Copyright India
(By Sangam Ghimire & Jyoti Pathak)
Meaning
Copyright is a right given by the law to creators of literary, dramatic,
musical and artistic works and producers of cinematograph films and sound
recordings. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights
depending on the work.
Indian work
"Indian work" means a literary, dramatic or musical work,
The author of which is a citizen of India; or
Which is first published in India; or
The author of which, in the case of an unpublished work is, at the time
of the making of the work, a citizen of India.
Descriptions of work
Artistic work - An artistic work means
A painting, a sculpture, a drawing (including a diagram, map, chart or
plan), an engraving or a photograph, whether or not any such work possesses
artistic quality;
A work of architecture; and Any other work of artistic craftsmanship.
Musical work
"Musical work" means a work consisting of music and includes
any graphical notation of such work but does not include any words or any
action intended to be sung, spoken or performed with the music. A musical work
need not be written down to enjoy copyright protection.
Sound recording
"Sound recording" means a recording of sounds from which
sounds may be produced regardless of the medium on which such recording is made
or the method by which the sounds are produced. A phonogram and a CD-ROM are
sound recordings.
Cinematograph film
"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 and
"cinematograph" shall be construed as including any work produced by
any process analogous to cinematography including video films.
Government work - "Government work" means a work
which is made or published by or under the direction or control of
¨ The government or any department of the government
¨ Any legislature in India, and
¨ Any court, tribunal or other judicial authority in India.
An author
¨ In the case of a literary or dramatic work the author, i.e., the person
who creates the work
¨ In the case of a musical work, the composer.
¨ In the case of a cinematograph film, the producer.
¨ In the case of a sound recording, the producer.
¨ In the case of a photograph, the photographer.
¨ In the case of a computer generated work, the person who causes the work
to be created.
Duration of copyright
Literary
dramatic,
musical
and
artistic
works
Photographs
|
sixty
years from the beginning of the calendar year next following the year in
which the author dies.
|
Anonymous
and pseudonymous works
Posthumous
work
Cinematograph
films
Sound
records
Government
work
Public
undertakings work
International
organisations work
|
sixty years
from the beginning of the calendar year next following the year in which the
work is first published.
|
Assignment of copyright
The author of a work is the first owner of the copyright (Section
17).However, for works made in the course of an author's employment under a
contract of service; the employer is the first owner of the copyright. The
owner of the copyright in an existing work or the prospective owner of the
copyright in a future work may assign to any person the copyright either wholly
or partially and either generally or subject to limitations and either for the
whole term of the copyright or any part thereof: Provided that in the case of
the assignment of copyright in any future work, the assignment shall take
effect only when the work comes into existence. (Section 18) Section 19 lays
down the modes of assignment- assignment can only be in writing and must
specify the work, the period of assignment and the territory. Section 19(5)
provides that if period of assignment is not specified it shall be deemed to be
5 years and section 19(6) provides that if the territorial extent of assignment
is not specified it shall be presumed to extend within India.
Judgment
In a recent judgment, a division bench of the Delhi High Court in
Pine Labs Private Limited vs. Gemalto Terminals India Limited the Court has
held that in case the duration of assignment is not specified, the duration
shall be deemed to be five years and after five years the copyright shall
revert to the author. In this case, Pine Labs had written some software for
Gemalto under a Master Service Agreement (MSA).Though in the MSA Pine Labs had
assigned the copyright in the works to Gemalto, the period of assignment was
not specified. he Court held that though Gemalto may have paid for the
software, Pine Labs, being the author was the first owner of the copyright and
after five years, the copyright reverted to Pine Labs. It made no difference
whether the MSA was treated as an assignment or an agreement to assign. Full
text of the judgment can be viewed at Pine Labs Vs Gemalto and others.
Rights of Broadcasting Organization and of
Performers
► Broadcast reproduction right
The broadcast reproduction right shall subsist until twenty-five years
from the beginning of the calendar year next following the year in which the
broadcast is made.
► Performer’s right
The performer's right shall subsist until fifty years from the beginning
of the calendar year next following the year in which the performance is made.
