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Meaning
Copyright is an exclusive
right given by the Copyright Act, 1957 to creators of literary, dramatic,
musical and artistic works and producers of cinematograph films and sound
recordings. The law is not concerned with the originality of ideas but with
the manner of expression of thoughts. To get the protection of copyright, a
work must be original.
Authorship
Copyright protects the rights
of authors; i.e., creators of intellectual property in the form of literary,
musical, dramatic and artistic works and cinematograph films and sound
recordings.
Ordinarily the author is the
first owner of copyright in a work.
Who is an author?
• In the case of a literary
or dramatic work the person who creates the work.
• In the case of a musical
work, the composer.
• In the case of a
cinematograph film, the producer.
• In the case of a sound
recording, the producer.
• In the case of a
photograph, the photographer.
• In the case of a computer
generated work, the person who causes the work to be created.
Joint Authorisation
“Work of joint authorship”
means a work produced by the collaboration of two or more authors in which the
contribution of one author is not distinct from the contribution of the other
author or authors.
Rights in musical sound recording
There are many right holders
in a musical sound recording. For example, the lyricist who wrote the lyrics,
the composer who set the music, the singer who sang the song, the musician(s)
who performed the background music, and the person or company who produced the
sound recording.
It is necessary to obtain the
licences from each and every right owner in the sound recording.
Government Works
In the case of a government
work, government shall, in the absence of any agreement to the contrary, be
the first owner of the copyright therein.
Work of a public undertaking
In the case of a work made or
first published by or under the direction or control of any public
undertaking, such public undertaking shall, in the absence of any agreement to
the contrary, be the first owner of the copyright therein.
Works by journalists
during the course of their employment
In the case of a literary,
dramatic or artistic work made by the author in the course of his employment
by the proprietor of a newspaper, magazine or similar periodical under a
contract of service or apprenticeship, for the purpose of publication in a
newspaper, magazine or similar periodical, the said proprietor shall, in the
absence of any agreement to the contrary, be the first owner of the copyright
in the work in so far as the copyright relates to the publication of the work
in any newspaper, magazine or similar periodical, or to the reproduction of
the work for the purpose of its being so published, but in all other respects
the author shall be the first owner of the copyright in the work.
Work produced during the
course of the author’s employment
In the case of a work made in
the course of the author’s employment under a contract of service or
apprenticeship, the employer shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein.
Work produced for valuable
consideration at the instance of another person
In the case of a photograph
taken, or a painting or portrait drawn, or an engraving or a cinematograph
film made, for valuable consideration at the instance of any person, such
person shall, in the absence of any agreement to the contrary, be the first
owner of the copyright therein.
Assignment of copyright
The owner of the copyright in
an existing work or the prospective owner of the copyright in a future work
may assign in writing mentioning specific works and specific rights and the
duration of assignment to any person the copyright either wholly or partially
and either generally or subject to limitations and either for the whole term
of the copyright or any part thereof.
If the territorial extent of
assignment of the rights is not specified, it shall be presumed to extend
within the whole of India.
Tenure of Assignment
Where the assignee does not
exercise the rights assigned to him within a period of one year from the date
of assignment, the assignment in respect of such rights shall be deemed to
have lapsed after the expiry of the said period unless otherwise specified in
the assignment.
If the period of assignment
is not stated, it shall be deemed to be five years from the date of
assignment.
RELINQUISHMENT OF RIGHTS
Right of reproduction
The right of reproduction
commonly means that no person shall make one or more copies of a work or of a
substantial part of it in any material form including sound and film recording
without the permission of the copyright owner.
Adaptation
Adaptation involves the
preparation of a new work in the same or different form based upon an already
existing work.
The Copyright Act defines the
following acts as adaptations:
(a) Conversion of a dramatic
work into a non dramatic work
(b) Conversion of a literary
or artistic work into a dramatic work
(c) Re-arrangement of a
literary or dramatic work
(d) Depiction in a comic form
or through pictures of a literary or dramatic work
(e) Transcription of a
musical work or any act involving re-arrangement or alteration of an existing
work.
Translation
A person cannot translate a
work enjoying copyright without the permission of the copyright owner.
Copyright over news
There is no copyright over
news. However, there is copyright over the way in which a news item is
reported.
Registration of copyright
Acquisition of copyright is
automatic and it does not require any formality.
Copyright comes into
existence as soon as a work is created and no formality is required to be
completed for acquiring copyright. However, facilities exist for having the
work registered in the Register of Copyrights maintained in the Copyright
Office of the Department of Education. The entries made in the Register of
Copyrights serve as prima facie evidence in the court of law.
The guidelines regarding
registration of a work under the Copyright Act
Chapter VI of the Copyright
Rules, 1956, as amended, sets out the procedure for the registration of a
work.
The procedure for
registration is as follows:
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Application for registration is to be made on
Form IV (Including Statement of Particulars and Statement of Further
Particulars) as prescribed in the First Schedule to the Rules;
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Separate applications should be made for
registration of each work;
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Each application should be accompanied by the
requisite fee prescribed in the Second Schedule to the Rules; and
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The applications should be signed by the
applicant or the advocate in whose favour a Vakalatnama or Power of Attorney
has been executed. The Power of Attorney signed by the party and accepted by
the advocate should also be enclosed.
