Legal Point - Copyright Law in India

04 J une, 2010
COPYRIGHT LAW IN INDIA

Contributed by Abhinav Kaushik Advocate
Copyright is the legal protection given to the creator of an original
literary or artistic work. It is the exclusive right granted by the law
to creator of such original work, to do, authorize, or prohibit
certain acts in relation to such work.
Copyright assumes supreme importance for authors, artists,
architects, composers, music production companies and producers,
film production companies, computer programmers and designers
Before the signing and the subsequent introduction of the 1957
Act, the copyright laws of India were governed by the Copyright
Act of 1914. This act was linked to the British Copyright of 1911 to
India. Most of the laws contained in the Copyright Act of 1957 are
based on the copyright law of the United Kingdom--specifically the
Copyright Act of 1956. India's copyright laws comply with most
international conventions and treaties dealing with copyright
protection. The country is a member of the Berne Convention of
1886, the Universal Copyright Convention of 1951 and the
Agreement on Trade Related Aspects of Intellectual Property
Rights Agreement of 1995--or TRIPS. The country is not a
signatory to the Rome Convention of 1961, but the laws regarding
the copyrights in the country still comply with the convention. The
Copyright Act, 1957 protects original literary, dramatic, musical
and artistic works and cinematograph films and sound recordings
from unauthorized uses.
The present article is an attempt to highlight major areas of the
copyright law in India. It does not cover the entire law but is an
endeavour to make the law and the process easier to understand
from perspective of man with or without legal background.
1. Definitions
a) Work
Classes of works for which copyrights protection is available in
India
Original literary, dramatic, musical and artistic works;
Cinematograph films; and
Sound recordings.
b) Artistic work
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Legal Point: COPYRIGHT LAW IN INDIA http://legalpoint-india.blogspot.in/2010/06/copyright-law-in-india.html
1 of 11 11/29/2012 5:13 PM
a painting, a sculpture, a drawing (including a diagram, map,
chart or plan), an engraving or a photograph, whether or not any
such work possesses artistic quality;
a work of architecture; and
any other work of artistic craftsmanship.
c) Musical work
"Musical work" means a work consisting of music and includes any
graphical notation of such work but does not include any words or
any action intended to be sung, spoken or performed with the
music.
d) Sound recording
"Sound recording" means a recording of sounds from which sounds
may be produced regardless of the medium on which such
recording is made or the method by which the sounds are
produced. A phonogram and a CD-ROM are sound recordings.
e) Cinematograph film
"Cinematograph film" means any work of visual recording on any
medium produced through a process from which a moving image
may be produced by any means and includes a sound recording
accompanying such visual recording and "cinematograph" shall be
construed as including any work produced by any process
analogous to cinematography including video films.
f) Coverage for Government Work
The copyright of 1957 also calls for protection of government work.
Government work, according to the act, refers to all works that are
made, published and made under the direction or control of the
government, the legislature, the courts, tribunal and other judicial
authority.
g) Author
Ordinarily the author is the first owner of copyright in a work.
In the case of a literary or dramatic work the author, i.e., 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.
2. Assignment of copyright
Assignment of Copyrights can be made in whole or in part either
generally or subject to limitations and either for the whole term of
the copyright or any part thereof. In other words, you may assign
away 50%, 1%, or 99% of your interest in that Copyright.
Assignments may be integrated into a contract, or may be drafted
separately.
a) Mode of assigning copyright
It shall be in writing signed by the assignor or by his duly
authorised agent. It shall identify the specific works and specify
the rights assigned and the duration and territorial extent of such
assignment. It shall also specify the amount of royalty payable, if
any, to the author or his legal heirs during the currency of the
assignment and the assignment shall be subject to revision,
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2 of 11 11/29/2012 5:13 PM
extension or termination on terms mutually agreed upon by the
parties.
b) Period of assignment
If the period of assignment is not stated, it shall be deemed to be
five years from the date of assignment.
c) Assignment and License
A license is an authorization of an act which, without such
authorization becomes infringement.
In essence a license is a grant of authority to do a particular
thing which otherwise could not have been done.
It amounts to a consent or permission granted by the owner of
copyright that the licensee could carry out a restricted act which
but for such permission could have been an infringement
Owner of copyright in an existing work or future work may grant
any interest in the right by license in writing signed by him or his
duly authorized agent (S. 30)
Transfer of ownership of the rights
Assignment leaves nothing in the grantor qua the right assigned
bestowing in the grantee the whole of the legal interest in the
right
Capacity to sue for infringement
A licensee cannot sue for infringement of copyright unless he joins
the copyright owner as a co plaintiff in the action.