Performance by an amateur club or society
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
Government works
Although Government works are copyrighted, the reproduction or
publication of following works not copy protected.
Act of a Legislature:
Report of a committee, commission, council, board or other like body
appointed by the Government. Judgment or order of a court, tribunal or other
judicial authority criminal liability.
Copyright Law
Of India
copyright Act,
1957(Act No. 14 of 1957) governs the laws & applicable rules related to the
subject of copyrights in India. Copyright Law in the country was
governed by the Copyright Act of 1914, was essentially the extension of the
British Copyright Act, 1911 to India, and borrowed extensively from
the new Copyright Act of the United Kingdom of 1956. All copyright related laws are governed by the Copyright Act,
1957.The Copyright Act today is compliant with most international conventions
and treaties in the field of copyrights. India is a member of the Berne
Convention of 1886 (as modified at Paris in 1971), the Universal Copyright
Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual
Property Rights (TRIPS) Agreement of 1995.Though India is not a member of the
Rome Convention of 1961, WIPO Copyrights Treaty (WCT) and the WIPO Performances
and Phonograms Treaty (WPPT),the Copyright Act is compliant with it.
Copyright To Be Protected- Reasons:
Copyright ensures certain minimum safeguards of the rights of authors
over their creations, thereby protecting and rewarding creativity. Creativity
being the keystone of progress, no civilized society can afford to ignore the
basic requirement of encouraging the same. Economic and social development of a
society is dependent on creativity. The protection provided by copyright to the
efforts of writers, artists, designers, dramatists, musicians, architects and producers
of sound recordings, cinematograph films and computer software, creates an
atmosphere conducive to creativity, which induces them to create more and
motivates others to create.
Copyright
Prosecution Services in India
Copyright prosecution is the process of making your creative and
innovative artistically work under a protected shield. Well, in these days of
huge competition, the act of infringement is rising at the rate where this
copyright prosecution has really proved its worth while proving a sense of
opposition against any type of maltreat..
Our copyright prosecution services in India are provided for all types
of new creations and works by individuals and entities which are active in
diverse fields of business, industry, and profession, in various States and
Union Territories of all across India. The main and broad categories of works
and creations supported by us for their proper and scrupulous copyright
prosecution are - all sorts of literary works (songs, poems, novels, books,
articles, dramas, website contents, etc.); diverse musical creations under the
variety of audio and video collections; photographic and artistic works; all
types of drawings and paintings, including architectural designs and drawings;
choreographic and cinematographic creations and collections; sculptural designs
and creations; and other creativities that can be copyright. It is noteworthy
here that all copyright matters and materials are exclusive and vital
intellectual property of an individual, company, industry, or institutions,
closely connected with dignified and profitable businesses of these
establishments. Therefore, utilization of rigorous and securing copyright
prosecution services by well-informed and experienced law firms, is utmost
productive and beneficial.
Copyright Infringement -Punishable
Copyright infringement is punishable under 63 of the Copyright Act:
Offence of infringement of copyright or other rights conferred by this
Act. Any person who knowingly infringes or abets the infringement of-
(a) The copyright in a work, or
(b) any other right conferred by this Act, shall be punishable with
imprisonment for a term which shall not be less than six months but which may
extend to three years and with fine which shall not be less than fifty thousand
rupees but which may extend to two lakh rupees: Provided that the court
may, for adequate and special reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than six months or a fine of less
than fifty thousand rupees.
Explanation- Construction of a building or other structure which
infringes or which, if completed, would infringe the copyright in some other
work shall not be an offence under this section.
Rights in Copyrights on different works:
Rights in a dramatic work
¨ In the case of a dramatic work, copyright means the exclusive right
¨ To reproduce the work
¨ To communicate the work to the public or perform the work in public
¨ To issue copies of the work to the public
¨ To include the work in any cinematograph film
¨ To make any adaptation of the work
¨ To make translation of the work.
Rights in an artistic work
¨ In the case of an artistic work, copyright means the exclusive right
¨ To reproduce the work
¨ To communicate the work to the public
¨ To issue copies of the work to the public
¨ To include the work in any cinematograph film
¨ To make any adaptation of the work.
