COPYRIGHT
Copyright is an exclusive right to do
or to authorize others to do some acts with respect to a work created by
a person. The work may be literary, dramatic, musical, artistic, video,
computer programs, databases etc. Though any list, which tries to
include all the works, that are subject matter of protection under the
copyright may prove insufficient.
The BERNE CONVENTION (1886),
which is perhaps the oldest convention to govern copyright says as
following:
"the expression 'literary and artistic
works' shall include every production in the literary, scientific and
artistic domain, whatever may be the mode or form of its expression,
such as books, pamphlets and other writings, lectures, addresses,
sermons and other works of the same nature, dramatic or dramatico
musical works; choreographic works and entertainments in dumb show;
musical compositions with or without words; cinematographic works to
which are assimilated works expressed by a process analogous to
cinematography; works of drawing, painting, architecture, sculpture,
engraving and lithography; photographic works, to which are assimilated
works expressed by a process analogous to photography; works of applied
art; illustrations , maps, plans, sketches and three-dimensional works
relative to science or architecture,. Translations, adaptations,
arrangements of music and other alterations of a literary or artistic
work shall be protected as original works without prejudice to the
copyright in the original work. Collections of literary or
artistic works such as encyclopedias and anthologies which, by reason of
the selection and arrangement of their contents, constitute intellectual
creations shall be protected as such, without prejudice to the copyright
in each of the works forming part of such collections."
REQUIREMENT OF
COPYRIGHT
The requirements for getting a
copyright are not very strict and complex. The object of copyright
law is to protect the author of the work from unlawful and unscrupulous
persons who may exploit the copyrighted work by reproducing it.
Copyright has assumed importance today. Earlier the commercial use
was not intended but fame and personal satisfaction was paramount
objective. Son in order to regulate the rights, duration,
liabilities of a copyright holder a statute was enacted in India called
THE COPYRIGHT ACT, 1957. This act spells out the process to
register a copyright, it has a Registrar which accepts applications and
copy of the work for record, issues certificates. The act also spells
the subject matter of copyright, Term of copyright, Authors and Owners
of copyright, Rights conferred by copyright, How to assign, transfer and
relinquish a copyright, How to license, what is Infringement of
copyright, what are remedies against an Infringement of a copyright,
International copyright, Rights of Boardcasting Organisations and
Performance, Registration of copyright, offences, Appeals
etc.
The first and the foremost
requirement is originality i.e. it should not be derived from another
work. As the film director of Bollywood say "inspired" by a
Hollywood film. Originality should not be confused with
novelty. A work may be original even though it resembles any other
work. Here important point to be noted is that there is no
copyright of an idea out on expression. For example I have an idea
of a seashore with ship and sun set now this is an idea and this is not
protected but the moment I draw a picture on a paper or with help of
computer or write a poem on it, that very moment I acquire a
copyright. Originality means without substantial similarity.
The second requirement is that it should be in some tangible form and
attached to any medium. That medium can be paper, CD, magnetic
tape, plastic or even rock. To get a copyright one has to apply
skill, labour human or other capital judgement, compilation, collection
etc. The work may appear foolish, inaccurate or ridiculous, but
this is not a ground for non-grant of copyright. For example if I
write a song or a poem which may sound distasteful to audience, but
still I can get copyright provided I have applied some skill, labour,
human capital or qualities, judgement etc.
The third requirement is that
the work, which is expressed in any tangible medium will be such as it
can be perceived, reproduced or communicated later on, either as such or
with help of any medium. Like a software that in attached to an
electronic medium or web-site on a server is capable of perceived,
reproduced and communicated and it is of permanent nature. Here
the permanent nature is in conjunction with the intention of the author
to save his expression. So to summarize the requirements of
copyright one has to look for originality requirements in terms of
"independent creation" with some element of "creativity".
So if two authors write a story,
which could resemble similar, yet without having read others work would
be called original. It is said that calculus a branch of
mathematics was developed by NEWTON in England and LEIBIZ in Germany
both did it independently and thus both are given credit for their
contribution.
Copyright is not granted to
words or phrases like names, titles, abbreviations, familiar shapes,
symbols and designs, slight variation of ornamentation and arrangement,
lettering, colouring, contents etc.
In BAKER Vs SELDEN 101 U.S.
99 A Vs Court in 1879 said – "Where the truths of a science or the
methods of an art are the common property of the whole world, any author
has the right to express the one, or explain and use the other, in his
own way". In this case the author had developed a novel way
book. Keeping system in a condensed form by arranging various
headings, lines and rules. He had copyrighted the same the court
revoked the copyright and also highlighted the difference between
copyright and patents.
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How to get a
Copyright:
The procedure of
obtaining a copyright is very simple the author of literary, dramatic
musical or artistic work as the case may be, is required to fill Form
IV ( Download: PDF DOC
) under the Rule 16 of the COPYRIGHT RULES
1958.
