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UNIT 7

COPYRIGHT LAW IN INDIA

Copyright Law in India

Structure

7.1 Introduction

Objectives

7.2 The Indian Law

7.3 Who is an Author or Owner of the Copyright?

7.4 Rights of Broadcasters and Performers

7.5 Registration of Copyright

7.6 Assignment, Licensing and Transmission

7.7 Infringement

7.8 International Copyright and Copyright Societies

7.9 Summary

7.10 Answers and Hints to SAQs

7.1

INTRODUCTION

The word copy has a range of meanings: transcript, imitation, reproduction of an original writing or painting etc. Creators of literary artistic or musical works in ancient times did not worry about their work being copied. However, the question of copyright came to the fore when the printing technology made its appearance. The first to be affected adversely by printing were the authors whose books/works could be copied in large numbers by unauthorised persons, who would reap the benefits depriving the authors of just rewards of their intellectual work. Later as technology advanced, several other categories of originators of intellectual works were included under copyright: literary, dramatic, musical, artistic, cinematograph film, sound recording.

Broadly speaking, copyright is an exclusive right granted by law for a specified period to the creator of a work of thought against any form of copying by an unauthorised person. Under copyright, several acts are defined which are prohibited to prevent what would amount to copying. The things for which copyright subsists emerge from ideas, concepts, thoughts etc. that are common to all, but these things have been put in a fixed form using one’s mental faculty.

The first enactment on copyright in India was the Indian Copyright Act, 1914, which modified the Copyright Act, 1911 of UK that was applicable at that time to India. To meet the changes brought by advances in technology of communication and reproduction, as also the emergence of India as an independent nation with its own aspirations and agenda for development, a complete revision of the law of copyright was effected in the form of The Copyright Act, 1957. It was amended from time to time, the last being in 1999. The copyright Act, 1957, as amended in 1999 came into effect on January 15, 2000. In the following text, we will refer to it as the Act.

The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with an exclusive right for a limited period. Such exclusive rights are permitted for literary, dramatic, musical, artistic, cinematograph film and sound recordings. Licensing the right to publishers, film producers and music record manufacturers permits the economic exploitation. The law also aims at preventing anyone from reproducing or exploiting another person’s work without authorisation.

Please remember that copyright in a work is not a single right; it bundles several rights together. For example, copyright in a book is not merely the right to bring it out in

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Awareness Course on Intellectual Property Rights

varied editions, but also the right to serialise it in media, to its dramatic and cinematographic versions, translation, abridgement and adaptation etc.

Copyright is also accompanied with other related rights going beyond reproduction of the work; these rights are known as Neighbouring Rights. These include the right to works derived from the original work, the right to public performance and the right to recording and broadcasting.

The bundle of rights that constitutes copyright has two kinds of rights: (a) the economic rights that take care of the economic interests of the author, and (b) the moral rights, that is, the rights that concern the status, respect and dignity of the author. The economic rights deal with issues like permission to publication or reproduction of the work or their adaptation or translation and the right to assign or license the copyright. The moral rights include the right to claim and be recognised as the author of your intellectual creation, and have your name mentioned as the author whenever your work is used; similarly the author has the right to object to the use of the work in a manner or in a context that would compromise his honour and reputation.

Objectives

After studying this unit, you should be able to:

explain the meaning and nature of copyright;

understand the subject matter of copyright;

throw light on the rights of broadcasters and performers;

discuss the copyright violations and penalties; and

highlight the characteristic features of Indian copyright administration.

7.2 THE INDIAN LAW

Only original works are entitled for protection under the Act. Copyright is not concerned with literary quality, or artistic merit or originality of thought in the work. Ideas are not protected by copyright; only the material form of their expression is protected provided sufficient labour, skill and judgment has been exercised. Two authors writing independently on the same theme would produce two independent works and copyright in each work would belong to the respective author.

Subject Matter of Copyright

The copyright shall subsist in the following classes of work:

Original literary, dramatic, musical and artistic works;

Cinematograph films

Sound recording

Literary work includes computer programmes and compilations including databases. Dramatic work includes any piece for recitation, choreographic work or entertainment in a dumb show, scenic arrangement or acting, the form of which is fixed in writing or otherwise.