Section 61 of the Act provides that in every civil suit or other
proceeding regarding infringement of copyright instituted by an
exclusive licensee, the owner of copyright shall be made a
defendant, unless the court otherwise directs.
In such situations the owner of the copyright can dispute the claim
of exclusive license. This provision thus protects the interests of
the right holders.
3. Examples of subsistence/ rights
a) Rights in a musical sound recording
A sound recording generally comprises various rights 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,. It is necessary to obtain the licences from each
and every right owner in the sound recording. This would, inter
alia, include the producer of the sound recording, the lyricist who
wrote the lyrics, and the musician who composed the music.
b) Owner of copyright in 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.
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c) Owner of the copyright in the case of a work produced
for valuable consideration at the instance of another
personIn 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.
4. Adaptation
In the law of copyrights the exclusive right of the author of a
literary project to reproduce, publish, and sell his or her work,
which is granted by statute, adaptation refers to the creation of a
derivative work, which is protected by copyright laws.
A derivative work involves a recasting or translation process that
incorporates preexisting material capable of protection by
copyright. An adaptation is copyrighted if it meets the requirement
of originality, in the sense that the author has created it by his or
her own proficiency, labor, and judgment without directly copying
or subtly imitating the preexisting material. Mere minor alterations
will not suffice
The Copyright Act defines the following acts as adaptations:
Conversion of a dramatic work into a non dramatic work
Conversion of a literary or artistic work into a dramatic work
Re-arrangement of a literary or dramatic work
Depiction in a comic form or through pictures of a literary or
dramatic work
Transcription of a musical work or any act involving
re-arrangement or alteration of an existing work.
The making of a cinematograph film of a literary or dramatic or
musical work is also an adaptation.
Copyright over news
There is no copyright over news. However, there is copyright over
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5.Registration Of Copyright
a) 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. Copies of the Act and
Rules can be obtained from the Manager of Publications,
Publication Branch, Civil Lines, Delhi or his authorised dealers on
payment. The procedure for registration is as follows:
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 ;
Separate applications should be made for registration of each
work;
Each application should be accompanied by the requisite fee
prescribed in the second schedule to the Rules ; and
The applications should be signed by the applicant or the
advocate in whose favour a Vakalatnama or Power of Attorney
(neither notarization nor consular legalization required) has been
executed. The Power of Attorney signed by the party and accepted
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b) Both published and unpublished works can be
registered. Three copies of published work may be sent along
with the application. If the work to be registered is unpublished, a
copy of the manuscript has to be sent along with the application
for affixing the stamp of the Copyright Office in proof of the work
having been registered. In case two copies of the manuscript are
sent, one copy of the same duly stamped will be returned, while
the other will be retained, as far as possible, in the Copyright
Office for record and will be kept confidential. It would also be
open to the applicant to send only extracts from the unpublished
work instead of the whole manuscript and ask for the return of the
extracts after being stamped with the seal of the Copyright Office.
If the work is a Computer programme, in addition to the above 3
Copies of the work in CD or Floppy Diskette must be provided.
c) Steps involved in getting copyright registration
certificate :
1. The application with complete details is filed.
2. Thereafter, the application is examined and objections, if any,
are raised.
3. The certificate is issued by the copyright office after the
objections, if any, are removed to the satisfaction of the
department.
When a work has been registered as unpublished and
subsequently it is published, the applicant may apply for changes
in particulars entered in the Register of Copyright in Form V with
prescribed fee.
6. Term of Copyright
The duration of copyrights varies from country to country. The
minimum duration of copyright protection under Berne Convention
is 50 years. European Union and for countries of the European
economic area and in the US the duration is 70 years. In India
copyrights are protected for a period of sixty years from the
beginning of the calendar year next following the year in which the
author dies.
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.
7. Performers Rights
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.
"Performance" in relation to performers right, means any visual or
acoustic presentation made live by one or more performers.
Rights of a performer
A performer has the following rights in his/her performance:
Right to make a sound recording or visual recording of the
performance;
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5 of 11 11/29/2012 5:13 PM
Right to reproduce the sound recording or visual recording of the
performance;
Right to broadcast the performance;
Right to communicate the performance to the public otherwise
than by broadcast.
Performers rights subsist for 25 years.
8. Protection of Foreign Works
The Indian Copyright Act today is compliant with most
international conventions and treaties in the field of copyrights.
