Copyright – Summary Information
We have discussed what is intellectual property as well as various types of Intellectual Property of which Copyright is one of the major one.This post covers in a summary manner information about Copyrights with references to Indian Laws provided where relevant. It does not cover all aspects ( for example infringement penalties and licensing details etc) which would have made this post even longer than it already is ! The reader is welcome to contact as required for specific assistance.
What is a Copyright
Copyright protects human intellect when expressed as literary and artistic works. For instance, writings articles, music, paintings, sculptures and computer programs and databases.
It is important to understand that the ‘idea’ is not protected. Only when such ‘idea’ finds expression (termed as ‘fixation’) in a medium so that the fixation can be perceived by ‘public’ does that fixation get protection. For instance, an ‘idea’ can be an alien invasion. Different writers may produce a myriad of different stories on this main idea. Each of such stories is copyright eligible. The synopsis of such stories, or plays built on this idea will similarly be eligible. Similarly, the Sun rises everyday. However, there are thousands of phots and paintings on showing the Sun rise, each eligible for copyright.
Expression ‘literary and artistic works’ finds elaboration in the Berne Convention ( 1886) at Article 2(1). As can be readily seen, the elaboration is quite comprehensive. Basically, production in literary, artistic and scientific domain are protected.
Further, the term ‘ such as’ used in the examples shown in the Article make clear that list is non-exhaustive. Items such as a haircut, a divorce guide, a floral decoration on a bridge, a sound and light show and even examination papers have been held to have such protections in cases decided by different courts. And , in line with technological advancements, digital articles such as computer programs and multi-media creations also may be protected by copyright.
Literary or artistic merit, or popularity of the ‘fixation’ is irrelevant for the purpose of copyright protection. Even if no one sees the fixation /work, it will get copyright protection as long as it is in an environment where there is a possibility of even one person seeing and/or hearing it. The only requirement is that the fixation should be ‘original.
This determination of ‘originality’ varies from one country to another and is often determined by case law. Very generally, for countries following common law only requirement is for the work to show a minimum of skill, labor and judgement. But in countries following civil law traditions, the requirement is stronger. There the work must bear the stamp of the creator’s personality and a creative effort beyond mere skill, labor or judgement needs to exist. A common law system ( prevalent in Australia, United Kingdom, US and India, for example ) gives emphasis to case laws as well as statutes while a civil law system (for example, all European Union states except the UK, Ireland, and Cyprus), relies more on statutes. Feist Vs Rural is an interesting judgement in this regard.
Article 2(3) of the Berne Convention grants protection to even ‘derived works or ‘ derivative works’ ‘. It states :
(3) 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.
As can be seen, such works are derived from others. Examples of derivative works include book summaries, translations, compilations such as anthologies (originality in those being in choice and arrangement of contents), orchestral version of musical compositions, a film based on a novel , etc. etc.
The ‘base work’ may or may not carry copyright protection. If it does, such right has to be protected. For instance, I wish to translate an article. I should first take permission from the author. Thereafter, my translation will in turn be protected but only to the extent of the translation. I cannot claim any right on the article per se. If I don’t take such permission, I am at risk of copyright violation.
Section 13 of the Indian Copyright Act elaborates upon works in which a copyright subsists in terms of Indian Law which is generally in agreement with above.
Rights protected by a Copyright
As the name itself indicates, the major right pertains to allowing ‘right copying’. An owner may determine how his/her creation is to be copied by others, subject to legal exceptions. He may prohibit copying altogether, or may allow to only to a few people. Such right is an ‘exclusive right’ as the owner may exclude others from such copying.
Copyright grants two types of rights:
- Economic rights : That allow an owner to derive financial rewards from the use of his works by others, and
- Moral Rights : Which allow the owner ( for instance author of a novel) to take some actions to preserve the personal link between himself and his creation.