If the applicant is not the
author of the work, he has to obtain consent of the author for registration of
the copyright in the work in the favour of the applicant. In case of artistist
the work, which is used or is capable of being used as trademark, under
section 45 of the Act, the applicant has to apply to the Registrar of
Trademark for a prescribed certificate by filling Form TM60.
Upon receiving the
application for registration, the Registrar of Copyright would scrutinise the
same and send a letter to the applicant informing further requirements and
objections , if any.
Upon clearance/compliance of
all the objections and or the requirements, as the case may be, the Registrar
of Copyrights would enter particulars of the work in the Register of
Copyright.
Term of copyright
The general rule is that
copyright lasts for 60 years. In the case of original literary, dramatic,
musical and artistic works the 60-year period is counted from the year
following the death of the author. In the case of cinematograph films, sound
recordings, photographs, posthumous publications, anonymous and pseudonymous
publications, works of government and works of international organisations,
the 60-year period is counted from the date of publication.
The Government has set up a
Copyright Enforcement Advisory Council (CEAC).
The regular courts try
copyright cases. There is a Copyright Board to adjudicate certain cases
pertaining to copyright.
Performer’s rights
1. Who is a performer?
As per the Indian Copyright
Act, a “Performer” includes an actor, singer, musician, dancer, acrobat,
juggler, conjurer, snake charmer, a person delivering a lecture or any other
person who makes a performance.
2. What is the term of
protection of performer’s rights?
Performer’s rights subsist
for 25 years.
3. What are the rights of a
performer in a cinematograph film?
Once a performer has
consented for incorporation of his performance in a cinematograph film, he
shall have no more performer’s rights to that performance.
Broadcaster’s rights
1. What is a broadcast?
“Broadcast” means
communication to the public:
• by any means of wireless
diffusion, whether in any one or more of the forms of signs, sounds or visual
images; or
• by wire.
2. What are the rights of
a broadcasting organization?
The rights of a broadcasting
organization with reference to a broadcast are :
• right to re-broadcast the
broadcast;
• right to cause the
broadcast to be heard or seen by the public on payment of any charges;
• right to make any sound
recording or visual recording of the broadcast;
• right to make any
reproduction of such sound recording or visual recording where such initial
recording was done without licence or, where it was licensed, for any purpose
not envisaged by such licence; and
• right to sell or hire to
the public, or offer for such sale or hire, any sound recording or visual
recording of the broadcast.
3. What is the term of
protection of broadcaster’s rights?
Broadcaster’s rights subsist
for 25 years.
Foreign works
1. Is copyright of foreign
works protected in India?
Copyrights of works of the
countries mentioned in the International Copyright Order are protected in
India, as if such works are Indian works.
2. Does copyright subsist
in a foreign work?
Copyright of nationals of
countries who are members of the Berne Convention for the Protection of
Literary and Artistic Works, Universal Copyright Convention and the TRIPS
Agreement are protected in India through the International Copyright Order. A
list of such countries is at Appendix-IV.
3. Which are the
international copyright conventions of which India is a member?
(i) Berne Convention for the
Protection of Literary and Artistic works.
(ii) Universal Copyright
Convention.
(iii) Convention for the
Protection of Producers of Phonograms against Unauthorised Duplication of
their Phonograms.
(iv) Multilateral Convention
for the Avoidance of Double Taxation of Copyright Royalties.
(v) Trade Related aspects of
Intellectual Property Rights (TRIPs) Agreement.
Collective administration of copyrights
1. Meaning of:
Collective administration of
copyright is a concept where management and protection of copyright in works
are undertook by a society of owners of such works. Obviously no owner of
copyright in any work can keep track of all the uses others make of his work.
When he becomes a member of a national copyright society, that society,
because of its organisational facilities and strength, is able to keep a
better vigil over the uses made of that work throughout the country and
collect due royalties from the users of those works.
2. What is a Copyright
Society?
A copyright society is a
registered collective administration society. Such a society is formed by
copyright owners. The minimum membership required for registration of a
society is seven.
3. What are the functions
of a copyright society?
A copyright society may:
(i) Issue licences in respect
of the rights administered by the society.
(ii) Collect fees in
pursuance of such licences.
(iii) Distribute such fees
among owners of copyright after making deductions for the administrative
expenses.
4. Is it necessary to
obtain licences from more than one society for exploitation of a work?
In many cases, it is
necessary to obtain licences from more than one society.
Moral rights
1. What are the moral
rights of an author?
The author of a work has the
right to claim authorship of the work and to restrain or claim damages in
respect of any distortion, mutilation, modification or other acts in relation
to the said work which is done before the expiration of the term of copyright
if such distortion, mutilation, modification or other acts would be
prejudicial to his honour or reputation.
2. The author’s moral
rights remain after assignment of copyright. Will failure to display a work
infringe the moral rights of an author?
Failure to display a work or
to display it to the satisfaction of the author shall not be deemed to be an
infringement of the moral rights of the author.
What is the rule for the
transfer of copyright?
The owner of the copyright in
an existing work or prospective owner of the copyright in a future work may
assign to any person the copyright, either wholly or partially in the
following manner.
for the entire world or for a
specific country or territory; or
for the full term of
copyright or part thereof ; or
relating to all the rights
comprising the copyright or only part of such rights.
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