Musical work includes graphical notation of music; it does not include any work or action intended to be sung, spoken or performed with the music.

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Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart, plan); an engraving; a photograph; a work of architecture having an artistic character or design, including its model; any other work of craftsmanship.

Cinematograph film 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.

Copyright Law in India

Sound recording means recording of sounds on any medium, from which the original sound may be reproduced regardless of the medium of record or of the method used to reproduce the sounds.

Meaning of Copyright

The copyright means exclusive right to do or authorise to do the following acts:

In the case of literary, dramatic or musical work:

to reproduce the work in any material form, this includes storing it by electronic means;

to perform the work in public or communicate it to the public;

to make any cinematograph film or sound recording in respect of that work;

to make any translation or adaptation of the work or to do any of the above acts in respect to any translation or adaptation of the work.

In the case of computer programmes:

any of the acts specified above;

to sell or commercially rent any copy of the computer programme.

In the case of artistic work:

to reproduce the work in any material form, including depiction in 3-D of a 2-D work or in 2-D of a 3-D work;

to communicate the work to the public;

to include the work in any cinematograph film;

to make an adaptation of the work and/or to do any of the work mentioned above in respect of the adaptation.

In the case of cinematograph film:

to make a copy of the film, including a photograph of any images forming part of the film;

to sell or hire any copy of the film;

to communicate the film to the public.

In the case of sound recording:

to make any sound recording embodying it;

to sell or give on hire or offer for sale any copy of the sound recording;

to communicate the sound recording to the public.

Thus, Copyright in a work is not a single right, but it bundles several rights together, including a negative right. Broadly, these rights can be grouped as follows:

the right of publication;

the neighbouring (related) rights;

the right to prevent anybody from altering the content of the work that may damage the author’s reputation; and

the right of authorship or the right of paternity.

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Awareness Course on Intellectual Property Rights

Even after a copyright is assigned wholly to another person, the author of the work retains the right to the claim for authorship of the work and the right to restrain or claim damages in respect of any distortion, mutilation, modification that are prejudicial to the honour or reputation of the author. The author has the right to prosecute anybody who publishes the work without the author’s consent.

The artist who performs the drama or music has no right and there is no copyright in the performance as such, even though the dramatic work and music and lyrics can be copyrighted.

Criteria for Entitlement for a Copyright

In order to be entitled for a copyright in a work in India, its author must fulfil certain other qualifications besides the originality of the work in respect of form of expression. These require that the work be published in India, or if it is first published outside India, the author, at the time of publication, be a citizen of India, or if the work is published posthumously, the author at the time of death be a citizen of India. 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. However, this does not apply to works of architecture.

The above mentioned requirements do not apply to works of foreign authors or of foreign organisations. However, the Central Government may extend the copyright protection under the Act to such works subject to certain conditions on the basis of reciprocal arrangement with foreign countries in respect of grant of copyright to Indian authors in those countries similar to those granted to their own nationals.

Spend

4 min.

SAQ 1

Copyright in a literary work confers a bundle of rights on the author. What rights make up this bundle?

SAQ 2

What does originality of a work mean in the context of its entitlement for a copyright?

7.3 WHO IS AUTHOR OR OWNER OF COPYRIGHT?

The author of the work shall be the owner of the copyright. The author means:

in the case of literary and dramatic work, the author of the work;

in relation to music, the composer;

in the case of a photograph, the person taking the photograph;

in relation to a film or sound recording, the producer;

in the case of computer generated literary, dramatic, musical or artistic work, the person who created the work.

But if the author is in the employment of a proprietor of a newspaper, periodicals etc. under a service contract or makes a work for publication in a newspaper etc, then the employer will be the first owner only for the purpose of its publication/reproduction unless a specific provision to the contrary is specified in the Contract. For other purposes the author will be the first owner. In the case of any photograph taken or painting or portrait drawn, or a cinematograph film, or an engraving made for a consideration at the instance of any person such person will be the first owner, of the copyright.