The Economic rights can further be broadly classified as :
a) Reproduction : Which is self-evident from name itself. Examples include printing of books, digital copying, audio copying etc. This right includes the right to authorize distribution for it to be any economic significance. When an item is sold for the first time, or its ownership transferred similarly, this right of distribution is over, generally termed as ‘exhaustion’. That is, after a copyright owner has made a ‘first sale’ and been rewarded for it, the buyer may affect further sale (and similarly down the chain) without the copyright owner’s permission, or may even give it away free.
For rentals of such copies, however, most national laws as well as TRIPS agreement sets apart the categories of computer programs, and audio-visual works in digital formats. In these cases, the copyright owner also has a right of rental to allow/ prohibit such rentals. This is because with digital advances, making copies is very easy. I can make infinite copies of a digital work after buying it only once which I can then give on ‘rent’ thereby harming the copyright owner’s economic rights if such practices are not controlled.
b) Importation : An associated right is right to control importation of copies in accordance of principle of territoriality of a copyright. A book may be legally offered for reduced price in a territory and at higher prices in another, by the respective copyright holders at the time. This leads to ‘arbitrage’ possibilities which will harm the interest of the copyright holder in the higher priced territory, unless he can control such importation.
Exceptions to the right of reproduction rely upon concept of public good or non-commercial use. Such uses, termed as ‘limitations’, do not require permission from the copyright holder, Examples include making single copies for private, non-commercial use. However, these rights are also now being questioned in the digital age since perfect copies can be quickly made, all for ‘private’ use, denying the copyright holder economic rewards for his efforts.
Article 2(bis) of WIPO elaborates upon limitations of such rights. More elaborations are provided at Article 10 and Article 10bis for free use of literary or artistic works and those of other works. Article 13 provides for limitation on right of recordings of musical works.
c) Performance, broadcasting and communication to public: For instance, playing a tune or performing in a play. Concomitant to this are right of broadcasting and right of communication to the public. Broadcasting is in fact right of communication only and maybe on any type of media – cable, Internet etc.
A public performance is one where there is a possibility that a substantial number of people present are not the copyright holder’s family, social contacts, acquaintances etc. It need not necessarily be a ‘public’ place but can be a private place as well. The copyright holder can authorize live performances such as plays, orchestral compositions etc. of his work, including also its recordings both audio or visual. For instance, playing of a song in an airport is its ‘public performance’.
Right of broadcasting is when the work is emitted by means of wireless signals to equipment within range designed to receive them ( such as Television, radio) , while right of communication involves sending such signal over wires / cables when only equipment connected to the wire or cable system can receive such signals.
The Berne Convention grants owners the exclusive right to such public performances, broadcasting and communication . Some jurisdictions replace this right by that of equitable remuneration.
d) Translation and adaption : While translation is clear, adaptation is modification of a work to create another. For instance, adapting a novel to a play. Both translations and adaptations are protected by copyright. Hence to perform these actions, permissions from the owner of the underlying works have to be sought. And the translated/ adapted works themselves then carry copyright insofar as the translation and/or adaptation is concerned.
While above economic rights can generate money for the owner, or he can transfer it for money (such as royalties), the moral rights of the copyright owner always remain with the original creator of the work.
Moral Rights are essentially concerned with recognition and respect. An author/creator has the right that he be recognized. For instance, an author’s name needs to be mentioned on a book. Of course reasonable limits hold when many copyrights are involved. For instance, for a movie there may literally be hundreds of contributors. Some (such as producer, director, main actors) may be mentioned in opening credits while some minor ones in closing credits and some need not be mentioned at all. Similarly, for a song being played on radio. The moral rights can not be transferred. So, even if an author of a book has licensed it to another (thereby transferring his economic right), his moral right of his name being mentioned on the book is still with him and he can enforce it anytime he wishes. Similarly, an author can stop publishing of a parody of his work if he considers the parody to be denigrating to him.
Article 6(bis ) of WIPO elaborate upon the moral rights.
Moral rights are elaborated in Section 57 of the Indian Copyrights Act ( Author’s special rights).
