Introduction to Copyright

By | February 4, 2020
Introduction to Copyright

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Practically every copyright law provides for the following kinds of works to be protected: literary works including novels, stories, poems, dramatic works, works of music, whether series or light, songs, choruses, operas, maps and technical drawings, photographic work, cinematographic works, sound recordings, computer programming, etc.

Introduction

Man has an intellect that is used for himself and society as a whole. All contemporary dynamic societies have their own ongoing learning processes and creating new knowledge with adequate protection for the designer and the public accessibility of his work. A system of intellectual property rights (IPRS) provides a formal framework for the ‘ownership’ of developed knowledge and the ‘sharing of benefits’ between creators and knowledge users.

The legal framework provides an incentive for creators to spend time and resources, foster innovation and extend awareness by protecting intellectual property (IP). Globally, the fact that IP is knowledge or information of commercial value is being increasingly recognized.

The future prosperity of nations will also be more dependent upon their IP and less upon their natural and material resources, such as plants, machinery and buildings, as knowledge will be the basis of the economic situation of the 21st century. Therefore, the intellectual property began to assume a new central role in the international community that would bring IPRS to the forefront of socio-economic and legal structures.

Intellectual property generally means rights arising from intellectual activity in the technological, science, literary and artistic realms, as specified by the World Intellectual Property Organization (WIPO). It is an incorporeal element that is intangible. The common division of intellectual property into two parts is (i) copyright, and (ii) industrial property.

The copyright law is further divided into two categories: (a) the copyright law in the strict sense of the word: intellectual creativity protection in literary work, art and music; and (b) the neighbouring rights law, namely the rights of artists acting, producers of phonographs and organizations of the broadcasting industry.

India is a World Intellectual Property Organization (WIPO) and World Trade Organization (WTO) member. India has adopted laws on various heads of intellectual property as part of its international obligation. The Copyright Act of 1957 and the Copyright Rules of 1958, which have been amended several times, govern the law of copyright and related rights in India.

Principles Governing Copyright Law

1. Subject matter of copyright protection

Practically every copyright law provides for the following kinds of works to be protected: literary works including novels, stories, poems, dramatic works, works of music, whether series or light, songs, choruses, operas, maps and technical drawings, photographic work, cinematographic works, sound recordings, computer programming, etc. Section 13 of the Indian Copyright Act provides for the subject matter of copyright protection in India.

2. Copyright subsists in Original Work

Copyright is bestowed on original works of literature, drama, music and art. The principle of originality is to shield works from the creator himself and not from someone else. The original literary, dramatic, musical and artistic works are granted copyright protection and not ideas, and therefore original talent or labour, not originality of thought, is a necessary requirement, in order to perform the works.

In this context, the term “original” does not mean the work should be the expression of original or creative thoughts; the necessary originality is the expression of thoughts. No copyright is given to a pure copyist.

3. Copyright does not protect ideas

The defence of copyright includes the protection of expressions and not ideas processes, operational methods or as such mathematical concepts. It is not original thinking or knowledge that is covered, but the original expression in a specific way of thought or information, since the author is both a consumer of ideas that others create and a developer of new ideas.

It is, therefore, an infringement only if the defendant has used the way the thought or the information is expressed unlawfully.

4. Copyright and Independent Protection

Copyright works to prevent the copyrighted work of a person. There is no infringement of copyright in so far as an entity may produce the same or similar work independently.

The similarity between the infringement work and the copyrighted work of the author or proprietor is not in itself an infringement of copyright if the similarity results from the fact that both works deal with the same subject or if they are of a common source. Nevertheless, the wrongful exploitation of another’s work constitutes a legal breach or infringement.

5. Statutory right

The law on copyright is governed by a statute. The Indian copyright law is provided for in the 1957 Copyright Act. Section 16 of the Act provides that “no person, other than in compliance with and under the provisions of that law, has the right to copyright or any such right to work, whether it be literature, dramatic, musical, artistic, whether published or unpublished”.

6. Negative right

Copyright imposes a negative right or detrimental obligation on others, i.e. it prevents others from using the author’s work for their own gain without the author’s permission or authorization. Accordingly, the general principle is that the protected works can not be used without the owner’s permission.

7. Formalities for obtaining copyright

In India, there is copyright when a work has been created and copyright does not have to be formalized. Copyright is therefore automatically assigned to work. Registration is only intended to provide a prime preliminary proof of details entered into the registry.

Registration is only intended to provide a prima facie evidence of the facts entered in the Registry. The Act may record published and unpublished works. Copyright may also be claimed in works published before 21 January 1958 i.e. before the 1957 copyright law, given that the work is still copyrighted.

8. Copyright is a bundle of rights

The word copyright is not a single word, but is based on three copyright bundles:

(a) Exclusive Economic rights –  The enumeration by various international treaties and national laws of the holder of exclusive economic rights is not clear. Various rights overlap and each right’s precise scope varies across countries. However, the Berne Convention, the Universal Copyright Convention and almost any national copyright law are based on or equivalent to basic economic rights. They are the right to reproduce, adaptation rights, the right to distribution, the right to public performance, the right to the radio, the right to cable casting, the right to rent. These rights are listed in the Indian Copyright Act 1957 in accordance with Section 14.

(b) Moral rights or special rights of the author- The author has moral rights regardless of the economic rights of the author and even after the transfer of such rights. These moral rights include: (i) the right of paternity or of claim to authorship; and (ii) the right of integrity or of opposition to any distortion, mutilation or other modification. The 2012 amendment introduced a new section- 38B, which gives the performers moral rights. The right to identify as an executor of his performance and his rights of integrity are two rights granted.

(c) Neighbouring rights or related rights – Special rights are accorded under Articles 37 and 38 of the Copyright Act to broadcasting organizations and performers. These are referred to under international conventions as “neighbouring rights”.

9. Civil and criminal remedies and border measures

In different works, there are three types of remedies against copyright infringement.

Civil remedies include injunction, costs and benefits account, collection of copies of infringement and conversion damages. Criminal remedies provide the imprisonment of the perpetrator or the imposition of a fine or both, the seizure of infringing copies and the return to the copyright owner of infringing copies.

Administrative remedy against the importation of infringing copies is available to the copyright owner. In India, the copyright registrar is empowered to issue an order forbidding such copies to be imported into India upon application by the copyright owner in any work or his duly authorized agent.

10. Limitation of the rights

Copyright is not the owner’s absolute right. The following limitations apply to it.

  1. Temporal limitation – There is no indefinite continuation of copyright. For a period of time, the law provides a duration during which the copyright owner’s economic rights exist. The work subsequently falls into the public domain, i.e. anyone can use the work without the permission of the copyright owner’s legal heirs.
  2. Permitted use or Fair use or Fair Dealing doctrine – Such actions which are usually copyright restricted can take place, without the copyright owner’s permission, in the circumstances defined by law. This is usually called free use of the job or fair dealing doctrine. Types include, among other things, replication of research work or purely for the personal and private use of the reproduction made by an individual, etc.
  3.  Geographical limitation – The proprietor of copyright of a work is protected against copyright acts done in that country by the law of the country.
  4. Non-voluntary licenses- Certain countries’ laws permit the utilization without authorization of protected works, provided the copyright owner has fair remuneration.

Reference:

  1. Alka Chawla, Law of Copyright: Comparative perspectives
  2. wipo.int

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