Copyright

Copyright refers to the legal right of the owner of intellectual property. In simpler terms, copyright is the right to copy. This means that the original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work.

Copyright law gives creators of original material the exclusive right to further use and duplicate that material for a given amount of time, at which point the copyrighted item becomes public domain.

Copyright is a legal term describing ownership of control of the rights to the use and distribution of certain works of creative expression, including books, video, movies, music and computer programs. Historically, copyright law has been enacted to balance the desire of cultures to use and reuse creative works (thus creating “derivative work”) against the desire of the creators of art, literature, music and the like to monetize their work by controlling who can make and sell copies of the work.

To strike this balance, the exclusivity of control is almost always restricted to a set period of years, after which a copyright-protected work reverts to the public domain and may be freely used. Under current law in the U.S., works created after Jan. 1, 1978, are afforded copyright protection for the life of the author plus an additional 70 years. For anonymous, pseudonymous and corporate-owned works, a copyright lasts 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

The copyright holder is often a company or corporation. If a work is created as a component of employment (“work for hire”), then the copyright for the work defaults to the employer.

Copyright ownership is bounded by the territory of the jurisdiction in which it has been granted (a copyright granted by the United States is valid only within that country, for example), as well by certain specific exceptions. Much of international copyright law was brought into relative conformity with the Berne Convention for the Protection of Literary and Artistic Works (usually referred to as the Berne Convention), in 1886 (with numerous subsequent revisions over the decades). The World Intellectual Property Organization Copyright Treaty (also known as the WIPO Copyright Treaty or WCT) was adopted in 1996 to cover information technology and the internet, elements not directly addressed in the Berne Convention.

Copyright duration and public domain

Both these laws, along with current copyright legislation worldwide, call for protected works to enter the “public domain” after the copyright law’s stipulated term has passed. Works in the public domain may be used, copied and distributed with no restrictions under copyright law.

Copyright exceptions and fair use

Not every expression of an idea may be copyright protected. Copyright doesn’t protect:

• Product names
• Titles of works (such as book titles)
• Names of businesses and organizations
• Pseudonyms, including computer hacker “nyms.”
• Slogans, catchphrases, mottos and short advertising phrases
• Lists of ingredients, such as on product labels or as used in recipes

Some things on this list, such as product names, may be afforded protection under trademark law.

Even when a work is protected under copyright law, the copyright law allows certain exceptions where works may be used even when the copyright holder has otherwise restricted use. Some of these exceptions are a matter of practicality, such as allowing libraries to make Braille copies of books they own. In some cases, such as public venues that play music through jukeboxes, the copyright owner is compelled by the law to grant the jukebox owner a license at a predetermined fee.

One important set of exceptions is the allowance for making backup copies of digital works that are copyright protected.

The most important exception is “fair use,” known in some other international jurisdictions as “fair dealing.” Conceptually, fair use is a refinement of the basic balance copyright strikes between author and civil interests. It is in the public’s interest to have access to critical reviews of works, and in considering these works, the critic may include short excerpts of a work in order illustrate a point being made. Copyright laws also generally protect works of parody from copyright infringement claims, as is the use of works for educational uses.

The Copyright Act, 1957, along with the Copyright Rules, 1958, is the governing law for copyright protection in India.

Copyright laws serve to create property rights for certain kinds of intellectual property, generally called works of authorship. Copyright laws protect the legal rights of the creator of an ‘original work’ by preventing others from reproducing the work in any other way.

Kinds of Intellectual Property:

Modern copyright laws serve to protect a variety of intellectual property ranging from songs and jingles to computer software and proprietary databases. The intellectual property protected under copyright laws can be classified as follows:

Literary Works:

These cover published works including books, articles, journals, and periodicals, as well as manuscripts. Even adaptations, translations, and abridgements are taken as original works and are protected under copyright law. Very importantly, these also cover computer programs and computer databases.

Dramatic Works:

A dramatic work is a work capable of being physically performed. It need not be fixed in writing or otherwise. Some examples of dramatic works are a piece of recitation, choreographic work, elements of a dance or ballet, costumes, and scenery associated with a drama, etc.

