Copyright

The author in this article discusses the concept of Copyright in detail, along with the various amendments to the Copyright law. Indian Copyright Law has undergone several amendments in order to align with the international TRIPS agreement. Every amendment has been made in view to provide better protection of rights to work and its owners
Estimated Reading Time: 13 minutes

Introduction

Copyright is the right given by law for the creation of literary, dramatic,musical, artistic works and producers of cinematography films and sound recordings. These are a bundle of rights including the rights of reproduction, communication to the public, adaption, and translation of the work. The word ‘original’ has not been defined in the copyright act of 1957, it is derived from the precedents and case laws. The largely understood that the meaning is the work has to be original, and the owner who owns that work and must not be in any circumstances copy of any other thing. 

The purpose of copyright law is to secure and reward the general benefits i.e. the labor of authors on their produced work so that it encourages the author to bring more creativity in their work continuously. 

Indian laws adhere to the rights laid down by Article 9(2), 1996 of TRIPS agreement on copyrights. The rights are referred to as restricted acts under Copyright law that enables the owner to get the economic rights,andthe usage of work without a license isrestricted by law. 

Copyright consists of having multiple rights on the same work referred to as a ‘bundle of rights’and it can be of any subject matter. The researcher needs to study the impact of technological development and changes adopted by copyright laws. 

Few conditions that the author needs to keep in mind to ensure that the work produced has been copyrighted are as follows:

  • The work must be the original one 
  • It must be fixed in tangible form 
  • Must be the first to publish the work[2].

Works in Copyright  Subsists

The copyright subsists in original 

  1. Literary
  2. Dramatic
  3. Musical and 
  4. Artistic work 
  5. Cinematography 
  6. Sound recordings 

These rights are mainly economic rights that are scategorised under two main rights given in the Copyright Act of 1957. These rights are inclusive of any work in any form of material, includingthe medium of storage, either by electronic means or whatever, and those to issue the copies to the public through various ways. In the case of computer or software works, the author of the work enjoys the rights mentioned in it. It has to be translated for any adaptation of work and can sell, hire, offer any copy,  even though it has been sold or given on earlier occasions. These rights are made available 60 years from the beginning of the calendar until the author passes away. 

Sometimes there could be an overlap of rights where artists may have to register undera Trademark or Copyright law if such work is in terms of the goods and services it should also be followed under both Trademark and Copyright laws. 

In case, any copyright is an unregistered right which is to be registered as an industrial right that can be applied more than 50 times by the industry by the owner or anyone whowants itto be copyrighted. 

The second set of rights is moral rights which are:

  1. Right of Integrity – this empowers the author to prevent distortion, multination and other alterations to his work which would be prejudicial to his honour and reputation. 
  2. Right of Paternity – This right refers to the author to claim authorship of work and right to prevent others from claiming the same authorship again. Section 57 of copyright laws 1957 

 It also mentions that the author cannot claim for any damages or have the right to restrain once the adaptation of the work has been  made. 

Author and Ownership

The ownership of the rights may be vested under various personas depending on the circumstances and the work. Under section 52 of the copyright act 1957, the reproduction of any publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute an infringement of copyright. Therefore, the orders and judgments are for the public domain and public consumption. Hence anyone can publish them, and no one can claim the copyright for the same by creating new versions and amendments in the same. 

The first ‘right’ of the copyright goes to the author/person who has published the original work and ensured  that this work hadbeen created during employment or at the instance of another person or under the contract governing the ownership of copyright as per Section 17 of Copyright Act 1957,  will be with the employer of that contract. 

In case of any speeches delivered in public, the person who has delivered will be the first owner of that copyright. The author can also relinquish his rights by giving notice on a later point of time. 