Rights in musical work
¨ In the case of a musical work, copyright means the exclusive right
¨ To reproduce the work
¨ To issue copies of the work to the public
¨ To perform the work in public
¨ To communicate the work to the public
¨ To make cinematograph film or sound recording in respect of the work
¨ To make any translation of the work
¨ To make any adaptation of the work.
Right in a cinematograph
¨ In the case of a cinematograph film, copyright means the exclusive right
¨ To make a copy of the film including a photograph of any image forming
part thereof
¨ To sell or give on hire or offer for sale or hire a copy of the film
¨ To communicate the cinematograph film to the public.
Rights in a sound recording
¨ To make any other sound recording embodying it
¨ To sell or give on hire, or offer for sale or hire, any copy of the
sound recording
¨ To communicate the sound recording to the public.
Right of reproduction
The right of reproduction commonly means that no person shall make one
or more copies of a work or of a substantial part of it in any material form
including sound and film recording without the permission of the copyright
owner. The most common kind of reproduction is printing an edition of a work.
Reproduction occurs in storing of a work in the computer memory.
REGISTRATION OF COPYRIGHT
It necessary to register a work to claim copyright. Acquisition of
copyright is automatic and it does not require any formality. However, certificate
of registration of copyright and the entries made therein serve as prima facie
evidence in a court of law with reference to dispute relating to ownership of
copyright.
Procedure for registration of a work under the
Copyright Act,1957
Copyright comes into existence as soon as a work is created and no
formality is required to be completed for acquiring copyright. However,
facilities exist for having the work registered in the Register of Copyrights
maintained in the Copyright Office of the Department of Education. The entries
made in the Register of Copyrights serve as prima-facie evidence in the court
of law. The Copyright Office has been set up to provide registration facilities
to all types of works and is headed by a Registrar of Copyrights and is located
at B.2/W.3, C.R. Barracks, Kasturba Gandhi Marg, New Delhi- 110 003, Tel: 338
4387.
The procedure for registration is as follows:
¨ Application for registration is to be made on Form IV ( Including
Statement of Particulars and Statement of Further Particulars) as prescribed in
the first schedule to the Rules ;
¨ Separate applications should be made for registration of each work;
¨ Each application should be accompanied by the requisite fee prescribed
in the second schedule to the Rules;
¨ and the applications should be signed by the applicant or the advocate
in whose favors a Vakalatnama or Power of Attorney has been executed. The Power
of Attorney signed by the party and accepted by the advocate should also be
enclosed. Each and every column of the Statement of Particulars and Statement
of Further Particulars should be replied specifically. Both published and
unpublished works can be registered. Copyright in works published before 21st
January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be
registered, provided the works still enjoy copyright. Three copies of published
work may be sent along with the application. If the work to be registered is
unpublished, a copy of the manuscript has to be sent along with the application
for affixing the stamp of the Copyright Office in proof of the work having been
registered. In case two copies of the manuscript are sent, one copy of the same
duly stamped will be returned, while the other will be retained, as far as
possible, in the Copyright Office for record and will be kept confidential. It
would also be open to the applicant to send only extracts from the unpublished
work instead of the whole manuscript and ask for the return of the extracts
after being stamped with the seal of the Copyright Office. When a work has been
registered as unpublished and subsequently it is published, the applicant may
apply for changes in particulars entered in the Register of Copyright in Form V
with prescribed fee. Application for registration of copyright along with
statement of particulars and instructions for filling up the statement of
particulars are at Appendix - I.
Requirements for Copyright
Requisites for filing a copyright application
1. Name, address and nationality of the applicant
2. Name, address and nationality of the author of the work
3. Nature of applicant’s interest in the copyright i.e. OWNER /
LICENSEE etc.
4. Title of the work
5. A declaration signed by the author (if different from the
applicant)
6. Language of the work
7. Whether the work is published or unpublished
8. If the work is published, year and country of first publication
and name, address and
nationality of the publisher
9. Year and countries of subsequent publications, if any
10. Name, address and nationality of any other person authorized to
assign or license the rights in the copyright
11. Power of attorney for the firm
12. Six hard copies of the work and three soft copies
13. (For computer programs – 3 copies of the program on CD ROMs.)