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It is important to remember that an author may create a work when he is working under a contract or when he is not under any contractual obligation to anybody. In the case of contract, it could be in form of a contract of service or a contract for service. In a contract of service, the employer directs and controls the time, and the way; the employee would work and deliver the work. In the contract for service, a person is hired to do a certain work but left free to decide on the course of action and the way to work in order to deliver the work. The crucial consideration is to decide if the person employed as part of the business for a work, which is integral to the business, or whether the work under the contract is not integral part of the business but merely accessory to business. If the employment and the work are integral to the business, the contract is of service; if not, it is for service. In contract of service, the employer is the first owner of the copyright; in a contract for service, the copyright vests in the creator of the work.

Copyright Law in India

Thus an architect commissioned to prepare the plan for a company’s buildings is an independent contractor and has the copyright in the plans created.

There is no copyright in idea even if it is original. But if the same idea is dictated to another person who makes a dramatic or artistic work based on that idea the work could be copyrighted and the creator of such work is the owner of the copyright. But if a shorthand writer takes down what is dictated by a person, the person who dictates the content is the author and owner of the copyright.

You already know that the first requirement for a copyright to subsist in a work is the originality of expression and form and not the novelty of the idea. Also, literary or artistic merit is not at all a consideration for determining whether a work is entitled for copyright protection.

We now consider a few situations which will enable you to appreciate better, what entitles a work for copyright.

An abridgement of an original work is a product of considerable investment of knowledge, skill and labour and presents the work in a much more precise and concise way. Thus the abridgement itself qualifies to be an original work and is a subject matter of copyright. Similarly, a translation of a literary work is itself an original literary work entitled to copyright protection, if the translator has invested sufficient labour and skill in it. However, if the original work is protected by copyright, publication of abridgement or translation would require the permission of the author owning the copyright, otherwise it will constitute infringement of the copyright.

The case of books on history is slightly different. The facts of history carry no copyrights, but their presentation can. Also, while other literary books may be for enjoyment alone, even if fictional, a work on history propagates information and it is expected that information contained there, or its thesis and conclusions would be used by others. Therefore, the knowledge presented in a historical work can be extracted. Such extraction can itself be the subject matter of a copyright.

A lecture, if it is reduced to writing before delivery, carries copyright. A lecture delivered extempore will not carry copyright but still be protected invoking breach of confidence. This fact holds because of the understanding that the audience is admitted for listening the lecture but not to publish it.

Letters – private, business or government whether handwritten or dictated, carry copyrights.

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Awareness Course on Intellectual Property Rights

Dictionaries, directories, catalogues, even tambola ticket books are all subject matters of copyright as they are original works requiring investment of thought, skill and labour.

A single word cannot be copyrighted. The logic is two-fold. First, it is not a creation of skill or labour; second, an exclusive right over a word would take it away from use.

Spend

4 min.

SAQ 3

What is meant by author in relation to

(a) music

(b) a photograph

(c) a film

SAQ 4

Who owns the copyright in the following cases – and why?

i) For a chapter in this book written by an author under contract;

ii) an architectural plan prepared by an architect for a client who had commissioned the architect paying him a hefty fee;

iii) the translation of a literary work.

7.4 RIGHTS OF BROADCASTERS AND PERFORMERS

Every broadcasting organisation has a special right to reproduce its broadcasts within 25 years from the first day of the year following the year in which the first broadcast is made.

During this period anybody doing the following acts without authorisation of the owner shall be deemed to be infringing the broadcast reproduction right:

re-broadcasting the broadcast;

broadcasting it to the public on payment of any charges;

making any reproduction of such sound recording or visual recording where the initial recording was done without licence;

selling or hiring to the public such recordings.

Every performer who engages in any performance shall be entitled to a special right known as performer’s right. The performer’s right shall subsist until 50 years from the beginning of the calendar year following the year in which the performance is made. During this period the following acts if performed without the permission of the performer shall be considered as infringement:

making a sound recording or visual recording of the performance;

reproducing the sound recording or visual recording of the performance;

broadcasting the performance or sound recording in disregard of the broadcasters’ reproduction right;

communicating the performance to the public otherwise than by broadcast.