In the case of Sajeev Pillai v. VenuKunnapalli & ors, the case created the confusions on whether the author’s work even after the assignment will be given special rights to claim the authorship of his work under section 57 of copyright Act 1957 . the Court gave the decision that in this section 57 which talks about the restraining the third party and also it gives damage claims in terms fo any distortion or modifications or any other actions in relation to which there would be pre judicial reputation. This provided the petitioner in the case to claim his legal rights authorship over it .

Assignment of copyright

These are in writing and signed by the assignor or by his duly sauthorised agent. The deed of assignment must specify the ‘rights assigned’ including the duration and territorial extent of assignment. An assignment of copyright is exempted from stamp duty and this applicable for both registered and unregistered copyrights. The deed assigning copyright along with some other property say Trademarks, it is advisable to state as to which part of the consideration leantowards the copyright or rather demarcate the area of copyright clearly. 

If it’s a commissioned work

At times, the owner of the copyright assigns the work to anotherperson either wholly or partly and these are subject to certain limitations whichcan come to effect only when it comes to the existence of the work.  Section 19 of the copyright act 1957 talks about the mode of assignment in copyrights. 

The mode of the assignment  has be in writing, signed by the owner or by his duly authorised agent. Depending upon the nature of the work, the duration, scope and extent of applicability shall also be clearly stated in such written consent. Also, the royalty payable to the author or  heirs, period, revision, extension, termination etc. is to be clearly stated as agreed by both parties. By default, if the period of the assignment of not mentioned, it will be valid for fiveyears from the date of the assignment. Similarly, in the case scope and extent of the rights is not specified in the assignment, then it shall be confined within the territories of India[5].

The work being commissioned and the owner has different meaning where the work remains with the creator and whereas commissioned person only has a certain set of rights and from which its shall be comprised even more and have so assigned will not be having absolute rights. Also, the assignee keep the rights unused for a period of year, such assignment rights will get elapsed after the expiry of the period, unless stated otherwise. 

If it’s a joined ownership

The Copyright Act understands the work jointly that is a collaboration with two or more persons where both are equally and not treated distinctly from the contribution of authors’ ideas. Till now joint authors have been given equal rights as an individual author but in case of any disputes, one can approach the court seeking relief such as injunction damages, accounts of profits, etc. 

Terms And Condition Of Copyright:

The Copyright terms and conditions under the assignee are laid down under the section of 19, they are as follows:

  • It shall be considered valid only when the assignee and assignor has duly sauthorised an agent 
  • It shall specify the rights assigned, the duration of such assignment and it shall also mention the amount of royalty one has to be paid
  • The assignee can extend or terminate depending on the mutual agreements of parties 
  • There are only territorial rights available for such rights, and terms and conditions of the agreement will be assigned in the copyright society where the author is  a member
  • Certain works cannot be copyrighted such as cinematography, as it affects the right of the author and can claim only the royalty for the same 
  • If there is no date or duration specified by the author, it is to be considered as fiveyears from the date of assignment. 

Licensing Of Copyright

A Copyright License Agreement is a contract is under which a copyright owner allows another person or company to use their copyrighted material mainly three following ways such as redistribute, reprint, and use for a particular duration of time.  Most importantly, a ‘License’ to use is just the transfer of the interest in copyright and not absolute ownership.  

Consideration is the most important part of ‘granting license’is for copyright, and if this subject matter is not available, then one  may  revoke the license. 

The author of the copyright of any work can grant a license under copyright law to sauthorise the third party to do the aforesaid works. 

License agreement

A license agreement typically includes the following but not alone:

  • Duration of license
  • Royalty payable
  • Conditions relating to revision 
  • Identification of work and rights of owners 
  • Conditionsto publish or allow the republication of work 
  • Scope and extent of usage granted

There are various kind of copyright licensing that owner can apply for:

  1. Voluntary License: An existing copyright owner in any future work,  may grant any interest or right by way of license. When work comes into existence, only these licenses will come into force. Even the legal representative of the licensee may appear to benefit the at times in such kindof license. A voluntary license can be of various types – Exclusive, Non-exclusive, Co-exclusive, Sole, Implied etc.  

