Copyright And Legal Prospects

Copy Right, For A Piece Of Original Work

By Sandigdha Mishra, Advocate

advocate.sandigdhamishra@gmail.com

advsandigdha@paydirtprofessionals.com

The copy right means the right provided to the authors/originators/creators of different kinds of works, as enumerated in the Copyright Act. The right of authors/originators/creators includes the right of reproducing, communicating to the public etc. The most important feature of Copyright Law is that it protects the presentation of the ideas in tangible form, and not the idea itself. It is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.

Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematography films and sound recording. For example, books, computer programs are protected under the Act as literary works.

Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.

The Copyright Act was enacted in order to encourage the originality, creativity of the writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematography films and computer software and to discourage the unlawful production thereof by any other person, without permission, consent and leave of owner of copyright.  The basic object of Copyright Act to create conducive atmosphere in order to encourage the creativity.

As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An exception to this rule is that, the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment.

BENEFIT OF COPYRIGHT:

 There are many benefit of owner/holder of a copyright. As aforementioned , the copyright provides the owner of a copyright to use the same exclusively (viz: to  reproduce, perform, record, broadcast, or translate or adapt the  works or authorize other to do  these thing for a valuable consideration) . The details of few of the benefits of the copyright in general,  have been given here in below:

 (a)   Reproducing the work

(b)    Issuing the copies of the work to the public

(c)    Performing the work in public

(d)    Communicating the work to the public.

(e)    Making the  cinematography film or sound recording in respect of the work

(f)     Making any translation or the adaptation of the work

 The copyright holder has also to be aware of its right in the copyright.  For example, one person may write a song, or sing a song, or take a photograph or prepare the CD, DVDs, software etc. The author of the same endeavors hard to create the same. Then it is natural the author has to reap the benefit of the same. The owner/author of the same may gain money by selling the same or may authorize the other to do so , in lieu of valuable consideration. Though for the copyright , registration is not mandatory, however in case a copyright is registered, then the entries of the registered copyright are deemed to be prima facie true. So it is advisable that copyright should be registered. It provides a better evidence.

Indian perspective on copyright protection:

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:

1. Economic rights of the author, and
2. Moral Rights of the author.

(A) Economic Rights:

The copyright subsists in original literary, dramatic, musical and artistic works; cinematography films and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, 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, to perform the work in public or communicating it to the public, to make any cinematography film or sound recording in respect of the work, and to make any translation or adaptation of the work.

In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematography work, and to make any adaptation of the work.

In the case of cinematography film, the author enjoys the 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, any copy of the film, and to communicate the film to the public. These rights are similarly available to the author of sound recording. In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.

(B) Moral Rights:

Section 57 of the Act defines the two basic 'moral rights of an author. These are:

1. Right of paternity, and
2. Right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honor or reputation.

The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.

Indian Judiciary Response:

The response of Indian judiciary regarding copyright protection can be grouped under the following headings:

1. In  Caterpillar Inc v Kailash Nichani, the plaintiff, a foreign company, was carrying on business in several places in India including Delhi, through its Indian distributors and collaborators. The plaintiff claimed the relief of ad-interim injunction for preventing infringement of its copyright by the defendant, though the defendant was dealing in different goods. The Delhi high Court held that it was not necessary to show that the business being carried on by the plaintiff in Delhi should necessarily be in respect of footwear and articles of clothing as well. It is sufficient if the business was being carried on by the plaintiff in Delhi and further that there was an infringement of plaintiff's copyright in respect of certain goods, which were being sold by the defendant in Delhi. The court further held that section 62 of the Copyright Act makes an obvious and significant departure from the norm that the choice of jurisdiction should primarily be governed by the convenience of the defendant. The legislature in its wisdom introduced this provision laying down absolutely opposite norm than the one set out in section 20 CPC. The purpose is to expose the transgressor with inconvenience rather than compelling the sufferer to chase after the former.
   
   
   In Lachhman Das Behari Lal v Padam Trading Co, the Delhi High Court observed that the plaintiff being a firm functioning at Delhi, the suit filed by it in the Delhi courts is maintainable and is not liable to be rejected under Order 7 Rule 11 of the CPC as prayed. The Court further observed that the plea regarding want of territorial jurisdiction is not covered by Order7 rule 11 of CPC. The court observed that even if it is held that this court has not the territorial jurisdiction, the plaint cannot be rejected. At the most it can be returned for presentation to the proper court.
   
   
   In Exphar SA and Anr v Eupharma Laboratories Ltd & Anr, the Supreme Court finally settled the position in this regard. The Court observed: Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding or where there are more than one such persons, any of them actually and voluntarily resides or carries on business or presently works for gain. It prescribes an additional ground for attracting the jurisdiction of a court over and above the normal grounds as laid down in Section 20 of the C.P.C. Even if the jurisdiction of the Court were restricted in the manner construed by the Division Bench, it is evident not only from the cause title but also from the body of the plaint that the Appellant No 2 carries on business within the jurisdiction of the Delhi High Court. The Appellant No 2 certainly a person instituting the suit. The Division Bench went beyond the express words of the statute and negatived the jurisdiction of the Court because it found that the Appellant No 2 had not claimed ownership of the copyright, infringement of which was claimed in the suit. The appellant No 2 may not be entitled to the relief claimed in the suit but that is no reason for holding that it was not a person who had instituted the suit within the meaning of Section 62(2) of the Act.