Broadcast reproduction right and performer’s right are not infringed by

making of a recording for private use or solely for purposes of bona fide teaching or research;

fair use of excerpts of a performance or a broadcast in reporting current events or for bona fide review, teaching or research;

by acts not regarded as infringement of general copyright discussed in sec 7.7.

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SAQ 5

Spend

2 min.

Copyright Law in India

At a school function meant to be attended by students, their parents and the staff of the school, a drama done by a company earlier for general public, is enacted by the dramatic club of the students in the school. Does it constitute an infringement of the performer’s right? Why?

7.5 REGISTRATION OF COPYRIGHT

The author or publisher of any work or the owner of the copyright in any work may apply to the Registrar of Copyright in prescribed form, accompanied by due fees, to enter the particulars of the work under the Register of Copyrights. The Registrar, after holding such enquiry as he deems fit, may enter the particulars of the work in the register. There is provision for correction of entries in the register, or rectification of the Register. Every entry mode in the Register, or any correction or rectification is required to be published by the Registrar in the official Gazette.

Registration confers a bundle of rights in relation to the copyright, as discussed. However, it is not necessary to register the work for copyright. There is nothing in the Act, which makes registration of copyright as a precondition for availing of the remedies for infringement. Registration only provides prima facie evidence of particulars entered, without the necessity of further proof by way of production of the original.

7.6 ASSIGNMENT, LICENSING AND TRANSMISSION

The object of granting exclusive right is that the owner can economically exploit it for

a limited period. For the purpose of monetary benefit she can assign it or license it for

a royalty.

Assignment

The owner of the copyright may assign the copyright to another person either wholly or partially and either for the whole term of the copyright or any part of it. The owner may place legitimate restrictions on the use of copyright while assigning it to another person.

Assignment is in essence a transfer of right. Registration is not compulsory for assignment.

Unless the assignment is in writing and signed by the assignor or by her duly authorised agent, it is not a valid assignment. The assignment should contain the identity of the work assigned and should specify the rights assigned, the territorial extent and period of such assignment. If the period of assignment is not mentioned it shall be deemed to be 5 years. If the territory for the assignment is not specified it shall be presumed to extend to whole of India. It shall also specify the amount of royalty to be paid for the assignment. However, if the assignee does not exercise a right assigned to him within a period of one year the assignment in respect of such right shall be deemed to have lapsed.

Transmission

Copyright is a kind of movable property, which can be transferred by will, or operation of law. When the owner of the work or copyright dies, the copyright will pass to her legal heirs and if she dies in testate (without making a will) then it will go

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to her personal representative. Where a person is entitled to a manuscript of literary,

dramatic or musical work, or to an artistic work through a bequest and the work is not published before the death of the testator, then, unless there is anything in the will to the contrary, the bequest will include also copyright in such work.

Licences

A licence is an authorisation to do a particular act. It is a limited right where the

ownership of the copyright still remains with the author. Various rights of a work like, publication rights, in book form or in a cinematograph form, can be licensed to different persons. In licence the licensee gets the right to do a particular act in accordance with the conditions imposed in the licence deed.

Compulsory Licence

If the owner of the copyright in any Indian work, which has been already published or

performed in public, refuses to republish or allow the republication of the work or refuses permission for performance in public of the work those who are interested in republishing the work or repetition of the performance can complain to the Copyright Board. On satisfactory evidence and after hearing both sides the Board could pass an order of compulsory licence to the complainant.

In the case of an unpublished Indian work a compulsory licence can be issued if the

copyright owner is dead, or unknown, or cannot be traced. The interested person can apply to the Copyright Board for a licence to publish the work or translation in any language.

Spend

5 min.

SAQ 6

What is essential difference between assignment and licence of a copyright?