 

  1. Compulsory License: These licenses are granted public intersetand enjoy the exclusive right without even the prior agreement from the owner.  

 

    • License for work withheld from the public: Any person can approach the Copyright Board to get the license issued and can publish workwithheld from the public by the owner. License is granted under one condition that the licenseebe the first one to approach the office for the publication. These compulsory licenses can be used for unpublished works of unknown authors and for the benefit of the society. Such licenses issued after a hearing from the Copyright Board, 

 

    • Statutory license: The statutory license is issued by the copyright board for making any royalties payable under this license, the board issues the licenses for any broadcasting sorganisation for broadcasting any literary, musical work or sound recording. 

Case law: In the case of TIPS Industries V/S Wynk Music [6],

the issue arose regarding statutory licensing scheme under copyright Act for online streaming services , the fact petitioner is a Indian Music Label which has exercised its copyrights over different music repository , the defendant tried to access the music repository , also they wanted to renegotiate the licensing conditions on its expiry . The Court came into conclusion that the defendant has done direct infringement and also cleared out the ambiguity that existed with regard to online streaming services under section 31D which says download and purchase of copyrighted works is not covered . The Court found this section to be an exception and to be strictly interpreted . Hence , Court after examining the same ,  said that the statutory license was only intended to cover the radio and television broadcasting not the interent broadcasting. 

    • License to produce and publish translations: Here the applicant approaches Copyright Board and pays a royalty to produce and publish a translation of the work done after seven years ofthe first publication.,

 

    • License to reproduce and publish work for a certain purpose: An applicant can approach Copyright Board to reproduce the work after the period of expiry, and any copies of such work are not available in India by way of selling or reproduction in public

 

The license should be in writing and should be duly signed by the owner of the copyright or his sauthorised agent. Licenses can be exclusive and non- exclusive where one confers on the license given by the sauthorised person by him to the exclusion of all other persons. 

The validity of a License

If the licensee does not exercise right granted to the person with the deed. Usually, the period of the license is not mentioned hence deemed to be for five years. In the case of the work is jointly owned, or Co-Joint owners, no individual can independently grant license without the other owner’s consent. If the consent is not taken from the other owner, then the other co-joint owner has the right to sue. 

Termination of license

License termination shall not happen until there is an expiry of the contract license agreement or for three months from the date of service of notice.This is under condition that the licensed works copies which are  produced , published by the authorised person before the termination of the license have chances to resell or distribute until the copies get exhausted. 

Infringement Of Copyright

Copyright Infringement refers to the sunauthorised access of someone’s copyright work without the permission of the copyright holder. For e.g., if a person uses the music of another artist without the permission of the creator, then this can be held as an infringement. As per section 51 of the Indian Copyright Act, using the copyrighted work without the permission ofthe owner is an infringement, where the following are considered to be an infringement if done so :

  1. Performing publicly without the consent of the owner 
  2. Using copyrighted work for any kind of business which any financial benefit 
  3. Distributing for trade 
  4. Reproduction of substantial part of copyrighted work in the material form 
  5. Circulating images in an sunauthorised way 
  6. Adoption and translation of the copyright without the permission 
  7. Resale or renting the copyrighted material to others
  8. There are mainly two types of infringement in copyright 
  9. Primary infringement – the real act of copyright
  10. Secondary infringement – selling pirated books, importing 

Rights of the copyright owner:

  1. To produce the work in a material form 
  2. To publish the work 
  3. To perform work in public 
  4. To produce, reproduce, perform or publish any translation of work 
  5. To make any cinematography film 
  6. To communicate via broadcasting 
  7. To adapt work 
  8. To do concerning the translation of adopted work.

