generally granted by the owner of the copyright on payment of some royalty. When they are granted in the above manner they are called as voluntary licenses.

Licenses may also be non-voluntary or

compulsory. Section 31 of the Copyright Act deals with compulsory license of an Indian work.

Accordingly the copyright Board is empowered to grant

compulsory licenses under certain circumstances. The circumstances necessary for grant of such compulsory licenses are as follows : a)

The work must have been published or performed in public.

b)

The author must have refused to republish or allow republication of the work or must have refused to allow the performance of the work in public.

c)

That by reason of such refusal the work is withheld from public, or

d)

The author must have refused to allow communication to the public of such work by broadcast, or in the case of a sound recording the work recorded in such record, on reasonable terms. Section 31 A deals with compulsory license in respect of unpublished

works.

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International Character of Copyright The enormous technological development of transport and communications has resulted in the globalization of trade and commerce. This has its impact on intellectual property which is becoming international in character. Intellectual property can travel effortlessly from one country to another. Piracy of intellectual property has become international in character. This is particularly important in the case of copyright. Piracy of copyright work has become extremely easy and inexpensive owing to the availability of gadgets like tape recorder, video, magnetic tape, machines and so on. The importance of intellectual property in India is well established at all levels-statutory, administrative and judicial.

India ratified the agreement

establishing the W.T.O. This agreement, inter-alia, contains an agreement on TRIPS which came into force from 1 January 1995. It lays down minimum standards for protection and enforcement of intellectual property rights in member countries which are required to promote effective and adequate protection of Intellectual property rights with a view to reducing distortions and impediments to international trade.10 Part II of the TRIPS Agreement deals with the standards concerning the availability, scope and use of intellectual property rights. Section 1 of Part II deals with copyright and related rights. Articles 9 to 14 contain provisions 10

Encyclopaedia of IPR, Dr Priyaranjan Trivedi, Vol VI, Preface.

20

regarding copyright and related rights.

Article 9 says that members shall

comply with Articles 1-21 and the Appendix of the Berne Convention (1971) and copyright shall extend only to expressions and not to ideas. Article 10 recognises computer programs as a literary work which is a subject matter of copyright. Similarly compilations of data is recognized as intellectual property. Article 11 says that a member shall provide authors of computer programs and cinematographic works commercial rental rights with respect to their copyright works. Article 12 says that where term of protection is accorded considering the date of publication, it shall not be less than 50 years from the end of the calendar year of authorized publication. Article 13 says that members shall confine limitations or exceptions to special cases not conflicting with normal exploitation of the work. Article 14 contains provisions regarding protection of performers, producers of phonograms (Sound Recordings) and Broadcasting Organisations. India as a developing country had a transition period of 5 years (From 1 January, 1995 to 1 January 2000) to apply the provisions of the agreement. An additional transition period of 5 years is available for extending product patent protection. India’s copyright law, laid down in the India Copyright Act, 1957 as amended by Copyright (Amendment) Act, 1999, fully reflects the Berne Convention on copyrights to which India is a party. Additionally, India is a party to the Geneva Convention for the protection of rights of producers of phonograms and to the Universal Copyright Convention. India is also an active member of the WIPO, Geneva Convention and UNESCO. 21

The Berne Convention for the protection of literary and Artistic Works (1886) speaks of fair use (limitations and exceptions relating to different types of works under various provisions).

The convention rests on three basic

principles : a)

Works originating in one of the contracting state must be given the same protection in each of the other contracting states as the latter grants to the works of its own nationals.

b)

Such protection must not be conditional upon compliance with any formality (principle of automatic protection).

c)

Such protection is independent of the existence of protection in the country of origin of the work (Principle of ‘Independence’ of Protection). The Universal Copyright Convention, 1952 was adopted in Geneva on

6th September 1952 by the Intergovernmental Copyright conference convened by UNESCO. The purpose of the Universal Convention is to establish a basis for conciliation between countries which have widely differing civilizations, cultures, legal systems and administrative practices and sometimes conflicting interests and to prescribe measures for achieving it”11 The Rome Convention of 1961 contains provisions for the protection of performers, producers of phonograms and broadcasting organizations.

11

Ibid , Vol III, Pg 33

22

Copyright laws in U.K., U.S. and India – A Comparison The subject matter of copyright is more or less similar in India, USA and UK. When it comes to the Idea – Expression dichotomy, UK copyright law follows the Berne convention where protection goes only to the particular expression of ideas. India to a great extent follows the UK concept. In the US the idea-expression dichotomy has been enacted in Section 102 of the statute itself. It states that there is no copyright for an original work that extends to an idea regardless of the form in which it is described. When it comes to the question of originality / creativity, where the work originates from the author and is not a copied work, it gets protected under the UK and the Indian laws. The US laws are more stringent on the originality aspect and expects a spark of creativity to be present apart from originality aspect. Originality and creativity is a constitutional requirement and has been given under section 102.

It

explicitly states that originality / creativity and fixation in tangible form are the two fundamental creations of copyright protection. In U.S.A. an extremely low, even a slight amount of originality will suffice.12 Recently the legal battle between Warner Bros and Mirchi Movies, the makers of Hari Puttar – A comedy of Terrors for infringement of copyright caught the attention of the world media. The Delhi High Court dismissed the suit filed by Warner Bros which contended that the film’s title sought to confuse customers and benefit unfairly from the Harry Potter brand, the rights to which the United States based entertainment behemoth owns for movies and 12

NLSIU, Pg 80-82.

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merchandise. The paradox is that hugely successful series of Barry Trotter books and other books like ‘Hairy Potter and the Marijuana Stone’ and ‘Hairy Potty and the underwear of Justice’ have escaped litigation on similar grounds. The answer to this paradox lies in western intellectual property law where the right to free speech is a defence against copyright and trademark violations in relation to such things as parodies (a comic imitation). Ironically the problem with the Puttar film is that it bears no resemblance at all to the Potter Saga, and therefore audience could confuse it with a Harry Patter film. The Delhi High Court however rightly concluded that the audience in India and else where is more than capable of discerning one from the other.

Conclusion The Principle of copyright protection in India is “What is worth copying is prima facie worth protecting”. In the rapidly changing technological environment, copyright protection is being extended to many areas of creative work particularly in the computer industry. This has found recognition in the 1994 Amendment Act.

Computer software piracy and video piracy is a world

wide phenomenon. To act as a deterrent against such piracy, the provisions relating to protection of computers software have been tightened by substantially enhancing the punishment for infringement of software and increasing the scope of such infringement. Further certain special rights have been introduced for the first time for the benefit of performers like musicians, actors, acrobats, jugglers, snake charmers and so on.

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BIBLIOGRAPHY 1. Narayanan.P, Intellectual Property Law, 25

Eastern Law House, Third Edition,2007.

2. Priyaranjan Trivedi, Encyclopaedia of IPR, Volume III.

3. Basic Principles and Acquisition of Intellectual Property Rights, NLSIU, Bangalore.

4. Wadhera B.L, Law Relating toIntellectual Property, Universal Law Publishing Company, Fourth Edition 2007.

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