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COPYRIGHT - AN INSIGHT & OVERVIEW

06 October 2013

SOUMYA AHUJA

ADVOCATE & ATTORNEY

ATHREYA & ASSOCIATES, MUMBAI

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INTELLECTUAL PROPERTY RIGHTS

Creations of the human intellectGranted for the results of creative activity

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FORMS OF IP

COPYRIGHT & RELATED RIGHTS

INDUSTRIAL PROPERTY

PATENTSTRADEMARKSINDUSTRIAL DESIGNSG.I.TRADE SECRETSINTEGRATED CIRCUITS

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WHAT IS A COPYRIGHT

An exclusive rightGranted to an authorProtects original works of authorshipFixed in any tangible medium of expression

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PURPOSE

Advancement of Knowledge Balancing the rights of copyright owners with the rights of the public for access to and use of works

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WHY PROTECT ??

To prevent unauthorized reproduction of an authors workGive the owner the exclusive right for a limited period to authorize or prohibit certain use of his work by others

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SCOPE OF PROTECTION

Original work independently created by authorsDoes not protect any idea, procedure, process, system, method of operation, concept, principle or discovery - Unless fixed or expressed in a

tangible form

Work must be the result of at least some creative effort on the part of its author.

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COPYRIGHT - HISTORY

First national law (1709)

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The Statute of Anne was the first copyright law in the Kingdom of Great Britain (thus the United Kingdom), enacted in 1709 and entering into force on April 10, 1710.

It is generally considered to be the first fully-fledged copyright law. It is named for Queen Anne, during whose reign it was enacted.

The Statute of Anne was the first real copyright act, and gave the publishers rights for a fixed period, after which the copyright expired.

Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.

FIRST INTERNATIONAL TREATY (1886)

Berne Convention for the Protection of

Literary and Artistic Works (1886)

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The three basic principles are the following:

(a) (principle of national treatment) Works originating in one of the contracting States must be given the same protection in each of the other contracting States [1].

(b) (principle of automatic protection) Such protection must not be conditional upon compliance with any formality [2].

(c) (principle of the independence of protection) Such protection is independent of the existence of protection in the country of origin of the work If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases [3].

(2) The minimum standards of protection relate to the works and rights to be protected, and the duration of the protection:

(a) As to works, the protection must include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression (Article 2(1) of the Convention).

(b) Subject to certain permitted reservations, limitations or exceptions, the following are among the rights which must be recognized as exclusive rights of authorization:

the right to translate,

the right to make adaptations and arrangements of the work,

the right to perform in public dramatic, dramatico-musical and musical works,

the right to recite in public literary works,

the right to communicate to the public the performance of such works,

the right to broadcast (with the possibility of a contracting State to provide for a mere right to equitable remuneration instead of a right of authorization),

the right to make reproductions in any manner or form

the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work [4].

The Convention also provides for moral rights, that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the authors honor or reputation.

The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979.

India Signatory to Berne Convention : April 1, 1928

WHEN DOES A COPYRIGHT COME INTO EXISTENCE

From the time the work is created in a fixed, tangible

form of expression

Immediately becomes the property of the author

who created the work

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REGISTRATION REQUIREMENTS

Automatic ProtectionRegistration not mandatoryPrima facie evidence in a court of law in dispute

relating to ownership of copyright.

Registration invaluable to a copyright holder who

wishes to take a civil or criminal action against the

infringer

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COPYRIGHT NOTICE - in absence of registration

2013 Soumya Ahuja

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INDIAN STATUTE ON COPYRIGHT

Principal Act:

The Copyright Act, 1957

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The Copyright (Amendment )Act, 2012

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TYPES OF WORKS OF AUTHORSHIP PROTECTED

Literary worksMusical worksDramatic worksPantomimes and choreographic worksPictorial, graphic, and sculptural worksMotion pictures and other audiovisual worksSound recordingsArchitectural works

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S. 13

Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories

Musical works. Songs, advertising jingles, and instrumentals.

Dramatic works. Plays, operas, and skits.

Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works.

Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.

Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.

Sound recordings. Recordings of music, sounds, or words.