The application has to be
addressed to the Registrar of Copyrights, Copyright Office, which is
situated at New Delhi.
Forms starts with Para 2 of the
Form IV which requires the author to send pre-paid registered
post copies of Form IV and statement of particulars to "persons
concerned" with the work sought to be registered with an objective of
getting NO OBJECTION CERTIFICATE from them addressed to the
Registrar.
This is done with a view to
eliminate the possibility of any feature disputes, which may of also
cover the Registrar himself. Name and address of the parties and date of
dispatch should be entered in this para. The No objection
Certificate should reach the Registrar of Copyright with 45 days of date
of Application of Copyright. And if the Registrar receives any
objection or he is not satisfied about the correctness of the
particulars given in the application, he may conduct an enquiry in the
matter to find the correct position.
The prescribed fee should be
send along with the application in form of Bank Draft or Postal
Order. An address for communication should be written in para
4. The declaration should be signed by the applicant to the
effect that no other person other than those who are send notice in para
2 have claim or interest or dispute to the copyright so claimed.
List of enclosures should also be mentioned.
Then one has to file a
STATEMENT OF PARTICULARS in triplicate Para 1 of the SOP has to
be left blank as it is for the purpose of Copyright Office. Para 2
requires the Name, Address and nationality of the Applicant.
Para 3 requires the applicant’s
interest in the work whether he is author, publisher, licensee or
assigner.
Para4 one has to define whether
the work is Literary, dramatic, etc. Literary in case of Computer
program.
Para 5 Title of the
work.
Para 6 Language of the work, if
the work is in more than one language then all languages should be
written.
Para 7 information regarding
author and if the author has died.
Para 8 if the work is published
or unpublished.
Para 9 applicable if the work is
published simultaneously.
Para 10 Changes in information.
Para 11 if rights are assigned to
various persons then information regarding extend of rights e.g issuing
copies, adaptations, etc.
Para 12 if there are any
assigners or licensors then their names and addresses in
copyright.
Para 13 Applicable to artistic
works.
Para 14 is important for the
Computer Program description of the object, use and functionality of the
Software.
STATEMENT OF FURTHER
PARTICULARS it also has to be send along with the form in
triplicate.
Para1 requires information about
whether the work registered is original, translation, adaptation, etc.
Para 2 If the work is translated
or adapted the information regarding original authors. Para 3 is same as that of Statement of
Particulars.
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IMPORTANCE OF
REGISTRATION OF COPYRIGHT
Though the law does not make every work to be registered to by
copyright. The author of a work gets copyright the moment he
creates the work. Section 44 of the Copyright Act, 1957 clearly
states - "There shall be
kept at the copyright office a Register in prescribed form in which MAY
be entered the names or titles of works and the names and addresses of
authors, publishers and owners of copyright and such other particulars
as may be prescribed".
The word "MAY" appearing clearly
signifies that it is totally on the discretion of the author whether or
not to register his work?. So the question arises why to register
your work?. But nevertheless it is strongly suggested to get
copyright of your work for the simple reason that the registration of
copyright gives you a documentary evidence issued by Government of
India. It gives a presumption that the person is the author of the
work. It is admissible as evidence in all courts without further
proof or production of originals, in event of any person using work
illegally against him in court of law. It is useful to claim
damages and further prevent or injunct him from further reproducing the
work. In case of non registration one has to prove that he is the
author of the work, which may be a difficult task. So it will be
prudent to register you work under Copyright Act.
RIGHTS OF A COPYRIGHT
HOLDER : Rights are very important to be decided once case of
infringement, injunction or damages arise. Once a person acquire a
copyright he also acquires certain rights and breach of any of them may
constitute an infringement and entitle the copyright holder of
damages. To start with copyright is not a positive right but
negative one i.e. the copyright holder can stop others from exploiting
his work without his consent. These rights are :-
1. MORAL RIGHT : These rights enable the
author whether to publish, when to publish, in what form etc. He
has a moral right to be associated with his work. Another way to
exercise his moral right is to prevent any alterations, changes in his
work to distort his work or image or honour. These right remains
even after transfer of his work till copyright
subsists.
2. ECONOMIC RIGHT : These right are associated
with monetary benefits that may arise by using Sec 14 (a)
& (b) deal
with exclusive rights to do or authorise doing of certain acts.
These acts may be as follows:-
i). to reproduce the work in any material form and store it in any
medium;
ii). to issue
copies of the work to public;
iii).
to perform or communicate his work to public;
iv).
make any film or sound recording;
v).
to make any translation of the work;
vi). to make any adaptation of the
work;
vii). to do, in relation to a translation or
adoption with respect to acts specified above.
b) In
case of computer programme there are two more additional rights to the
above-mentioned rights. The right to sell or give on commercial
rental or offer for sale for commercial rental any copy of the computer
programme provided that commercial rental does not apply in respect of
computer programmes which by itself is not the essential subject of the
rental.
