Cpoyright FAQ

“An artistic, literary or musical work is the brainchild of the author, the fruit of his labour and so, considered to be his property. So highly is it prized by all civilized nations that nations that it is thought worthy of protection by national laws and international conventions.”

Copyright gives the author of an original work exclusive right for a certain time period in relation to that work, including its publication, distribution and adaptation, after which time the work is said to enter the public domain. Copyright applies to any expressible form of an idea or information that is substantive and discrete and fixed in a medium. Some jurisdictions also recognize "moral rights" of the creator of a work, such as the right to be credited for the work. Copyright is described under the umbrella term intellectual property along with patents and trademarks.

Copyright has been internationally standardized, lasting between fifty to a hundred years from the author's death, or a shorter period for anonymous or corporate authorship. Some jurisdictions have required formalities to establishing copyright, but most recognize copyright in any completed work, without formal registration. Generally, copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.

Copyright, is a bundle of rights, which grants protection to the unique expression of ideas. Ideas per se cannot be protected; it is the expression of ideas in a material medium that is the subject matter of copyright protection. Copyright is a negative right and the owner of a copyright gets the right to prevent others from copying his work without his consent towards a commercial end. However, at the same time it gives to the author an exclusive right for the commercial exploitation of his work.

In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author.

In the case of a film, the principal director and the film producer are joint authors and first owners of the economic rights and similar provisions as referred to above apply where the director is employed.

In the case of a sound recording the record producer is the author and first owner of copyright; in the case of a broadcast, the broadcaster; and in case of a published edition, the publisher.

Copyright is, however, a form of property which, like physical property, can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the first owner. In contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic works and film directors remain with the author or director or pass to his or her heirs on death. Copyright in material produced by a Government department belongs to the Government of India.

Copyright owners generally have the right to authorize or prohibit any of the following things in relation to their works:

• Copying of the work in any way eg. Photocopying / reproducing a printed page by handwriting, typing or scanning into a computer / taping live or recorded music.
• Issuing copies of the work to the public.
• Public delivery of lectures or speeches etc.
• Broadcasting of the work, audio / video or including it in a cable programme.
• Making an adaptation of the work such as by translating a literary or dramatic work, transcribing a musical work and converting a computer program into a different computer language or code.
• Copyright is infringed when any of the above acts are done without authorization, whether directly or indirectly and whether the whole or a substantial part of a work, unless what is done falls within the scope of exceptions to copyright permitting certain minor uses of material.

There are a number of exceptions to copyright that allow limited use of copyright works without the permission of the copyright owner. For example, limited use of works may be possible for research and private study, criticism or review, reporting current events, judicial proceedings, teaching in schools and other educational establishments and not for profit playing of sound recordings.

But if you are copying large amounts of material and/or making multiple copies then you may still need permission. Also where a copyright exception covers publication of excerpts from a copyright work, it is generally necessary to include an acknowledgement. Sometimes more than one exception may apply to the use you are thinking of.

Exceptions to copyright do not generally give you rights to use copyright material; they just state that certain activities do not infringe copyright. So it is possible that an exception could be overridden by a contract you have signed limiting your ability to do things that would otherwise fall within the scope of an exception.

It is important to remember that just buying or owning the original or a copy of a copyright work does not give you permission to use it the way you wish. For example, buying a copy of a book, CD, video, computer program etc does not necessarily give you the right to make copies (even for private use), play or show them in public. Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work. So, permission is generally needed. Also, use going beyond an agreed licence will require further permission.

• Literary, dramatic and musical work.
• Artisitic work.
• Cinematographic film includes sound track and video film.
• Computer programmes/software.

The rights of copyright holder are

• 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 circulation.
• to perform the work in public, or communicate it to the public.
• to make any cinematograph film or sound recording in respect of the work
• to make any translation of the work vi) to make any adaptation of the work

In case of computer programme the rights also includes -

• to sell or give on hire, or offer for sale or hire any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions.