Architectural works. Building designs, whether in the form of architectural plans, drawings, or the constructed building itself

Ownership of copyright

The author or creator of the work is the first owner of copyright

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EXCEPTIONS TO OWNERSHIP

Literary, dramatic or artistic work made in the course of employmentPhotograph taken or painting drawn or cinematograph film made for a valuable considerationWork made under contract for service or apprenticeshipLectures delivered in publicGovernment workWork made on behalf of public undertakingWorks of certain international organizations

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BASIC RIGHTS

Negative rightto stop others from exploiting the work without the copyright owners consent or license

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MORAL RIGHTS

The right of publication. The right of paternity. The right of integrity.

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The author of a work has got certain rights called "moral rights" as distinguished from the other rights called "economic rights". These are:

The right to decide whether or not to publish the work (the right of publication).

The right to claim authorship of a published or exhibited work ( the right of paternity).

The right to prevent alteration and other actions that may damage the author's honour or reputation ( the right of integrity).

ECONOMIC RIGHTS

Reproduction Right. Distribution Right. Modification Right. Public Performance Right. Public Display Right.

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S. 14

Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.

Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.

Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work."

Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance."

Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."

DURATION OF COPYRIGHT

Varies according to the nature of the work Whether the author is a natural person or a legal person, e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous

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literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the author, copyright subsists during the lifetime of the author plus 60 years.

anonymous or pseudonymous works until 60 years from the year of publication.

posthumous publications the term will be 60 years from the year of publication.

a photograph is 60 years from the year of its publication.

For cinematograph film and record also the term is 60 years from the calender year next of publication.

first owner of copyright is the Government of a public undertaking the term of copyright is 60 years from the year of publication.

Copyright works of International Organisations also have a term of 60 years from the year of publication .

WORK IN PUBLIC DOMAIN

Works not eligible for copyright protection Works that are either or no longer protected by copyright

E.G. PRIDE & PREJUDICE JANE AUSTEN PUBLISHED IN 1813

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COPYRIGHT IN FOREIGN WORKS

Provisions of this Act shall apply to works published and unpublished outside the territory of India

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WHAT AMOUNTS TO INFRINGEMENT?

S. 51-Making infringing copies for sale or hire or selling or letting them for hire;

-Permitting any place for the performance of works in public where such performance constitutes infringement of copyright;

-Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ;

-Public exhibition of infringing copies by way of trade; and

-Importation of infringing copies into India.-

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Motives for engaging in copyright infringement are the following:

Pricing Unavailability Usefulness Shopping experience Anonymity

Pricing unwillingness or inability to pay the price requested by the legitimate sellers

Unavailability no legitimate sellers providing the product in the country of the end-user: not yet launched there, already withdrawn from sales, never to be sold there, geographical restrictions ononline distributionand international shipping

Usefulness the legitimate product comes with various means (DRM,region lock,DVD region code,Blu-ray region code) of restricting legitimate use (backups, usage on devices of different vendors, offline usage) or comes with annoying non-skippable advertisements and anti-piracy disclaimers, which are removed in the pirated product making it more desirable for the end-user

Shopping experience no legitimate sellers providing the product with the required quality throughonline distributionand through a shopping system with the required level of user-friendliness

Anonymity - Downloading works does not require identification whereas downloads directly from the website of the copyright owner often require a valid email address and/ or other credentials

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REMEDIES

CIVIL

A. Injunction

B. Damages or Accounts of Profit.

C. Delivery of Infringing copies and damages

for conversion.

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CRIMINAL

Imprisonment of Accused.

B. Imposition of fine or both.

C. Seizure of Infringing copies and delivery-up of infringing copies.

ACTS NOT AMOUNTING TO INFRINGEMENT - FAIR USE

a fair deal for research, study, criticism, review and news reporting, as well as use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work for the purpose of research or private study, for criticism or review, for reporting current events, in connection with judicial proceeding, performance by an amateur club or society if the performance is given to a non-paying audience, and the making of sound recordings of literary, dramatic or musical works under certain conditions.