Copyright Societies

The copyright societies is a concept where management and protection of copyright in works are undertaken by a society of author and owners, the author has to be a member of the national copyright society through which the assignee can ensure the duly work is that of an original work of the author who has registered themselves in the copyright society. These copyright societies can have any reciprocal agreements and international conventions with similar societies in other countries for collecting royalties for the uses of Indian work in those countries. It is the interest of the copyright owners to join a collective administration sorganisation to ensure better protection to the copyright in their works and for reaping optimum economic benefits. 

As per section 33 of the copyright act, the copyright society is a registered collective administrative society, usually, the copyright society can issue or grant the license in respect of any work in which copyright subsists or in respect of any other right given under the copyright act. The register ration granted to a copyright society shall be five years and maybe renewed from time to time before the end of every five years on a request in the central government.

Function of the Copyright Society is as follows:

  1. Issue licenses 
  2. Distribution of fees collected
  3. The societies are competent for copyright society to enter into an agreement with any foreign society or sorganise the administered rights. 
  4. Collect fees in pursuance of licenses 
  5. Can control the authors and owners 
  6. Obtain the approval owners  
  7. Maintenance of records in copyright societies.
  8. Meeting to be held 
  9. Documents to be submitted in AGM 
  10. Returns filing  
  11. Maintenance of code and conduct in society 

E.g:  Copyright societies in India:

Literary work: The Indian performing right society limited

Photocopying: Indian Reprographic rights

Performers: Indian singers association

Rights Of Broadcasting Organisation and Performers 

As per section 37 of the copyright act, the broadcasting rights are as follows:

(1) Where any program is broadcast by radio-diffusion by the government or any other broadcasting authority, a special right to be known as “broadcast reproduction right” shall subsist in such a program. 

(2) The government or other broadcasting authority, as the case may be, shall be the owner of the broadcast reproduction right and such right shall subsist until twenty-five years from the beginning of the calendar year next following year in which the program is the first broadcast.

(3) During the continuance of a broadcast reproduction right with any program, any person who, — (a) without the license of the owner of the right — ( i ) rebroadcasts the programme in question or any substantial part thereof; or ( ii ) causes the programme in question or any substantial part thereof to be heard in public; or (b) without the license of the owner of the right to sutilise the broadcast to make a record recording the programme in question or any substantial part thereof, makes any such record, shall be deemed to infringe that broadcast reproduction right.

 

The broadcasting rights began with the demand for protecting the authenticity of a broadcast of an event that made the ability to shape up or incorporate itself into laws. 

The Supreme Court granted the First open-ended Anton Pillar in a legal row over the TV broadcasting rights of the India-Pakistan cricket match. Upon this controversy, provided mandatory “must carry” provisions and introduced via legislation it shall be a strict mandate that Sports Signals ought to be shared freely to the maximal population in keeping with judicially acknowledged social needs incorporating the Right to Entertainment and Human development” Ten Sports v. Citizen Consumer and Civic Action Group.”

The insertion of new laws have brought a major change in the scenario of copyright and its exercise, hence, have been able to give a certain amount of privilege to the Broadcasting Organizations yet, these laws are incapable of giving the smaximised level of protection due to several loopholes as in the aftermath of the inclusion of these laws the Supreme Court and the other Courts had to pass many judgments to reduce the controversial streak that has arose overtime.

Conclusion

Indian Copyright Law has undergone several amendments in order to align with the international TRIPS agreement.  Every amendment has been made in view to provide better protection of rights  to work and its  owners. Increase in trades and inventions in the past few years, Indian authorities have understood the importance of original work is to be protected and ensure that invention remains unpublished before the actual work is recognised.  Infringement is seen as a serious crime more awareness among people, and stronger enforcement of law can bring greater creativity among public.

[2] International Journal of Research in Library Science ISSN: 2455-, SJIF Volume 2,Issue 1 (January-June) 2016,48-53

[5] Section 17 –  21  of Copyright Act 1957 – chapter 4

[6] Notice of Motion (L) No. 197 of 2018 IN Commercial Suit IP (L) No. 114 of 2018, decided on 23-04-2019.

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