SAQ 7

Indicate if the following statements are true or false?

i) The owner of a copyright may assign the copyright to another person partially and for a part of the term.

ii) Once the owner assigns a copyright wholly to a person, only then the assignment must be registered.

iii) If the assignment of a copyright does not specify the period of assignment, it will be taken to be valid for the entire term of the copyright.

7.7

INFRINGEMENT

What Constitutes Infringement

Anyone who violates the exclusive rights of the owner of copyrighted work for its commercial exploitation or its communication to the public, without the author’s consent or authority is infringing the copyright. Under the Act Infringing copy means:

The reproduction of literary, dramatic, musical or artistic work;

A copy of the cinematograph film made on any medium by any means;

In relation to sound recording any other recording embodying the same sound recording, made by any means;

In relation to a programme or performance, which entails a broadcast reproduction right or a performer’s right, the sound recording or cinematographic film of such programme or performance.

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Copyright in a work is infringed if any person, without due authorisation of the owner of the copyright:

Copyright Law in India

Does any act which is against the exclusive right of the copyright owner; or

Permits for profit a place to be used for communicating the work to the public, unless he was unaware that such communication to the public would be an infringement of copyright; or

Sells or hires or by way of trade displays or distributes or exhibits in public, any infringing copy, so as to prejudicially affect the owner’s interest. However, import of one copy for private use is not infringement.

To summarise, the infringement occurs if any of the following acts is committed without authorisation from the author:

Reproduction of the work in a material form;

Publication of the work;

Communication of the work to the public;

Performance of the work in public;

Making of its translations and adaptation; and

Commercially exploiting the work, or trying to do so.

What is not Infringement

A blanket ban on reproduction of a work of science, literature and arts, either in full or part may, in certain circumstances, become inimical to the public purpose that a copyright is intended to serve. For example, such a total ban may, instead of promoting and stimulating study and research in science, humanities and arts, lead to thwart it and become counter productive. The Act, recognising such possibility, permits copying and reproduction of and from a copyrighted work in certain circumstances without attracting provisions of infringement. The principle behind such statutory exceptions to infringement is one of fair dealing or fair use of the copyrighted work, which provides balance between the copyright owner’s exclusive rights, and the wider public interest. The fair use is to be determined by considering whether the part reproduced or copied is substantial and amounts to plagiarism. To determine whether the portion taken up from a work is substantial one does not necessarily depend on the volume of the material reproduced; it is very much a question of the importance and the import of the part picked up.

Statutory Exceptions

The Act has a long list of actions that are not to be regarded as infringement of copyright:

a fair dealing with a literary, dramatic, musical or artistic work for private use including research, and for criticism or review;

in the case of a computer programme, making copies or adaptation by the lawful possessions of a copy of the programme for the original or back up purposes; or for understanding its underlying principles and ideas, or for non- commercial personal use;

a fair dealing of the work for reporting current events in newspaper or a periodical, or in a broadcast or a film or by means of a photograph. (The publication of a compilation of addresses or speeches delivered in public is not a fair dealing);

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reproduction for the purpose of a judicial proceeding or a report of judicial proceedings; or reproduction in a work prepared by the secretariat of a legislature exclusively for the use of members of the legislature;

reading or reciting in public extracts from a published literary or dramatic work;

publication of short passages in a collection for use in educational institutions. Not more than two such passages from works by the same author can be taken.

reproduction by a teacher or a pupil in the course of instruction, or as a part of questions for examination or in answers to such questions;

performance in the course of activities of an educational institution, if the audience is limited to the staff and students and parents and guardians of the students and persons directly connected with the institution;

making of sound recordings in respect of any literary, dramatic or musical work,

if the person making the recordings (i) has given a notice of his intention to make

the recordings, (ii) has provided copies of all covers or labels with which the recordings are to be sold, and (iii) has paid due royalties to the author, at the rate

fixed by the copyright Board. (No recording can be made until the expiry of two calendar years from the end of the year in which the first recording of the work was made).