How is a Copyright acquired
Per the Berne Convention ( Article 2(1)), the very fact of creation of a work grants it copyright protection. However the work requires ‘fixation’ ( Article 2(2). Fixation means putting the work out in public domain in a manner that can be repeated. For instance, producing an audio recording. It is immaterial whether the ‘public’ at that time heard it or not, as long as the possibility existed.Some cases are more complicated. For instance dance moves. These can be video recorded. Special signs exist to record choreography. Basically, fixation provides proof of the work .
Registration of a Copyright
Under Berne Convention , a copyright owner residing in a foreign country automatically qualifies for protection in a host country without any formalities, as long as both the foreign country and the host country are party to the Berne Convention.
A country can impose registration formalities on its own citizens as it wishes. Hence, for each country its registration formalities need to be carefully looked into. United States, for instance, requires registration with the Copyright Office and then claiming, by means of letter ‘c’ followed by year of date of creation / first publication on the work/article that he same carries copyright protection.
Indian Copyright Act, Chapter X elaborates upon various provisions for registration of a copyright in India
Tenure of Copyright protection
The minimum requirement under Berne Convention is 50 years from the end of the year of the author’s death. Individual countries may prolong this period. For instance, in EU and US this period is 70 years.
For photographic works, the Berne Convention requirement is 50 years.
Article 7 and Article 7bis of the Berne Convention elaborate on this aspect.
Please note however that there are cases where in the Berne Convention the minimum requirement is less than 50 years post mortem. For example, for photographic works and works of applied art, the minimum term of protection is 25 years after the making of the work.
In terms of Indian Law, Chapter V of the Indian Copyright Act provides for terms of different kinds of copyrighted works.
Limitations on Rights
a) General Exclusion from Copyright of a Work: Some categories of works are completely excluded from protection offered by copyright.. As already said, most countries require ‘fixation’. Even a work of chorography needs to be either video-taped , or put down in a special form of ‘dance notation’. Some other works such as the texts of laws, court and administrative decisions are excluded from copyright protection in most countries.
b) Exclusion of specific acts : In some circumstances, some acts of non-authorized entities of a copyrighted work may be considered as ‘non-infringing’ on the rights of the copyright holder. Such acts are of two types mainly:
1) Free Use : Acts that that may be carried out without authorization and without an obligation to compensate the owner of rights for the use. Acts herein include fairly quoting from a protected work with appropriate attribution, usage by way of illustration of educational purposes, and usage for news reporting. Article 9(2) of the Berne Convention provides for such ‘special cases’ with regards to rights of reproduction. This is a general rule , the main requirement being that the acts do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the author. As already said, personal, non-commercial use is usually allowed but such provisions are increasingly being narrowly interpreted in the digital age we are now in. The concept of ‘Fair use’ of ‘Fair dealing’ is mostly used here and considers aspects such as the nature and purpose of the use, nature of work used, amount of work used , whether the use is commercial , and the likely effect of the use on the potential commercial value of the work.
Section 52 of the Indian Copyright Act elaborates upon such acts that may not be considered as infringements to rights of a copyright owner. Section 51 elaborates upon acts that may be considered as infringements.
2) Non-voluntary licenses : In such cases , non-authorized acts of exploitation of a copyrighted work may be carried out, however the obligation to compensate the owner of the rights remains. They are termed on-voluntary since they are not voluntarily permitted by the copyright owner. The underlying purpose is that rights owners should not hinder development of new technology for disseminating of a work to the public by refusing to authorize use of their works for such technologies. Berne Convention, for instance, recognizes mechanical reproduction of musical works and broadcasting as being eligible for non-voluntary licensing. Copyright systems of most countries have non-voluntary licensing provisions. Nowadays alternatives to non-voluntary licensing have also emerged for making works available to the public based on right owners’ permission, including through the collective administration of rights.
Chapter VI of the Indian Copyright Act elaborates upon how a copyrighted work may be licensed to others either by the Copyright holder, or non-voluntarily under compulsory licensing/ statutory provisions (Section 31 and Section 32) therein.
Major Acts and Agreements
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