- ABSTRACT:
What if a right could not established as in the property of any specified copy and what if such copy might create a number of rights which does seek towards the infringement of any particular right. So, slip away from the confusion of these rights an act was established as an impetus to design an exact framework of what a specified copy embodied. Thus, a Copyright Act, 1957 Command the subject of the Copyright law in India. Copyright is a technology which travels with an era of works such as artistic, literary, sounds as being grows and it is here to protect a property with their particular work. In this article, we argue, first that, who demands and what a copyright exactly consists. We argue, secondly, how it may come under the intellectual property right. We argue further, that what exactly an act consists of and how it became a complete Indian copyright act. At last, we further describe the right and infringement of such particular rights which must be followed thoroughly. Here an attempt has been made to perceive knowledge and get deeper into it. We find such Interpretations which we are adding on this article and falls come under the Copyright Act, 1957.
KEYWORDS: Copyright Act, Infringement, Rights, Intellectual property.
- INTRODUCTION:
Copyright encourages human creativity. The grail of this article is to provide an overview of the copyright law and related rights in India. It provides economic benefit to the creator of such works as to allow them or their heirs to benefit financially from their works for a limited period of time. In other words, copyright provides limited monopoly to the creators of such works and their heirs to economically exploit their work. This provides not only recognition for their works, but also incentives to create more. As they create, everyone is benefitted through a greater access to a wider variety of culture, knowledge and entertainment.
Copyright law and policy rests on some essential balance. Copyright law protects expression of ideas and not ideas in themselves- commonly referred to as the idea expression dichotomy. One of the foremost objectives of copyright is to ensure the creation of a strong public domain where large variety or culture and information are created and disseminated for socio-economic wellbeing of the society. The secondary object seems is to afford some level of protection to authors/owners for preserving their economic interests and thus incentivize creativity. As noted by commentators, copyright has the “Potential to inhibit the public’s ability to communicate, to develop ideas, to produce new works”.
Some commentators have rightly remarked that “Copyright is the Cinderella of the law”- as inventions is the mechanical, electronic and digital world have been influenced the growth of copyright law and policy throughout the course of history and without which the copyright law would have remained stagnant.
The word ‘copyright’ is derived from the expression ‘copier of words’ first used in the context, according to Oxford Dictionary, in 1586. Copyright according to Black’s law dictionary is the right in literary property as recognised and sanctioned by positive law. An intangible incorporeal right granted to the author or originator of certain literary or artistic production whereby he is invested for a specified period for a sole and exclusive privilege of multiplying copies of the same and publishing and selling them.
- CHRONICLE OF COPYRIGHT:
Copyright was born as a result of the invention of printing press in 1440 that allowed mass copying of manuscripts. Copying was certainly laborious and time intensive prior to technologies that allowed copying. There are different versions of the growth of copyright in to a codified system of law.
In England, a statute of 1483 encouraged printing and importation of books which was repealed in 50 years on protectionist grounds that it did not give preferences to nationals in printing who had learnt the art of printing. It soon became a source of revenue and censorship in the hands of the crown[1]. The 1556 charter of the Stationers Company declared that the object was to censor any seditious matter against the crown or the Catholic Church which was witnessing the rise of the reformist sentiments in the clergyman led Christianity. Thus the history of copyright can be traced to the history of censorship.
The Star Chambers was abolished by 1640 and certain events that unfolded led to questioning of the King’s authority. The Parliament required that any licence to print/import shall only follow after the book was registered with the Stationers Company which involved a membership mechanism. The legislation in some ways recognized that a common law right existed in favour of the owner of the manuscript and this to an extent helped to cut down piracy[2].
In 1681, after the expiry of legislation that effectuated the Stationers Company, it passed an ordinance to enforce right to copy in printed matter purportedly through common law. This allowed exchange of rights to copy among members of the Stationers Company. However, since the Stationers were regulated by their own by-laws, they persistently petitioned the Parliament for a new licensing law.
Thus came into being the first codified Copyright Act from 10th April 1709 to be passed by the British Parliament popularly called as the “Statute of Anne”. This was also supported by “fruit of labour” theory proponent-John Lock. The two important foundational principles that were acknowledged in this Act-
- Protection of copyright was to ensure authorship
- Limited duration of copyright protection.
After 21 years of the passing of the Statute of Anne, when privileges/monopolies of the Stationers Company ceased to expire due the operation of the 1790 Act, the Stationers Company proceed to the Court to claim a “common law” right to property to copyright in perpetuity.
At the end of the 18th and the 19th century, the scope of copyright was increased to include other types of works apart from literary works. It included works like engravings, prints, lithographs, sculptures, dramatic and musical works apart from literary works. A ‘performing” right for dramatic works was created in 1833 and it was extended to musical work in 1842.