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THE FOUR FACTORS CONTRIBUTING FAIR USE

Character of the Use Nature of the Material to be Copied Amount and Importance of the Part Copied Effect on Market for Permissions

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SCOPE OF FAIR USE

Making copies of copyrighted works Making derivative works (for example, digitizing charts, graphs, illustrations, slides) Distributing works, including electronic distribution Displaying and performing works publicly

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Delhi HC's Ruling on the 'Guiding Principle' of Public Domain & Fair Use

In this case, titledSyndicate of the Press of the University of Cambridge (Appellants) v. B.D. Bhandari & Ors.(Respondents), The Appellants had alleged that the Respondents were publishing and selling guidebooks that contained illegal and unauthorized reproduction of the grammar exercises and keys from one of the Appellants leading publications This publication, titled Advance English Grammar, was also followed in Guru Nanak Dev University, Amritsar However, a Single Judge Bench of Delhi High Court had dismissed this allegation, holding that there was no originality or invention displayed in composing grammar sentences or exercises and hence the Appellants work did not constitute original literary, dramatic, or artistic works and hence the Appeal.The Appeal bench affirmed the Single Judges decision that the Respondents book cannot be considered to be infringing the copyright of the Appellant and dismissed the appeal on the following grounds :that the guidebook was held to be containing sufficient additional material apart from the Appellants work; there were also other differences in terms of pricing and the nature of the customers likely to buy these two different books in terms of literary sophistication.

Contd.

the Respondent claimed his book to be the same as the Appellants. Besides, an overall comparison of the two books would, according to the Court, reveal sufficient differences as not to consider one to be plagiarized from or infringing the copyright of the other.

OTHER COMMON OFFENCES

Plagiarism

Complete entire copying

Copy & paste Internet and electronic journals

Word Switch- copy the whole sentence and change a few words

Self no reference to your own prior work re-used in an assignment

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Major Amendments in the
1957 Copyright Act

PLAGIARISM

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COPYRIGHT PIRACY

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PIRACY:

Cinematograph FilmSound RecordingComputer SoftwareLiterary WorksPerformers

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LEGAL REPLY TO PIRACY

Section 64 of the Indian Copyright Act

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U/S 64of the Copyright Act, any police officer, not below the rank of a sub - inspector, may if he is satisfied that an offence in respect of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce them before a Magistrate as soon as practicable.

U/S 66of the Copyright Act, The Court trying any offence, may, whether the alleged offender is convicted or not, order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies be delivered up to the owner of copyright.

THE JOHN DOE ORDER

Delhi High Court granted Reliance Entertainment a 'John Doe Order' to prevent the illegal broadcast or streaming of its upcoming film, 'Bodyguard', Order restrains websites, cable operators and Internet Service Providers (ISPs) and others from infringing or violating Reliance's copyright by illegally showing the movie Order gives protection to the intellectual property owner, Reliance Entertainment, from copyright violation by prospective anonymous offenders. Enables an IP owner to serve the notice and take action at the same time against anyone who is found to indulge into infringing the copyright of the movie The name 'John Doe' is used as a placeholder in a legal action or case for any person whose true identity is unknown- in this instance, a potential pirate interested in illegally downloading or sharing prints of the film for which the order has been obtained Similar order was granted to the producers of the movie Singham, who claim that it helped curb piracy by 33%

RELATED RIGHTS:

Performers Producers of PhonogramsBroadcasting organizations

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Pro-open culture organization

Free Software Foundation(FSF)Creative Commons(CC)

Free Software Foundation

non-profit organizationfounded byRichard Stallmanpromotes the universal freedom to create, distribute and modifycomputer softwaresoftware being distributed undercopyleft("share alike") termssuch as with its ownGNU General Public License

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CREATIVE COMMONS

A nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.Their free, easy-to-usecopyright licenses provide a simple, standardized way to give the public permission to share and use their creative work on conditions set out by the Owners of the workCC licenses let easily change the copyright terms from the default of all rights reserved to some rights reserved.Creative Commons licenses are not an alternative to copyright.They work alongside copyrightand enable the Copyright Owner to modify the copyright terms to best suit their needs.

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ACTIVITIES

released several copyright licenses known as Creative Common Licenseslicenses allow creators to easily communicate which rights they reserve, and which rights they waive for the benefit of other creators

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AIM

enable copyright holders to grant some or all of their rights to the public Retaining others through a variety of licensing and contract schemes dedicating to the public domain or open content licensing terms To avoid the problems current copyright laws create for the sharing of information.