Playing the recording to an audience, if it is utilised in a room in a private residence meant for the common use of residents, or in a club/organisation as part of the amenities provided by it, and which is not conducted for profit;

performance in an amateur club before a non-paying audience, or for the benefit of a religious institution;

the reproduction in a newspaper, magazine, periodical of an article on current economic, political, social or religious topics, unless the author has reserved to herself the right of such reproduction;

the publication in a newspaper etc. of a report of a public lecture;

the making of a maximum of three copies for use in a public library, if such work

is not available for sale in India;

the reproduction for the purpose of research and/or private study, or with a view to publishing an unpublished work kept in a library, museum or other public institution. However, if the identity of the author of such work is known, such reproduction is to be made only after more than sixty years have passed since the death of the author; if there are more than one authors, the sixty years are to be counted from the death of the author who died last;

the reproduction of any matter, published in any official Gazette, except an Act of

a Legislature; any Act of a Legislature, if it is reproduced with any commentary

thereon or any other original matter; the report of any Committee, Commission, Board or a like body appointed by the Government, if such report has been laid on

the Table of the Legislature, unless prohibited by the Government; any judgment of a judicial authority unless prohibited;

the reproduction/publication of a translation of an Act of Legislature, in any Indian language if no such translation produced by the Government exists, or if such government translation exists, it is not available for sale to public. However, in such cases, it is to be stated at a prominent place that such translation has not been authorised or accepted by the Government;

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the

making or publishing of a painting, drawing or photographs of a work of

architecture;

Copyright Law in India

the making or publishing of a painting, drawing, engraving or photograph of a

sculpture or other artistic work, if such work is permanently located place; and

in a public

the inclusion in a cinematograph film of any artistic work permanently situated in a public place, or any other artistic work by way of background, or if such inclusion is incidental to the principal matters represented in the film.

It

may be noted that the exceptions to infringement in relation to a literary, dramatic,

musical or artistic work, are equally applicable in relation to any translation or adaptation of such a work since they qualify as original works in their own right and copyright subsists in them too. However, for publishing a translation, permission of the author of the original work is necessary.

SAQ 8

As a translator of a short story from Italian into English, Ram will have copyright in the translation. Does he need to have permission from the author of the original story

in Italian?

Spend

2 min.

Remedies

In case of infringement of a copyright the owner of the copyright can file a suit in a

district court having jurisdiction seeking remedies by way of (i) injunction, (ii) damages, (iii) accounts or (iv) otherwise. The owner of copyright includes an exclusive licensee, and in the case of an anonymous or pseudonymous literary, dramatic, musical or artistic work, the publisher of the work, until the identity of the author is satisfactorily established. In the case of such a work under joint authorship, it is sufficient that the identity of any one author is satisfactorily established.

Injunction is a normal remedy, though discretionary on the part of the court. It stops the infringement during the pendency of the proceedings and ensures that no further loss/damage is caused to the owner of the copyright during the period when the injunction is in force.

Damages account for the loss in money terms suffered by the owner of the copyright due to infringement.

Accounts relates to the accounts of net profits earned by the defendant (infringer). If there are no profits, accounts is not ordered as a remedy.

Damages and accounts are alternative remedies; the owner can choose only one of them, not both.

Otherwise, as a remedy, is a general provision authorising the court to grant such other reliefs as the court may deem necessary for complete redressel of the complaint, e.g., destruction of the infringing material.

SAQ 9

A book is published under a pseudonym. Who is the owner of the copyright in this

case?

Spend

2 min.

Penalties

A person who knowingly infringes or abets the infringement of a copyright is punishable with imprisonment ranging from six months to three years, and with a fine ranging from fifty thousand rupees to two lakh rupees. If the infringement has not

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been done for gain or in trade or business, the court may reduce the term of imprisonment and the amount of fine and mention the reasons for doing so in the judgement.

In the case of second, and every subsequent, conviction the term of imprisonment is

minimum one year that may go up to three years, and the amount of fine is minimum

one lakh rupees that may go up to two lakh rupees.

A person who knowingly uses on computer an infringing copy of a computer

programme is punishable with a prison term ranging from seven days to three years and a minimum fine of fifty thousand rupees which may go up to two lakh rupees. However if the use has not been for gain or in trade or business, the court may not impose a prison term and may impose a fine, which may go up to fifty thousand rupees; the reasons for reduced sentence are to be mentioned in the judgment.