Britain was exporting a lot of copyright materials, so it wanted to have some sort of copyright protection abroad. As a result of its efforts the Berne Convention was signed in 1886. Later in 1908 when the Conventions had been revised, the copyright term was increased to Authors lifetime plus fifty years.
The 1911 Copyright Act in England incorporated these changes. An additional protection was granted to producers of sound recordings which gave them exclusive right to prevent unauthorised reproductions of their recordings. Further the Copyright act, 1956 protection was granted to cinematograph films, broadcasts and typographical format of published editions by Copyright Act, 1956.
In a separate development, the Convention on Protection of Performers, Producers of Phonograms and Broadcasting Organisations was signed in Rome in 1961.
- EVOLUTION OF COPYRIGHT LAW:
Copyright is one of a branch of the Intellectual Property Right (IPR). Copyright gives exclusive right to the author to do or authorise other(s) to do certain acts in relation to-
- Literary, dramatic or musical works;
- Cinematograph film;
- Sound recording; and
- Artistic work.
International treaties and convention are the reason for the evolution or development of copyright worldwide, this treaties and convention are;
- THE INDIAN COPYRIGHT ACT:
Barbara Taylor Bradford v Sahara Media Entertainment Ltd[3] in the words of the court:-
The law recognises the policies-
- The law must protect originality of artistic work,
- The protection must not become an over protection, thus, curbing down future artistic activity.
But the law is also in accordance with, what could be called the idea of fair protection, even if that idea of fairness were to be formed by an artist or a writer.
The Copyright Act, 1957 thus, is a bundle of right, the right to prevent copying of the work is the most fundamental and historically the oldest form of right. This right is very generally applicable to all the possible categories of work under copyright. The scope of the right is dependent on the casual connection between the right that is infringed by finding out objective similarity and that it is a result of copying the work that belongs to the party asserting the right.
- RIGHTS OF COPYRIGHT OWNERS UNDER THE ACT:
Section 14 of the Copyright Act, 1957 lays down the foundation for economic rights granted to owners of copyright. It is pertinent, that Section 14 distinguishes between different categories of work based on which the rights are granted. All Intellectual Property Rights are creations of statute and hence rights identified flow only from the statute. The rights are identified based on the nature of commercial exploitation of a particular work and hence they are subject matter specific[4].
Communication rights of certain protected subject matter also include broadcasting, cable casting and webcasting rights. Performers and broadcasting organizations have also been bestowed with certain bundle of economic rights
- INFRINGEMENT OF COPYRIGHT:
Violation of a copyright law by any person without a license or permission by the owner of the creation is called asinfringement of copyright. Copyright law provides exclusive legal rights to an author to get all kind of benefits on hiscreation.As per the Section 51 of Chapter XI of Indian copyright act, using any copyrighted work without the permission of a copyrightowner is an infringement of copyright law and the following instances could be considered as infringement of copyright. Anyperson who does the infringement of a copyright is solely held responsible for his misconduct.
- Performing publicly without any consent of the owner
- Using copyrighted work for any kind of business which brings financial benefit
- Distributing for the purpose of trade or import
- Reproduction of substantial part of copyrighted work in any material form
- Circulating among the unauthorized persons
- Adoption or translation of copyright work without any permission
- Resale or renting of copyrighted material to others
- FAIR USE OR FAIR DEALING:
The doctrine of fair use is a broad concept and flexible in its scope. Fair use dealings have been laid down by the courts in various situations during theirjudgments. The four doctrines prescribed in the United States code as:
- Damage on the market value of copyright work
- Nature of the copyright work –public access, unpublished, copyright expired
- Purpose of using, e. whether it is for commercial or educational or research or any social cause
- Substantial usage of work
Fair use is an essential part of the Copyright Law which permits to reproduce the copyright work in a manner that could be only used for following purpose which is not considered as an infringement. Fair use is a key factor that encourages the growth of knowledge and motivates people for fair utilitarian.
- Purely for private use, including research work
- To criticize or review the work of others
- For any kind of judicial proceedings
- In order to protect damage or loss of work, copyrighted work could be archived
- Reporting of current events and news in, such as periodicals, magazines
- Making not more than three copies of a Book which is not available for sale in India, by the public libraries under the direction of person in charge
- Using for class instructions by a teacher to his students
- for the purpose of examination and as part of questions, work can be used for writing answers
- Can be performed or used in course activities of an educational institution by the staff and students. In such case audience must be limited to staff and students of the institution.
- Unpublished works which are kept in libraries or any institutions can be reproduced for the purpose of research or private study
- Reproduction of copyrighted work for disabled persons for non-profit purpose but the institute should ensure that the copies are accessed only by them.
- COMMUNICATION OF PUBLIC RIGHTS:
The right of “Communication to Public” is fundamental to the Copyright Law that has emerged as one of the economically powerful rights- especially to the music and film industry.