Copyright in a work comes into existence automatically when the work is created.

• If published within the life time of the author of a literary work, the term is for the life time of the author plus 60 years.
• For cinematographic films, records, photographs, posthumous publication, anonymous publication, works of government and international agencies, the term is 60 years from the beginning, of the calendar year following the year in which the work was published.
• For broadcasting, the term is 25 years from the beginning of the calendar year following the year, in which the broadcast was made.

Yes, in India a claim to copyright can be registered with filing an application to the registrar of copyright along with prescribed fees.

In India, the first owner of copyright in a work is the author. If the work is done in course of employment then employee is the first owner unless there is an agreement to the contrary. Where the work includes material from different owners, or for example is a translation of an original work, several owners may each have copyright in the final work.

When a work is published by authority of the copyright owner, a notice of, copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works to which India is a signatory use of copyright notice is optional. It is however, a good idea to incorporate a copyright notice.

Copyright in work is considered to be infringed in the following circumstances- A. When any person without a license granted by the owner of the copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright Act - - does anything, the exclusive right to do which is, by Copyright Act, conferred upon the owner of copyright, or - permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the copyright in the work. B. When any person - - makes for sale or hire, or sells or lets for hire, or by way of trade displays or - offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or - by way of trade exhibits in public, any infringing copies of the work. It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.

Unlike some other intellectual property rights, copyright is merely a right to prevent unauthorized copying of an original work. The burden of proof in litigation is on the copyright owner to show that copyright exists in the work in question and that the alleged infringer (directly or indirectly) copied the work. If this chain of copying cannot be shown or does not exist, then there is no infringement. If there has been copyright infringement, then court action may be necessary to stop it continuing, and you may be able to claim financial compensation for any acts of infringement.

Copyright notice consists of the following: - The symbol c (letter c in a circle) or the word copyright The year of first publication, and - The copyright owners name. An example of notice: © 1999 indlaw. The copyright notice should be placed on copies in such a way as to give reasonable notice of the claimant of copyright.

Assignment of copyright is not valid till it is in writing, signed by the assignee or by his authorized agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment deed must also specify the royalty payable, if any. There is no mandatory provision to register a deed of assignment of copyright. However, these details need to be recorded while registering copyright at serial 11 of Statement of Particulars.

Courts are empowered to grant the following relief in case of infringement of copyright: - Temporary and permanent injunctions - Impounding and destruction of all infringing copies - Actual monetary damages plus the infringer’s profits - Statutory damages - Court costs and reasonable attorneys’ fees. The Court trying any offence, under Section 66 of the Copyright Act 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. In addition to civil remedy, the Copyright Act enables the owner of a copyright to take criminal proceedings against the infringer. Knowledge/mensrea of the infringer to commit the infringement should necessarily be proved for this purpose. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum period of three years and a fine of Rs 50,000 to Rs 2 lakhs.

The trade mark of a product or service can be synonymous with the branding and image of a company and can become an asset with monetary value that could increase. If you do not apply for protection others may benefit from your investments. The only way of obtaining the full right over a trade mark is by registering it.

For effective implementation of Copyright Act, the response of enforcement authorities to cases of infringement needs to be swift. Under Section 64 of the Copyright Act, 1957, 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.

The registration of a trademark give exclusive rights to use the trademark in relation to the goods or services in respect of which the trademark is registered and it offers better legal protection for action for infringement

Copyright applies to both published and unpublished works. Further, it is not necessary under the Indian Copyright Act to register with the Copyright Office to get copyright protection. Registration of the work is however a highly recommended because such registration is helpful in an infringement suit. As per the Copyright Act, the Register of copyrights (where the details of the work are entered on registration) is prima facie evidence of the particulars entered therein. The documents purporting to be copies of any entries therein, or extracts from the Register which are certified by the Registrar of copyrights and sealed with the seal of the Copyright Office, are admissible as evidence in all courts without proof or production of the original.