Reproducing the work is given
paramount importance it includes the right to fix the work in any
tangible medium it may be electronic medium. Reproduction need not
mean exact line-by-line reproduction but when there is substantial
reproduction it will constitute infringement. Because the right of
a copyright holder is to prevent others from not only substantial
reproduction but exact reproduction as well.
Publication of work means to
communicate to the public. This can be by printing, sending
e-mail, web publishing, etc. The author also has right to
translate his work from one language to another language. Author
also has right to adopt his work in any other mode of expression.
A copyright holder can Assign, Transmit or even relinquish his
copyright.
Section 18 when a copyright
holder decides that somebody else can exploit commercially more
effectively he can assign or transfer his rights to him for
consideration. Assignment is in form of agreement which has no
special format it is in writing describing the terms and conditions
decided mutually between the author and assignee. The assignment
can be in part or
full.
Section 19 makes it mandatory for all
assignments to be in writing with duration, territorial jurisdiction,
nature of rights singed by assigner and assignee. Any disputes
between the assignor or assignee shall be decided by the COPYRIGHT BOARD
established under the Act. The assignment agreement should contain
the work sought to be assigned, the extent of right, duration,
territory, amount of consideration or royally and
termination.
LICENSE : The
difference between license and assignment is that when the rights are
assigned the assignee is treated as owner of the copyright.
Whereas in License the licensee acts strictly according to terms and
conditions of licenses and after expiry of license term. The
license is to be submitted with copyright office under form IIA
prescribed under Rule 11A of the COPYRIGHT RULES, 1956.
The license agreement should be
definite with proper identified work, duration, rights licensed,
territorial extend, consideration, conditions for revision, extension
etc.
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INFRINGEMENT : Whenever
any person makes breach of any right of a copyright holder he is said to
have infringed the copyright. Section 7 (m) of the Act defines
"infringing copy" a reproduction of the work or importation thereof in
contravention of the work.
Section 51 defines when
infringement takes place. A work is deemed to be infringed when
any person without license or in contravention of license or assignment
does any act, which is copyright. Even if any person is
permitting any other person to allow producing infringing copies from
his place for profit will also be said to be infringed the right of
copyright holder. Sale, rental, hires, distribution, exhibition
and importation of infringing copies of copyrighted work shall also be
called as infringement.
For a person to be held liable for
infringement, if he reproduces work in any form, publication of the
work, communication of work by any means, performance of work in public,
adaptations, translations of the work exactly or substantially will
constitute infringement. Casual, subconscious or indirect copying
shall not constitute infringement.
In case of
computer programmes Section 52(1) (aa) of the COPYRIGHT ACT 1957 clearly
says if copy of programme is adapted to utilize the programme for
its object or to make back-up copies of programme or to enable inter
operability or to observe or test functioning of the computer programme
in order to determine underlying principle or idea shall not constitute
infringement.
Then Section 52(1) further provides
for usage of copyrighted work for research or review. What amounts
infringement might depend upon circumstances of a case? Learned
Author COPINGER in his famous book on COPYRIGHT in 12th
Edition says, “In any case of infringement the plaintiff (or copyright
holder) has to establish not only that the work in respect of which
complaint is made in fact so nearly resembles his as to be capable of
being an infringement, but also that it has in fact been produced by the
use of those features of his work which by reason of the knowledge,
skill and labour employed in their production constitute an original
copyright work”. It must be provided by copyright holder the
ownership of the copyright and copying of constituent elements of the
work that is original.
DURATION OF THE COPYRIGHT
:- The copyright subsists in the work plus 60 years after his
death. After that work becomes part of public domain.
COPYRIGHT NOTICE:-
Every work which is copyrighted should have a notice of copyright
denoting that the work is protected under the Act. It should have
letter “C” in circle © with year of publication and name of the
author.
REMEDIES OF
COPYRIGHT INFRINGEMENT:-
The basic objective of
copyright is to exclude others from exploiting work commercially without
consent or license from author. There are number of remedies
available to a copyright holder in case of breach of his
copyright. There are basically three types of
remedies.
1. BEFORE CIVIL
COURTS:-
A
copyright holder may move a Civil Court to grant injunction against such
person, claim damages and accounts.
2. CRIMINAL
COURTS:- To get the
infringer imprisoned and the infringing copies seized. Besides one
can get ANTON PILLERorder from court, which means that court grants an
ex-parte order if it feels that the case is balanced in favour of
copyright holder, damage otherwise cause could be great, there should be
clear evidence to show the presence of infringing copies in the premises
of infringer, having knowledge he could be liable for imprisonment
ranging 6 months, 3 years and fine of Rs.50,000/- to Rs. 2 lakhs.
