Copyright and its Subject Matter

By | December 20, 2019
Copyright and its Subject Matter

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This paper aims at first understanding the world of copyright. Furthermore, the paper shall focus on the subject matter of copyright with regard to provisions within the cyberspace. Thus, it aims to club intellectual property law with cyber law.

I. Copyright

Copyright essentially refers to a type of Intellectual Property Rights protection which helps to protect the intellect of human creation. Copyright law in India provides exclusive and monopoly rights to the creator or author or owner of original literary, dramatic, artistic, musical works and cinematograph films.

Computer software for the purpose of this Act is considered as a piece of literary work and is thus, protectable under copyright law in India.

Basics of Copyright

The different classes of work that are protected under copyright in India include literary work, artistic work, musical work, sound recording and cinematograph film. Copyright fundamentally comes into existence as soon as a work is created and there is no formality required to be completed to acquire copyrights.

However, registration of copyright is incredibly important as certificates of registration of copyright serve as prima facie evidence in a court of law and thus, would help in establishing authorship and infringement in required cases. If the author decides to not register, the work should be properly dated and signed.

The symbol © is used along with the name of the author and the year of first publication of the work so as to signify that the work is copyrighted.

Copyright owners essentially have economic and moral rights. Economic rights include the right to make use, sell and distribute their work to earn an economic reward. Further, the owner can assign his work to be sold in return of payment or royalty. The owner also has the option to license and lease the work to companies in exchange for payment.

Moral rights that the owner has includes the right to claim authorship of the work and to restrain or claim damages in respect of any acts in relation to the work if it is deemed to be prejudicial to the owner’s honour or reputation.

Legislation Governing Copyright

In our pre-independence era, the copyright law in India was governed by the Copyright Act 1914 that was framed during the British rule. The Copyright Act 1957 was then enacted post-independence and witnessed five amendments, in the years 1983, 1984, 1992, 1999 and 1994 so that our law could come at par with terms of different international treaties such as the Berne Convention, the Universal Copyright Convention, the Rome Convention and the TRIPS Agreement.

One of the major amendments to the Copyright Act 1957 was by way of the Amendment of 1994 that safeguards protection to original literary, dramatic, musical and artistic works, cinematographic films and sound recordings. Other newer forms of technical areas such as computer software, satellite broadcasting and digital technology were also brought under Indian copyright protection.

Protection of Copyright

For literary work including computer software, musical and artistic works, dramatic works and photographs, the term of protection is life plus 60 years. The 60 year period is counted from the year following the death of the author.

In cases of cinematographic films, sound recordings, posthumous publications, works of the government, work in public undertakings and works of international organizations, the term of protection is 60 years counted from the date of publication.

For anonymous and pseudo-anonymous publications, the copyright subsists until 60 years from the beginning of the calendar year after the year in which the work is first published, provided that the identity of the author is disclosed before the expiry of the period.

II. COPYRIGHT AND CYBER LAW

The emergence of electronic data interchange was nothing but the true and real beginning of e-commerce in the world. Thus, it can be said that e-commerce was fully in force by the 1990s. EDI was very expensive and thus, both small and medium-sized companies couldn’t afford the same.

However, the advent of the internet completely changed the scenario and provided an even playing field for all the companies involved. The EDI propriety system thus gave way to internet-based e-marketplaces.

As the e-market grew, it became increasingly clear that security issues were on the rise for consumers. Therefore, to secure e-commerce within the nation, the digital signature was adopted.

III. Licenses and Copyright

With the registration of work for copyright, the owner earns economic and moral rights. One of the economic rights that is granted to the owner is the right to license the work to be leased to companies in exchange for payment. The copyright law of India includes both exclusive and non-exclusive licenses.

Exclusive licenses provide a specific right granted to a single owner. The licensee, which can be an individual or a company, solely has the right to use, copy or distribute such work in a specific way as per the license.

For example, if the exclusive right to publish a book in English is specifically given to publisher ‘A’ in India for a period of 15 years, the publisher ‘A’ doesn’t have the exclusive right to publish such book in any other language and in any other country for the said period of 15 years.

A non-exclusive license on the other hand is one where the licensor can give specific rights to use, copy or distribute to more than one licensee, which can be an individual or company. For example, the non-exclusive right to sell a software CD may be specifically given to two publishers ‘X’ and ‘Y’ in India for a period of 15 years.

When a customer purchases a pre-installed software from a PC provider who is an authorized distributor, the operating system package license is called the original equipment manufacturer license. This OEM license is specific to a particular machine on which it gets installed by the PC provider. Thus, this licensed version of the software cannot be installed on any other machine by a third person.

Rights in Terms of Computer Software

The various parts of computer software that are protected by copyright include the graphical user interface, the source code and object code, the operating system that allows the application of software to interact with the hardware and the application software.

The owner of the computer programme has all the rights associated with it. Computer programmes in India can be protected under literary work within the Indian Copyright Act. Additionally, other related rights are exceptionally provided to an owner of the computer programme which also includes the right to sell and rent copies.

The right to rent copies is only allowed for computer programmes and code which as configured as a substantial part of the object.