PROCEDURE FOR OBTAINING COPYRIGHT REGISTRATION IN INDIA:

 The Registration of copyright in India is regulated and controlled by the Copyright office India. In this office, a register is there in which the details of registration is entered , incorporating the  names,  titles of works, names and addresses of authors, publishers and owners of copyright.

In case, the Art Work/Label is having commercial/Trade Mark significance, then prior to filing of Copyright Application , the applicant has to take the no objection certificate from the Registrar of Copyright by filing the request on Form TM-60. Normally for other copyright, not having the Trade Mark significance, the filing of request on form TM-60 is not required.

 The author, owner or a person interest may  file the  application on Form – IV as prescribed under the copyright act along with  the necessary statement of particulars (in triplicate). The  Form – IV has to be signed only by the applicant. Copyright application can be filed in relation to the copyright work as mentioned in the copyright act, viz: the original literary, dramatic, musical and artistic works, cinematography films, and sound recordings work etc.

 

The applicant is required to file separate application for each separate art work/copyright and the has to be made before the Registrar of Copyright at the office , i.e. the Copyright Office, Department of Higher Education, Ministry of Human Resource Development, 4th Floor, Jeevan Deep Building, Parliament Street, New Delhi-110001.  The office of the copyright is constituted under the copyright act of India.  Each copyright application has to be accompanied by the fee as prescribed under the copyright act .

 THE APPLICANT FOR A COPYRIGHT REGISTRATION IS REQUIRED TO FURNISH THE FOLLOWING INFORMATION, /DOCUMENTS

 (a)        Name, address and Nationality of the Applicant.

(b)        Nature and interest of the applicant in the copyright work.

(c)        The Details and description of the copyright work.

(d)       The name and title of the copyright work.

(e)        The name, address and the nationality of the author of the Copyright, applied for.

(f)        Whether is published or that the same is an unpublished work.

(g)        In the work is published, then the year of the first publication of the copyright work.

 (h)       The specimen copy of the copyright has to be filed with the application.

The applicant also has to disclose that whether any other person is also having interest in the subject matter copyright. In case any such person is disclosed, then the Registrar of copyright is bound to issue notice to such person interest, prior to registering such art work.

In case no notice is issued to such person interested , prior to grant of copyright registration, then such copyright registration may be rectified from the registered on account of violation of Rule 16 of the copyright rule 1958.

The entries pertaining to the copyright application in the register are kept open to the public for reasonable period of time and any person may take inspection of the same.

The registrar of Copyright, after being fully satisfied with the application, may issue the registration certificate to the applicant. In case, the Registrar of copyright is having any doubt, the same may grant a hearing to the applicant and the applicant may remove those objections.

The registration certificate of the copyright, normally provides the details of owner of copyright, author of copyright, year of first publication of the art work. The entries of the registration certificates are prima facie presumed to be correct.

In case there is any wrong entry or there is any mistake in the register, then the registered copyright may be rectified/amended by the appropriate application/petition, moved for rectification of the same.

ASSIGNMENT OF COPYRIGHT

The owner of a copyright can assign its right in the Copyright in favour of any other person with due consideration. The assignment of copyright has to be in writing. The copyright law does not recognize the oral deed of assignment of copyright.

 

THE LEGAL REMEDIES AVAILABLE TO THE OWNER OF COPYRIGHT

The Owner of a copyright has two types of legal remedy available for him, in cases of infringement of copyright by the other parties;

 (a)        Civil Remedy: The author/Owner of a Copyright may sue for infringement of copyright by filing a Suit for permanent injunction , there by the owner of a copyright can obtain an interim injunction orders against the infringers. The Owner of a copyright may also get the Local Commissioner appointed and can get the infringed works of the infringers seized. The Owner/author of a copyright work may also ask for the damages, because of the loss and injury caused by then impugned activity of the infringers.

However the infringers may take this defence that at the time of infringement, the same was not  aware not aware and had no reasonable ground for believing that copyright subsisted in the work.

 (b)        Criminal Remedy: The author/owner of a Copyright can file a criminal complaint against the pirates/infringers. In criminal complaints, the search and seizure orders are issued and infringed works of the infringers/ pirates can be seized. The criminal remedy is more effective in nature as because of the same, the pirates may put behind the bars, besides seizure of the infringed works.

The punishment for the offence of  infringement of copyright, as provided under the Copyright Act  is imprisonment for six months (minimum) which may extend up to maximum for one year  with the minimum fine of Rs. 50,000/- (minimum) which may extend up to maximum for Rs. One Lakh.

 In cases of infringement of Copyright, even a police officer, not below the rank of  sub inspector, may seize the suspect products, in case the same has reasonable ground to believe that the same are infringed products. 

Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. Thus, on-line copyright issues are also adequately protected, though not in clear and express term.

To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the purposive interpretation technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case.

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