In Super Cassette Industries v Nirulas Corner House (P) Ltd[5], the plaintiff was a holder of an array of literary and musical works, sound recordings, music videos and cinematographic videos and manufactures and sells VCDs, DVDs and Cassettes containing these works. It also licenses the right to exploit its works. The defendants were engaged in the business of hotels/restaurants. The plaintiff alleged infringement of its copyright in musical works by the defendant by transmitting them to its guests in their restaurant/ hotels and sought interim injunction against them which was granted by the court. The main contention of the plaintiff was that titles in which it had copyright were being played in the hotel rooms, without a proper license. Such usage would amount to public performance/communication to public of the work, the exclusive rights to which were granted only to the copyright holder or a duly licensed under the act.
The explanation to Section 2(ff) of Copyright Act inserted in 1995 and is defined as:
“Any work available for being seen heard or otherwise enjoyed by the public directly or by means of display directly or by means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made”.
- COPYRIGHT VIS- A- VIS LEGAL WRITING:
As creators of the copyright material or writers, the members of academic and research community need to be careful while treating other’s material as raw material in their writing. No work is made out of vacuum.
The academic works are based on previously existing works which serve as the building blocks. These works may be subjected to ‘copyright’ as well. Copyright is a branch of intellectual property which deals with rights and duties of creators and users of works such as original literary, dramatic, musical and artistic works. The purpose of copyright is to reward the creators of original creative works. The copyright system is balanced by protecting the interests of both users and creators of the work. However, it is not a monopoly but copyright system promotes, as stated earlier, the interests of society as a whole and favours the greatest good for the greatest number of people by limiting the rights to a fixed duration. After the expiry of the term of the copyright[6], the work falls into public domain. The fairness theory of copyright is based on the premise that the law ought to give authors what they deserve for their creative ingenuity. By copyright system, the hard work of the authors is rewarded and authors are allowed to retain control of the fruits of their labours.
Where Welfare Theory is based on the fair use clause favouring the users of copyright content, the Fairness Theory heavily draws on the economic and moral rights of the creators. Since, the academic researchers are both the users and creators of copyright content; they have to strictly adhere to the duties and responsibilities as users and to avail maximum benefit out of their rights as copyright content creators. All works are not copyrightable. There are exceptions to copyright protection in the public interest, such as judgments of a court.
In Eastern Book Co. v DB Modak[7] the Apex Court in India made it clear that there can be no copyright in the raw text of court judgments and decisions. The Court adopted the ‘minimal degree of creativity’ as the threshold for copyright protection and further held that to claim copyright, mere copy editing would not suffice. However, head notes would qualify for copyright protection since there is some creativity involved in their making.
- CONCLUSION:
Ingress to the copyright material and new erudition is a must for academic community to keep abeam with new developments and to inaugurate next generation of indigenous work. Ingress to knowledge in itself is a human right. On the other hand, protection of the economic rights in the copyright material and moral rights are also human rights of the content creators. These two rights are to be balanced. The copyright law as a welfare legislation tries to balance this. The exceptions and limitations attached to the copyright are meant for protecting the public interest to have access to the works and for dissemination of knowledge. Unauthorised use of someone else’s work contrary to the statutory exceptions is not a fair use. Fair dealing is the important exception primarily for non-commercial educational and academic activities. Since, copyright is based on automatic protection clause under the Berne Convention, and no formalities including registration are required apart from the minimal statutory requirements, for the enjoyment and the exercise of copyright, the users and researchers should be extremely careful. As researchers and writers, themembers of academic community have to be vigilant to protect their copyright in their creative works; at the same time they have an obedience and responsibility to veneration the rights in the works of others, who provide them with the building blocks for further creativity. The duty to respect authors and their works is a part and parcel of academic integrity. Academic integrity and honesty go beyond the limited period of legal copyright and any deviation from the said integrity is not only an act of plagiarism but the death knell of academic creativity. Our country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in the protection of these rights, including the copyright. The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with such copyright infringement.
[1]Kevin Garnett, Jonathan Rayner James, Gillian Davies, Copinger and Skone James on Copyright33 (14th ed. 1999).
[2]Kevin Garnett, Jonathan Rayner James, Gillian Davies, Copinger and Skone James on Copyright35 (14th ed. 1999).
[3]Barbara Taylor Bradford v. Sahara Media Entertainment Ltd(2004) 28 PTC 474(Cal) (BD) (India)
[4]Gopalkrishnan and Agitha, “Principles of Intellectual Property”, Eastern Book Company p. 223 (2006).
[5]Super Cassette Industries v Nirulas Corner House (P) Ltd2008 (37) PTC 237 (Del) (India).
[6]RG Anand v Delux Films and Others, 1978 AIR 1613 (India).
[7]Eastern Book Co. v DB Modak (2008) 1 SCC 1 (India).