Musical Works:

A musical work means a work consisting of music and it includes graphical notation of such a work. The words in a song and the music have separate rights and the rights cannot be merged.

Artistic Works:

Artistic works are works such as paintings, sculptures, drawings, engravings, photographs, and architectural works, irrespective of judgements on their artistic quality.

Cinematographic Films and Sound Recordings:

Cinematography covers any method used to record moving images, including video recording and recordings of short clips using webcams and cell-phones. Soundtracks of movies also come under cinematography. Similarly, stand-alone sound recordings are also protected under copyright laws.

Registration of Copyright:

Though the Indian Copyright Act provides for a procedure for registration of copyright, registration is not necessary for acquiring a copyright. In fact, it is not advisable to go through the trouble of registering a copyright.

In Indian laws, a copyright is created when the original work is created and unlike laws in the US, registering it does not confer any special rights. The particulars with the Registrar of Copyrights will serve as evidence of existence of the work on the date of registration. Many creators of original work use other methods to prove existence of their work on a particular date such as depositing manuscripts in a bank locker.

Copyright Protection:

There are four basic concepts central to the idea of copyright protection as discussed here.

Idea vs. Expression:

It is necessary to fix the boundary between the idea and the expression contained in the original work. It is important to note that copyright applies only to the expression and not to the idea. But what constitutes the idea and not the expression can be a source of great legal debate.

Originality:

To get protection under copyright laws, it is important to establish that the work originates from the author and is not a copied work.

Fixation:

Copyright can exist only if the work is represented in a material form. It is only if the book is written, the sound is recorded, or the painting or sculpture is executed, that the work is eligible for protection under copyright laws.

Fair Use:

Copyright holders are deemed to consent to fair use of their work by others. Fair use is not defined but can include use in the course of news reporting, commenting, scientific research, etc.

Copyright Term:

In most cases, the term of copyright is the lifetime of the author plus 60 years thereafter. There are some notable exceptions as given below:

1. Broadcasting organization has rights with respect to their broadcasts. The term of this right is 25 years from the beginning of the calendar year follow­ing the year in which the broadcast is made.
2. Performers have some special rights in relation to their performance. These rights are for a period of 50 years from the beginning of the calendar year following the year of the first performance.
3. In case of posthumous publications, the rights stand for a period of 60 years after the publication.

Infringement of Copyright:

A copyright grants protection to the creator of an original work and prevents such work from being copied or reproduced without consent. The creator of a work can prohibit anyone from

1. Reproducing the work in any form, such as print, sound, video, etc.,
2. Recording the work in compact disks, cassettes, etc.,
3. Broadcasting it in any form,
4. Translating it into other languages, and
5. Using the work for a public performance, such as a stage drama or musical performance.

A copyright is infringed when someone, without the permission of the copyright holder, does any of the above, which only the copyright holder has the exclusive right to do.

The Copyright Act provides for both civil and criminal remedies for infringements of copyrights. On proving an infringement, the copyright owner is entitled to remedy by way of injunctions and order for seizure and destruction of infringing articles. The offending parties may also be asked to pay damages.

The Registrar of Copyrights has the power to prevent the import of infringing copies. On receiving a complaint, the Registrar can enter ships, docks, or warehouses, housing the alleged infringing material and examine them. In case the infringing material is found, it is handed over to the copyright holder.

Copyright Protection for Computer Programs:

In 1994, the definition of the term literary work in the Copyright Act was amended to include ‘computer programs, tables and compilations, including computer databases.’

Owners of computer programs get protection under copyright laws. A computer program can be registered with the Registrar of Copyrights by giving the first 25 and the last 25 lines of the source code. Here again, it is preferred to establish date of development by submitting logbooks detailing development work, etc.

Making copies of legally obtained computer programs for purposes of making back-up copies as a temporary protection against damage or destruction is permitted. Knowingly making use of an infringing copy of a computer program is a punishable offence.

The penalty for such an offence is imprisonment (minimum of seven days and maximum of three years) and a fine (Rs. 50,000 to Rs. 2, 00,000). If the offender pleads and proves that he/she used the infringing copy for personal use and not in the course of trade, court is likely to take a lenient view of the matter and impose the minimum fine of Rs. 50,000.