India is a member of the Berne Convention of 1886 (as modified at
Paris in 1971), the Universal Copyright Convention of 1951 and the
Rights (TRIPS) Agreement of 1995. Though India is not a member
of the Rome Convention of 1961, the Copyright Act, 1957 is fully
compliant with the Rome Convention provisions. 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.The Berne
Convention and the TRIPS Agreement stipulate the subsistence of
copyright in original literary, dramatic, musical and artistic works;
cinematographic film and sound recordings. These classes includes
variety of works like books, pamphlets and other writings; lectures,
addresses, sermons; dramatic or dramatic-musical works,
choreographic works; musical composition, chirographic works;
drawing, painting, architecture, sculpture, engraving; and
lithography, photography, maps, plans, sketches, three
dimensional works, translations, encyclopedias and anthologies,
software codes, multimedia productions, etc.
9. Copyright I nfringements
Copyright infringement (or copyright violation) is the unauthorized
or prohibited use of works covered by copyright law, in a way that
violates one of the copyright owner's exclusive rights, such as the
right to reproduce or perform the copyrighted work, or to make
derivative works.
For electronic and audio-visual media, unauthorized reproduction
and distribution is also commonly referred to as piracy.
The copyright infringement occurs when a copyrighted work is
reproduced, distributed, performed, publicly displayed, or made
into a derivative work without the permission of the copyright
owner.
a) Civil remedies for copyright infringement
A copyright owner can take legal action against any person who
infringes the copyright in the work. The copyright owner is entitled
to remedies by way of injunctions, damages and accounts.
The District Court concerned has the jurisdiction in civil suits
regarding copyright infringement.
b) Copyright infringement: Criminal offence under the
copyright law
Any person who knowingly infringes or abets the infringement of
the copyright in any work commits criminal offence under Section
63 of the Copyright Act.
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The minimum punishment for infringement of copyright is
imprisonment for six months with the minimum fine of Rs.
50,000/-. In the case of a second and subsequent conviction the
minimum punishment is imprisonment for one year and fine of Rs.
one lakh.
Any police officer, not below the rank of a sub inspector, may, if he
is satisfied that an offence in respect of the infringement of
copyright in any work has been, is being, or is likely to be
committed, seize without warrant, all copies of the work and all
plates used for the purpose of making infringing copies of the
work, wherever found, and all copies and plates so seized shall, as
soon as practicable be produced before a magistrate.
c) J urisdiction
No court inferior to that of a Metropolitan Magistrate or a J udicial
Magistrate of the first class shall try any offence under the
Copyright Act.
d) Defenses to infringement
A defendant in an infringement action may rebut the presumption
of copying by a showing of independent creation. It is possible for
an author to create a work independently while bearing similarities
to another. If access is not established, there is no copying, even if
there is a striking similarity between the two works. For this
reason, corporations will destroy or return unsolicited mailings
from authors as a policy.Some acts that would otherwise be a
copyright infringement are excused through the concept of "fair
use." The statute states that use for purposes of criticism,
comment, news reporting, teaching (including multiple copies for
classroom use), scholarship, or research is fair use. As to works not
in these categories, the statute states that the factors to be
considered include the purpose and character of the use, including
whether it is of a commercial nature or for nonprofit educational
purposes; the nature of the copyrighted work; the amount and
substantiality of the portion used in relation to the copyrighted
work as a whole; and the effect of the use upon a potential market
for or value of the copyrighted work. This involves balancing the
interests of the copyright owner and the one copying the material.
6. Term of Copyright
The duration of copyrights varies from country to country. The
minimum duration of copyright protection under Berne Convention
is 50 years. European Union and for countries of the European
economic area and in the US the duration is 70 years. In India
copyrights are protected for a period of sixty years from the
beginning of the calendar year next following the year in which the
author dies.
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.
7. Performers Rights
COPYRI GHT LAW I N I NDI A
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2008 (281)
2007 (118)
7 of 11 11/29/2012 5:13 PM
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.
"Performance" in relation to performers right, means any visual or
acoustic presentation made live by one or more performers.
Rights of a performer
A performer has the following rights in his/her performance:
Right to make a sound recording or visual recording of the
performance;
Right to reproduce the sound recording or visual recording of the
performance;
Right to broadcast the performance;
Right to communicate the performance to the public otherwise
than by broadcast.
Performers rights subsist for 25 years.
8. Protection of Foreign Works
The Indian Copyright Act today is compliant with most
international conventions and treaties in the field of copyrights.
India is a member of the Berne Convention of 1886 (as modified at
Paris in 1971), the Universal Copyright Convention of 1951 and the
Rights (TRIPS) Agreement of 1995. Though India is not a member
of the Rome Convention of 1961, the Copyright Act, 1957 is fully
compliant with the Rome Convention provisions. 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.The Berne
Convention and the TRIPS Agreement stipulate the subsistence of
copyright in original literary, dramatic, musical and artistic works;
cinematographic film and sound recordings. These classes includes
variety of works like books, pamphlets and other writings; lectures,
addresses, sermons; dramatic or dramatic-musical works,
choreographic works; musical composition, chirographic works;
drawing, painting, architecture, sculpture, engraving; and
lithography, photography, maps, plans, sketches, three
dimensional works, translations, encyclopedias and anthologies,
software codes, multimedia productions, etc.