Powers of Copyright Board
The Copyright Act provides for a quasi-judicial body called the
Copyright Board consisting of a Chairman and two or more, but not exceeding
fourteen, other members for adjudicating certain kinds of copyright cases. The
Chairman of the Board is of the level of a judge of a High Court. The Board has
the power to: hear appeals against the orders of the Registrar of Copyright;
hear applications for rectification of entries in the Register of Copyrights;
adjudicate upon disputes on assignment of copyright; grant compulsory licenses
to publish or republish works (in certain circumstances); grant compulsory
license to produce and publish a translation of a literary or dramatic work in
any language after a period of seven years from the first publication of the
work; hear and decide disputes as to whether a work has been published or about
the date of publication or about the term of copyright of a work in another
country; fix rates of royalties in respect of sound recordings under the
cover-version provision; and fix the resale share right in original copies of a
painting, a sculpture or a drawing and of original manuscripts of a literary or
dramatic or musical work. The present composition of the Board is at Appendix -
III.
The Registrar Of Copyrights - Judicial Powers
The Registrar of Copyrights has the powers of a civil court when trying
a suit under the Code of Civil Procedure in respect of the following matters:
¨ namely, summoning and enforcing the attendance of any person and
examining him on oath
¨ requiring the discovery and production of any document; receiving
evidence on affidavit
¨ issuing commissions for the examination of witnesses or documents
¨ requisitioning any public record or copy thereof from any court or
office
any other matters which may be prescribed.
Benefits of Copyright
Copyright is fundamentally a private right. You the copyright owner must
decide how to make use of your copyright work and how to implement your
copyright. A copyright owner can decide whether or not there will be any use of
the copyright work falling inside the scope of the economic rights and, if so,
whether he or she will use the copyright work and/or certify one or more other
people to use the work.
A copyright owner can also advantage from copyright by selling or
agreeing a transfer of copyright to someone else. Many of the options
obtainable to a copyright owner will involve contractual agreements which may
be just as important as the rights provided by copyright law. The right
contractual agreement can minimize the odds of a dispute over use of your
copyright work. As a copyright owner, you may also like to consider the
benefits of belonging to an organization representing the copyright owners in
the area.Copyright protection provides a vital encouragement for the creation
of many intellectual works. Without copyright protection, it would be easy for
others to exploit these works without paying any royalties or enterprise and
creates a favorable climate to stimulate economic activity. Copyright
protection provides benefits in the form of economic rights which entitle the
creators to control use of their literary and artistic material in a figure of
ways such as making copies, performing in public, broadcasting, use on-line,
etc. and to obtain an appropriate financial reward. Creators can therefore be
rewarded for their creativity and investment.
Rights of an owner of a Copyright
Copyright owners have the exclusive right to either do or authorize the
doing of any of the following:
¨ To reproduce the work in any material form including the storing of it
in any medium by electronic means
¨ To issue copies of the work to the public not being copies already in
publication
¨ To perform the work in public, or communicate it to the public to make
any translation or adaptation of the work
¨ to sell or give on hire, or offer for sale or hire a copy regardless of
whether such copy has been sold or given on hire on earlier occasions.
Copyright Symbol
Copyright symbol is predominantly used in notices issued for
copyright purposes. Globally, for copyright, the symbol C is used. Copyright
basically deals with the protection of innovative works in their exact
expressions. In case this right of the actual holder is infringed, he or she
can make claims against the party infringing these rights. To symbolize that a
particular work is copyright protected, copyright symbol is used. It is written
as letter "c" within a circle. This is the most common way of depicting
copyright protection. This symbol is mentioned close to the product and this
denotes that the product is safe from any kind of plagiarism. A legal notice
can be served to the infringing party in case of violation of the rights of the
copyright holder. Also, the rights of reproducing and redistributing the
product are held by copyright owner. Authorities mention the specific manner in
which this copyright symbol must be used. It is as under :
Copyright © [COPYRIGHT HOLDER NAME] All Rights Reserved
© 2013 All Rights Reserved.
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