3. BEFORE
REGISTRAR:- The
copyright holder may also request the Registrar of copyright to stop
importing infringing copies and confiscation. And also for delivery of confiscated copies. TOP
COPYRIGHT LAW
IN ERA OF COMPUTERS AND ELECTRONIC MEDIUM:-
We have noticed and experienced the
rapid changes that have been brought about by technological advancement.
Computers, CDs, Internet are some modes that have virtually changed our
world and brought about better and improved quality of life. These
technologies have provided a better, fast and cheap way to access and
transfer information. Lot of works which are subject matter of
copyright are being disseminated through this medium. A growing
number of users which is triggered by lowering of prices and superior
technology, will encourage the copyright holders to use this effective
medium to exercise their rights. This rapid advancement of which
virtually no one is untouched raises important questions of law.
Whether the decades old copyright law will be able withstand this
technological onslaughts? How can web-sites their layouts, E-Books,
softwares, Databases etc. be protected under the law remains the moot
question. To make an enquiry to examine the implications of
computer and other information communication technologies into the
existing copyright law or modify existing one or go for entirely new
law? US congress in 1976 created the NATIONAL COMMISSION ON NEW
TECHNOLOGICAL USES OF COPYRIGHTED WORKS (CONTU) for
advise.
The report
recommended treating computer programmes as a form of literary work,
assimilating databases, compilations etc. under existing copyright
principles, and abjuring special treatment of computer generated works
because no insurmountable problems had become apparent or were
foreseeable. Though growth of cut throat world wide competition, high
economic stakes, huge investment in Research and Development, judicial
decisions have forced the Government to offer patent protection for
computer software.
Recently
India has also amended its PATENT ACT, 1970 by PATENT(AMENDMENT) ACT,
2002 to offer Patent protection for computer software. To answer
the question as to how law can protect computer generated work under
copyright law one has to understand the meaning and nature of computer
generated works. Computer generated work represents Information
processing, which covers every aspect of the art or science of
processing data to produce information. This also include computer
programmes, software, data, information, databases compilations, web
pages and digital documents. Computer programme has been defined
in Sec 2 (ffc) in the Copyright Act, 1957 as a set of instructions
expressed in words, codes, schemes or in any other form, including a
machine readable medium, capable of causing a computer to perform a
particular task or achieve a particular results.
A computer
program in order to be registered as literary work under Copyright Act,
it has to be original like any other work; Originality in computer
program means that the computer programmer has himself written the
program without copying and his work involves his human skill,
observation and judgement. Very small programs which are
insignificant cannot be published. The protection will also depend upon
the programming language used and the base software upon which the work
is based, shall also be taken in to account.
Suppose you
want to protect your program which is run on some other proprietary
software. Then it has to be seen that the executable files can run
independent of the base program or
not?.
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In a case of
Cantor Fitzgerald International Vs Tradition (UK)
Ltd. The defendants admitted that 2952 lines of the source
code from total of 77,000/- lines were copied nevertheless most of the
program modules were individually complied (from source to object code)
and linked together into a small number of programs, each of which could
have been complied from a single source file.
The judge also
accepted that overall structure of a computer system or program could be
protected in its own right if it is result of sufficient skill, labour
and judgment. The appeal was allowed partly.
COMPILATIONS:-
Compilations are collection of various
programs to make a work. There can be numerous computer program
though having copyright but their compilation would also be eligible for
additional copyright. It is important to note that idea,
principles, logic, algorithms, programming languages are not protected
under the Copyright Act.
DATABASES:- An electronic database is collection
of data or information stored on computer readable media. The
information can be of any type names, addresses, survey findings
etc.
The collection is
arranged in a way or sorted under heads to give its user an efficient
way to extract information he need. Sometimes the copyright in
databases as in compilation protection is not only given to individual
items but work as whole.
In an interesting
case of US Supreme Court in Feist Publications Inc. Vs
Rural Telephone Service, it was held that telephone
directories are not protected as copyright as it is collection of names
arranged in alphabetical order. But Yellow Pages of directory
involving skill and judgement is liable to be
protected.
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Databases since
now have assumed significance seeking the economic advantage large
protection is being offered to the database
protection.
THE DIRECTIVE
ON LEGAL PROTECTION OF DATABASES:-
issued by EUROPEAN UNION
describes databases as vital tool in the development of an information
market within the community. The definition of database is not
given under Indian Copyright Act but in UK the copyright, Designs and
Patent Act, 1988 defines database as "a collection of independent
works, data or other materials which –
a) are arranged in a systematical or
methodical way, and
b)
are individually accessible by
electronic or other means".
Since the wide use
and awareness in India is increasing so we should realize and protect
the work so that we gain maximum commercial
use.