A sound recording is required to display on the recording itself, and on the container,

the names and addresses of the person making the recording, and the owner of the

copyright, as also the year of its first publication. Similarly, a video (cinematograph) film has to show the following particulars in the film, as well as on the video cassette

or other container: a copy of certificate granted by the Board of Film Certification; the name and address of the person making the film with permission from the owner

of the copyright to make such film; the name and address of the copyright owner.

A person making a sound recording or a video film, which contravenes these

provisions, is punishable with imprisonment up to three years and shall also be liable

to a fine.

7.8 INTERNATIONAL COPYRIGHT AND COPYRIGHT SOCIETIES

India is a party both to the Berne Convention for Protection of Literary and Artistic Works (1886) and the Universal Copyright Convention of the UNESCO besides the TRIPS Agreement of the World Trade Organisation. The Berne Convention rests on three basic principles: (a) national treatment, under which works originating in a member-state are to be given the same treatment in each of the other member states as given to works of their own nationals; (b) automatic protection, according to which such national treatment is automatic and not dependent on any formality; (c) independence of protection according to which enjoyment and exercise of the rights granted is independent of the existence of protection in the country of origin of the work. The principle of national treatment also informs both the Universal Copyright Convention and the TRIPS Agreement. In keeping with its international obligations

under these treaties India extends the same copyright protection to foreign nationals as

it gives to its citizens on the basis of reciprocity, that is, if a foreign country accords

the similar protection in matter of copyright to citizens of India, as it does for its own citizens. The Government of India under the Act has the power to extend all or any provisions of the copyright Act to a foreign work on a reciprocal basis. International Copyright Order, 1999, governs such action.

Similarly, works brought out by international organisations have copyright protection

in India.

Every order of international copyright is however, required to be laid before both Houses of the Parliament and is subject to any modifications that the Parliament may make.

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Copyright Societies

Copyright Law in India

The task of marketing and managing the monetary aspect of their works may be quite a bother for the authors of literary, dramatic, musical, artistic work, who have to make heavy investment of intellect and creative talent in producing a work worthy of a copyright. A copyright Society is a lawful body that safeguards the interests of owners of copyright works. Before the Copyright (Amendment) Act, 1994 came into force the law recognised Performing Rights Societies, which only granted licences for the performance of a copyrighted work. The amendment of 1994 transformed the performing Rights Societies to Copyright Societies and enlarged their scope from merely granting licences for performance in public to include all rights in a copyrighted work. Thus the functions of the copyright societies include

granting licence for reproduction, communication to the public and performance in public of a copyrighted work;

trace infringement of copyright and take legal action against infringement.

Ordinarily, no more than one copyright society is registered to do business in one class of works. Registration of a society can be suspended, or cancelled if it functions in a manner detrimental to the interests of copyright owners. A copyright society has to get an exclusive authorisation from an owner to administer any right in a work by issuing licenses and/or collecting licence fees; the owner can withdraw such authorisation later. The society can enter into agreement with any foreign society or organisation dealing in similar rights to administer Indian copyrights abroad, or foreign copyrights in India. The copyright society distributes the fees collected by it in pursuance of licence among the owners of rights, after deducting its own expenses.

SAQ 10

Spend

3 min.

What is meant by international copyright and how is it obtained?

Copyright Board

The Central Government has constituted a Board called the Copyright Board, which consists of a Chairman and not less than two and not more than fourteen other members. The tenure of office of the Board is prescribed by the Central Government.

The Chairman of the Copyright Board shall be a person who is or has been a judge of High Court or is qualified for appointment as judge of High Court. The Registrar of Copyrights will function as Secretary of the Board.

7.9

SUMMARY

The Copyright is an intellectual property right attached to original works in which the right subsists.

In India copyright is applicable to literary, dramatic, musical, artistic, cinematograph film, sound recording and computer programmes.

Copyright is assigned to a fixed work not an idea.