9. Copyright I nfringements
Copyright infringement (or copyright violation) is the unauthorized
or prohibited use of works covered by copyright law, in a way that
violates one of the copyright owner's exclusive rights, such as the
right to reproduce or perform the copyrighted work, or to make
derivative works.
For electronic and audio-visual media, unauthorized reproduction
and distribution is also commonly referred to as piracy.
The copyright infringement occurs when a copyrighted work is
reproduced, distributed, performed, publicly displayed, or made
into a derivative work without the permission of the copyright
owner.
a) Civil remedies for copyright infringement
8 of 11 11/29/2012 5:13 PM
A copyright owner can take legal action against any person who
infringes the copyright in the work. The copyright owner is entitled
to remedies by way of injunctions, damages and accounts.
The District Court concerned has the jurisdiction in civil suits
regarding copyright infringement.
b) Copyright infringement: Criminal offence under the
copyright law
Any person who knowingly infringes or abets the infringement of
the copyright in any work commits criminal offence under Section
63 of the Copyright Act.
The minimum punishment for infringement of copyright is
imprisonment for six months with the minimum fine of Rs.
50,000/-. In the case of a second and subsequent conviction the
minimum punishment is imprisonment for one year and fine of Rs.
one lakh.
Any police officer, not below the rank of a sub inspector, may, if he
is satisfied that an offence in respect of the infringement of
copyright in any work has been, is being, or is likely to be
committed, seize without warrant, all copies of the work and all
plates used for the purpose of making infringing copies of the
work, wherever found, and all copies and plates so seized shall, as
soon as practicable be produced before a magistrate.
c) J urisdiction
No court inferior to that of a Metropolitan Magistrate or a J udicial
Magistrate of the first class shall try any offence under the
Copyright Act.
d) Defenses to infringement
A defendant in an infringement action may rebut the presumption
of copying by a showing of independent creation. It is possible for
an author to create a work independently while bearing similarities
to another. If access is not established, there is no copying, even if
there is a striking similarity between the two works. For this
reason, corporations will destroy or return unsolicited mailings
from authors as a policy.
Some acts that would otherwise be a copyright infringement are
excused through the concept of "fair use." The statute states that
use for purposes of criticism, comment, news reporting, teaching
(including multiple copies for classroom use), scholarship, or
research is fair use. As to works not in these categories, the
statute states that the factors to be considered include the
purpose and character of the use, including whether it is of a
commercial nature or for nonprofit educational purposes; the
nature of the copyrighted work; the amount and substantiality of
the portion used in relation to the copyrighted work as a whole;
and the effect of the use upon a potential market for or value of
the copyrighted work. This involves balancing the interests of the
copyright owner and the one copying the material.
10. Exemptions
Subject to certain conditions, law allows any use of a work without
permission of the owner of the copyright. Some of the exemptions
are the uses of the work
for the purpose of research or private study,
9 of 11 11/29/2012 5:13 PM
for criticism or review,
for reporting current events,
in connection with judicial proceeding,
performance by an amateur club or society if the performance is
given to a non-paying audience, and
the making of sound recordings of literary, dramatic or musical
works under certain conditions.
11. Use of the "" symbol
Anyone who claims copyrights in a work can use copyright notice
to alert the public of the claim. It is not necessary to have a
registration to use the designations though it is highly advisable to
incorporate a copyright notice like the symbol, letter "c" in a circle
or the word "Copyright" followed by name of copyright owner and
year of first publication.
Posted by Deepak Miglani at 20:23
5 COMMENTS:
Dinah Menil said...
You know, you can find San Francisco criminal attorney
here
9:50 AM, J une 05, 2010
Megha said...
Thorough Work!
Got a good insight into the law.
9:08 AM, March 17, 2012
Sandeep said...
suppose any one create hack code of some one website
then hack website can be make copyright.....
Thanks!
12:14 AM, August 02, 2012
Sandeep said...
suppose create any website to hack another website then
can we make copyright to that site...
12:19 AM, August 02, 2012
mirzadi muntaha said...
this is a very interesting and informative account. Being a
law student, i got a lot of knowledge from it. this article
10 of 11 11/29/2012 5:13 PM
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Legal Point - Copyright Law in India

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04 J une, 2010

COPYRIGHT LAW IN INDIA

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