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Creative Commons Licensing Success Stories: Pratham Books

Pratham Books, a non-profit childrens book publishing house Persistent campaigns for openness and unrestricted access to content suitable for childrens books, by advocating the use of Creative Commons licenses Pratham Books began with aCC Attribution-Non commercial-Share Alike2.5 India license Over the years, moved towards the more openCC BYandCC BY-SAlicenses former license prevents the content from being used for commercial purposes, the CC BY and CC BY-SA have no such restrictions the use of the Creative Commons licenses has allowed Pratham Books to realise most of its objectives the growing community of participants who are willing to collaborate and embrace the philosophy of openness severely undermining the hitherto unchallenged belief that the traditional copyright model that involves frequent negotiations and high transaction costsEncouraging derivative works being produced in the nature of iPad and iPhone applications, new books with colorful illustrations and books specifically designed for the print impaired Confirms the view and belief that certainly this license can be considered a viable alternative in the publishing industry

COPYRIGHT SOCIETIES

Collective administration of copyright by societies is a concept where management and protection of copyright in works are undertook by a society of owners of such works

FUNCTIONS OF A SOCIETY

Conditions subject to which a copyright society may issue licences, collect fees anddistribute such feesAdministration of rights of owner by copyright society Payment of remuneration by copyright society

(1) A copyright society may issue licences and collect fees in accordance with its

Scheme of Tariff in relation to only such works as it has been authorised to

administer in writing by the owners of rights and for the period for which it has

been so authorised.

(2) The distribution of fees collected shall be subject to a deduction not

exceeding fifteen per cent of the collection on account of administrative expenses

incurred by the copyright society

(1) (a) a copyright society may accept from an owner of rights exclusive

authorisation to administer any right in any work by issue of licences or collection

of licence fees or both; and

(b) an owner of rights shall have the right to withdraw such authorisation without

prejudice to the rights of the copyright society under any contract.

(2) It shall be competent for a copyright society to enter into agreement with any

foreign society or organisation administering rights corresponding to rights under

this Act, to entrust to such foreign society or organisation the administration in

any foreign country of rights administered by the said copyright society in India,

or for administering in India the rights administered in a foreign country by such

foreign society or organisation:

Provided that no such society or organisation shall permit any discrimination in

regard to the terms of licence or the distribution of fees collected between rights

in Indian and other works.

(1) If the Central Government is of the opinion that a copyright society for a class

of work is generally administering the rights of the owners of rights in such work

throughout India, it shall appoint that society for the purpose of this section. (2)

The copyright society shall, subject to such rules as may be made in this behalf,

frame a scheme for determining the quantum of remuneration payable to

individual copyright owners having regard to the number of copies of the work in

circulation:

Provided that such scheme shall restrict payment to the owners of rights whose

works have attained a level of circulation which the copyright society considers

reasonable

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REGISTERED COPYRIGHT SOCIETIES IN INDIA-

Society for Copyright Regulations of Indian Producers of Films & Television (SCRIPT) for cinematography filmsIndian Performing Rights Society Limited (IPRS) for musical works Phonographic Performance Limited (PPL) for sound recordings. IRRO (The Indian Reprographic Rights Organisation)

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IRRO

issue or grant Licences, in respect of any Literary Work in which copyright subsists, for reproduction (with Limitations), on behalf of Rightsholders i.e. Owner of Copyright of any Literary Work i.e. Authors, Publishers, etc.License is mandatory for All Government as well as Private institutions/ organizations, Companies, Educational Institutions, Libraries, Photocopy Shops and others who do not come under fair uses of the Copyright Act, 1957.

RESTRICTIONS ON PHOTOCOPYING, SCANNING AND USE OF DIGITAL COPIES (i.e. Limitations of IRRO License)

The licensee must own an original and/or copyright fee-paid of any Licensed Material it copies or scans under the terms and conditions of the license.Licensee can make no more than 20 copies and not copy more than 10% or 1 chapter of any publication per year whichever is the greater.This license does not authorize any copying, dissemination, publication, communication or making available to the public, selling repackaging or distribution, in any form, of Digital Copies beyond the terms contained herein.Digital Copies may not be placed on the publicly accessible World Wide Web or be linked to either directly or indirectly by hypertext links (or the like) to any external or third party website.Licensed copies may not be made or used for the delivery of education or training of any third parties of the licensee but may be made and used for the training of the authorized persons provided that the licensee shall not receive as consideration or any other form of remuneration.The licensee shall not edit, manipulate, add or delete from Digital Copies nor shall it authorize to do such act.Where any work (including artistic work) appearing within Digital Material or Material Licensed for Scanning incorporates, or has adjacent to it, the identity of the author or creator of the work, not Digital Copies shall be made unless the copies incorporates the identity of such author or creator.