The creators of these intellectual properties viz. writer, playwright, music composer, painter, photographer, film producer, sound recorder, programmer and architect are the natural owners of the copyright. In case of contractual assignments, the terms of contract dictate the ownership of the copyright.

The neighbouring rights associated with copyright include rights to perform, rights to recording and rights to broadcasting. The owner of the copyright in a

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Awareness Course on Intellectual Property Rights

work may apply to the Registrar of Copyrights for registration of the particulars of the work in the Register of Copyrights. The Registrar after due enquiry makes entry in the Register, and publishes it in the official Gazette. However, registration is not compulsory. Remedies against infringement are available even if the copyright is not registered. However, registration has advantage in making defence of rights easier.

The Act confers upon the owner of the copyright the power to exploit the same for the period prescribed under the Act.

Terms of copyright for different kinds of work are different. They are summarised as under:

i) In a published literary, dramatic, musical and artistic work (other than a photograph)

Sixty years from the beginning of next calendar year following the year in which the author dies; in the case of a work of joint authorship, the reference to the death of the author shall mean the death of the author who dies last.

If such work is published anonymously pseudonymously, sixty years from the beginning of the calendar year following the year of first publication of the work, and if the identity of the author is disclosed before the expiry of the said period until sixty years from the beginning of the year following the year in which the author dies. In the case of joint authorship, the reference to the author shall be taken to mean the author who dies last.

If such work is published posthumously, sixty years from the beginning of the next year following the year in which the work is first published.

ii) In a photograph/cinematograph film/sound recording.

Until sixty years from the beginning of the year following the year in which the photograph/cinematograph film/sound recording is first published.

In the case of a work where the first owner of copyright is government/public undertakings/international organisations sixty years from the beginning of the next year following the year in which the work is first published.

iii) In the case of broadcasts

25 years from the beginning of the next year following the year in which the broadcast was first made.

iv) In the case of performances

50 years from the beginning of the next year following the year in which the performance was first made.

The copyright can be assigned, where the ownership of right in whole or in part is transferred to the assignee.

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The copyright can also be licensed to perform some acts like reprinting, translation etc., where the ownership of right remains with the original owner.

Unauthorized reproduction of copyrighted material, publication of such work, copying of film on any medium, recording any other sound recording by any means, performance of work in public, translation, adaptation or commercial exploitation of the copyrighted material amount to infringement of copyright.

In public interest, some statutory exceptions are provided to copyright. These include fair use of copyrighted material for educational purposes, reproduction in newspaper for reporting purposes etc.

The infringement can be compensated by injunction, damages, accounts or otherwise.

The penalties for copyright violation may range from fine to imprisonment or both.

Copyright societies grant licences for public performances and also regularize the other activities related to copyright material.

Copyright Law in India

7.10 ANSWERS AND HINTS TO SAQs

SAQ 1

The copyright on literary work includes rights of translation, serialization and adaptation for dramatic or cinematographic version.

SAQ 2

Copyright protects originality of the material form of expression of an idea and not the idea itself.

SAQ 3

a) The composer of music

b) The photographer

c) Film producer

SAQ 4

i) The moral right remains with the person who writes the chapter, but the economic rights will be decided by the terms of contract.

ii) the architect

iii) the translator, if the translation has the permission of the author owning the copyright in the original work.

SAQ 5

No, since it is not a public performance but only for a select audience without profit making motive.

SAQ 6

In assignment, the ownership of rights is transferred to the assignee whereas in licence, only particular acts are allowed, with ownership remaining with the author.

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SAQ 7

i) T

ii) F

iii) F

SAQ 8

Yes

SAQ 9

Till the identity of author is established, the publisher is the copyright owner of such book.

SAQ 10

Any work, entitled for copyright, originating in India, gets automatic protection in all countries party to the Berne Convention for protection of literary and artistic works. India also grants national treatment in matters of copyright protection to nationals of all member States of the Berne Convention, the Universal copyright convention and the TRIPS Agreement on the basis of reciprocity. No special formalities are required for seeking international copyright.

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