There are a plethora of rights available in terms of copyright within the cyberspace. For example, if Jolene developed computer software called COMP-OG (where you can compress large size files to small size files so that files can be easily emailed and later on, the small size files are joined together to generate the original size file), Jolene here is the author and owner of the software and will have the following rights:

  • Jolene can reproduce the software in any material form and store it in any electronic format. She can store the software in CD-ROM, DVDs or even a USB drive. Additionally, she can also upload the software on her website.
  • Jolene can issue copies of COMP-OG to the public by way of CDs et cetera.
  • Jolene can make a user guide on how to use the COMP-OG software.
  • Jolene can make any cinematographic film or sound recording in respect of the work so as to have a presentation or audio recording on how to use the software.
  • Jolene can also make any translation of the work in different languages. She can also change the supported menus and user guides, audio language and presentation. The translation is merely the conversion of source code into object code.
  • Jolene can additionally make any adaptation of the work by writing the COMP-OG software in different computer languages like C++ or VC++ et cetera to integrate the software.
  • Jolene also has exclusive rights to sell, commercially rent or offer for sale the COMP-OG software by uploading it on a website, selling it online and receiving the payment online. Jolene can also make deals with software seller and gain profits from the same.

III. PROTECTION OF DIFFERENT CLASSES

As previously established, there are various parts of computer software that are protected by copyright in the cyberspace.

1. GUI and Database

The graphical user interface allows a user to interact with applications of computers, mobiles, electronic equipment et cetera. Thus, the GUI is an element of the program through which users interact with other features of the computer programme. Copyright protects forms of expression and can be used to protect source code and object code of a computer programme.

Further, computer programmes are protected as a literary work under the Copyright Act and thus, GUI stands protected. Database refers to a collection of records stored in a systematic way that can be best utilized. The database is also protected as literary work under the Indian Copyright Act.

2. Multimedia

Multimedia essentially refers to a computer-based interactive communications process that includes a combination of writing, sound, image, still images, animation, video, computer software or interactivity content forms. Multimedia elements on websites and on the internet are found embedded in web pages.

Examples of multimedia applications include World Wide Web, adobe director, interactive TV, computer games et cetera. As multimedia combines different elements, copyright protection is different for different classes of work.

  • Text in multimedia

Literary works including books, magazines, and novels et cetera where each original work will be protected in the literary section in a separate copyright application.

For example, if the multimedia application contains text as well as poetry which are original, both the text and the poetry will be protected in separate copyright applications. Developers or creators need to seek prior permission from the owner to use the pre-existing text.

  • Computer Software

Computer programs include source code and object code and are defined as a set of ordered instructions which enable a computer to carry out a task. A program that is written to integrate various elements of a multimedia product as a computer program will be protected as a literary work.

Developers need to seek prior permission like in the case of other literary works. This prior permission clause remains the same for all classes of work represented below irrespective of their other differences.

  • Interactivity Content Forms

There is no real definition for ICF but it essentially is explained as a process of compiling various sources such as a set of data, a report or a collection of literary or musical works and cinematographic work that is compiled from various sources. The compilation is essentially the process of converting source code to executable code and thus, is protected as a literary work.

  • Still images

Still images are considered to be artistic work whether or not such work possesses an artistic quality, a work of architecture or any other artistic craftsmanship. Each work will be protected in the artistic section in a separate copyright application form.

  • Audio

Audio in multimedia is considered to fall within the ambit of musical work or sound recordings. Musical work includes a work consisting of music and includes any graphical notation of such work but doesn’t include any words or any action intended to be sung, spoken or performed with the music.

Sound recordings are recordings from which sounds are produced regardless of the medium on which this recording is made. Each original musical work will be protected in the musical section in a separate copyright application form and each sound recording will be protected in the sound recordings section in a separate copyright application form.

  • Animation and Video

Both animation and video in multimedia applications fall within the category of cinematographic films. This includes 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. Thus, it includes visual representation in the forms of movies, video games et cetera. Each separate piece of work is protected in a separate copyright application form.

IV. CONCLUSION

With the advent of digital technology, multimedia and the internet, copyright infringement and software piracy has become rather easy. Due to weak network security and issues surrounding hacking, problems today are grimmer and pose a serious threat to the functioning of e-commerce.

The Indian Government, by way of the IT Amendment Act of 2008, took a remarkable step in the right direction, however, it doesn’t address the issues revolving copyright. Copyright thus remains as one of the most complicated areas of cyber law and is essential for the growth of e-commerce in the nation.

Around the world, e-commerce and copyright-related cases are being instituted at a fast pace, especially in countries such as the USA. However, Indian courts thus far are yet to witness that major influx of internet-related cases.

For when it does arrive, our legal institutions need to be prepared for the production of an information gateway. India is thus, still miles behind western countries in terms of harnessing its e-commerce, but it sure is paving a way for a better future by addressing and tackling the issues one at a time.


References

  • The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.
  • Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
  • Shlisha Devadiga and Shweta Choudhary, Copyright Act, 1957, Presentation, CMR School of Legal Studies, 2018
  • Vijay Pal Dalmia, India: Copyright Law in India – Everything you Must Know, Mondaq papers, 2017
  • Atul Satwa Jaybhaye, Cyber Law and IPR issues: The Indian Perspective, Bharati Law Review, 2016
  • Nehaluddin Ahmad, Copyright Protection in Cyberspace: A critical study with reference to electronic copyright management systems, Communications of the IBIMA, Volume 7, 2009
  • Tabrez Ahmad, Copyright Infringement in Cyberspace and Network Security – A Threat to E-Commerce, KIIT Law School
  • Ravindra Sharma, Copyright under Indian Cyber Law, Symbiosis Center for Information Technology, 2009
  • Karnika Seth, Protecting copyright in the cyberspace, 2013
  • Ministry of Electronics and Information Technology, FAQs on IPR and Copyright, Government of India, 2015

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