Copyright Ó
DIVINE LOGICS
What is a Copyright?
Copyright is a form of intellectual property protection granted under The Indian Copyright Act 1957, to the creators of original works of authorship such as literary, dramatic, musical, artistic, and certain other intellectual works The copyright vests in original work in whatever form it may be and in India it is not mandatory but useful in courts where civil and/or criminal proceedings can be taken to protect it. The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain.
What is covered under Copyright?
It protects the writer or creator of the original work from the unauthorized reproduction or exploitation of his materials. There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are expressed. Works protected by copyright are:
1) Original, Literary, dramatic, musical and artistic works;
2) Cinematographic film; and
3) Records
Copyright subsists in a wide variety of articles created by man, provided they are original in the copyright sense. In fact one can have a copyright in almost everything created by man which is original. In order to qualify for copyright the works, apart from being original, should also satisfy the following conditions, (except in the case of foreign works):
1) The work is first published in India.
2) Where the work is first published outside India the author, at the date of publication must be a citizen of India. If the publication was made after the author’s death the author must have been at the time of his death a citizen of India
3) In the case of unpublished work the author is on the date of making of the work a citizen of India or domiciled in India.
4) In the case of an architectural work of art, the work is located in India.
Functions of Copyright
Copyright owners have the exclusive rights to do or authorise the doing of any of the following in respect of a work :
- 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 (in case of a computer programme), regardless of whether such copy has been sold or given on hire on earlier occasions.
- Copyright confers a number of rights, some or all of which can be granted to others either exclusively or non-exclusively.
Duration of Copyright
The term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person, e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous.
In the case of literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the author, copyright subsists during the lifetime of the author plus fifty years. This a universally accepted term. Where the work is of joint authorship the fifty years period will start after the death of the author who dies last. In the case of anonymous or pseudonymous works the terms of Copyright is until fifty years from the year of publication. If the identity of the author is disclosed before the expiry of the fifty years period the term will extend to fifty years after the death of the author. In the case of posthumous publications the term will be fifty years from the year of publication.
The period of copyright for a photograph is fifty years from the year of its publication. For cinematograph film and record also the term is fifty years from the year of publication.
Where the first owner of copyright is the Government of a public undertaking the term of copyright is fifty years from the year of publication. Copyright works of International Organisations also have a term of fifty years from the year of publication . The term of Copyright has been recently amended.
Procedures, Requirements & Grant of Copyright
For filing the copyright application in India, following are the requirements :
- Full Name, Address and Nationality of Applicant & that of the author
- The year & country of first publication of the work
- List of countries where the work has been published and the year of publication
- The year & the country of last publication
- Six copies of the work
- Power of Attorney [POA]
- In case of labels, which can be used as trademark, firstly clear copyright search certificate has to be received from the trademark registry & only thereafter, application for copyright can be filed in the copyright office
Following steps are involved for the grant of copyright in India :
1) The application with complete details is filed
2) Thereafter, the application is examined and objections, if any, are raised thereto
3) The certificate is issued by the copyright office after the objections, if any, are removed to the satisfaction of the department
The process of obtaining the certificate of copyright in India takes about 6 - 12 months.
Copyright Ó 2001 - 2006. All Rights Reserved.
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Rights conferred by Copyright
Copyright is not a positive right but a negative right, that is the right to stop others from exploiting the work without the copyright owners consent or license. Thus where, for instance, the work is derived from some other work in which copyright subsists as in the case of translation, adaption or abridgement of a literary work the author of such work can stop others from exploiting it but cannot himself exploit that work without the consent or license of the original work from which the work has been derived.
Copyright is not a single right but a bundle of rights which can be exploited independently. Further, the nature of these rights depends upon the category of work. But one right which is common to all works is the right to reproduce or make copies of the work. The owner of a copyright may exploit any one or more of the rights for a consideration in the form of royality or a lumpsum payment.
Moral Rights:
The author of a work has got certain rights called "moral rights" as distinguished from the other rights called "economic rights". These are:
- The right to decide whether or not to publish the work (the right of publication).
- The right to claim authorship of a published or exhibited work ( the right of paternity).
- The right to prevent alteration and other actions that may damage the author's honour or reputation ( the right of integrity).
These rights remain with the author even after the transfer of copyright and the protection lasts during the whole of the copyright term. If the author desires to transfer these rights also he can do so specifically in writing in the deed of assignment.
Infringement of Copyright
The owner of a copyright work has the exclusive right to do certain acts in respect of the work. If any person does any of these acts without authority he will be committing an infringement of the copyright in the work. These are three types of remedies available against infringement of copyright; namely, civil, criminal and administrative. The copyright work can be used for certain specified purposes with out committing an infringement.
There is no copyright in ideas however original or brilliant or in information. What copyright protects is not the raw materials from which the work is created but the skill and labour employed by the author in the creation of the work.
Essential ingredients of infringement
- Reproduction of the work in a material form,
- Publication of the work
- Performance of the work in public
- Making of adaptations and translations of the work and doing any of the above acts in relation to a substantial part of the work.
The Copyright Act provides certain exceptions to infringement. The object of these provisions is to enable the encouragement of private study and research and promotion of education. They provide defenses in an action for infringement:
- Fair dealing
- Publication of short passages, restricted reproduction or performance for educational purposes.
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