Copyright Law in India
What is Copyright?Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.
Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.
Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc.
Copyright protection is conferred on all Original literary, artistic, musical or dramatic, cinematograph and sound recording works. Original means, that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However it is always advisable to obtain a registration for a better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.
As per Section 17 of the Act, the author or creator of the work is the
first owner of copyright. An exception to this rule is that, the employer
becomes the owner of copyright in circumstances where the employee creates
a work in the course of and scope of employment.
One of the supreme advantages of copyright protection is that protection
is available in several countries across the world, although the work is
first published in India by reason of India being a member of Berne
Convention. Protection is given to works first published in India, in
respect of all countries that are member states to treaties and
conventions to which India is a member. Thus, without formally applying
for protection, copyright protection is available to works first published
in India, across several countries. Also, the government of India has by
virtue of the International Copyright Order, 1999, extended copyright
protection to works first published outside India.
Indian perspective on copyright protection:The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:
(A) Economic Rights:The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work.
In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work.
In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public. These rights are similarly available to the author of sound recording. In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.
(B) Moral Rights:Section 57 of the Act defines the two basic 'moral rights of an author. These are:
The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation.
The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be noted that 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 rights conferred by this section. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.
Indian Judiciary Response:The response of Indian judiciary regarding copyright protection can be grouped under the following headings:
Copyright Infringement:Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are
Thus, a person who innocently or even accidentally infringes a copyright
may be held liable under the Copyright Act of the U.S. and under the laws
of various other countries. The guilty intention of the offender can be
taken into account for determining the quantum of damages to be awarded
for the alleged infringement.
Contributory infringement:The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove
Vicarious Infringement:Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer's action, a plaintiff must show that the defendant
Thus, vicarious liability focuses not on the knowledge and participation
but on the relationship between the direct infringer and the defendant.
On-line copyright issues in India:The reference to on-line copyright issues can be found in the following two major enactments
(2) Information Technology Act, 2000 and on-line copyright issues:The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology:
The future of copyright in India:The copyright laws in India are set to be amended with the introduction of the provisions for anti-circumvention and Rights Management Information in the Indian copyright regime although India is under no obligation to introduce these changes as it is not a signatory to WCT or WPPT.
With the amendment of the Copyright Act in 1994, which came into force on 10 May 1995, the situation with regard to copyright enforcement in India has improved. According to Ramdas Bhatkal of Popular Prakashan, Bombay, "We had problems of piracy relating to medical textbooks before the law was amended. At that time we found that while the law may be on our side, it was necessary to get a court order for search and this meant that there was sufficient notice to the pirate to take defensive action before the court order could be implemented. Therefore we preferred to accept the situation and did nothing. Since the changes which make copyright violation a cognizable offence it has been possible to use the legal mechanism as a deterrent."
Section 64 of the Indian Copyright Act 1957 provides that "Any police officer, not below the rank of a sub-inspector, may, if he is satisfied that an offence under Section 63 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, wherever found, and all copies and 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."
"Copying a book is similar to stealing somebody's jewellery. Large scale organized copying is like robbing a jeweller's shop or a bank. But then, there is a major difference. In the case of a bank robbery the newspapers are full of sensational news and the whole might of the State, especially the police, jumps in to catch the culprit, there is pressure of public opinion even on the judge trying the case. The effect is electric.
On the other hand, in the case of a book pirate, the police justify their inaction by pointing to murder dockets; the State deflects the desperate appeals of Copyright owners with nonchalance and the judge sits with a `so what' attitude while the man on the street remains in stark oblivion.
"The copyright does not protect the idea but it does protect the skill and the labour put in by the authors in producing the work. A person cannot be held liable for infringement of copyright if he has taken only the idea involved in the work and given expression to the idea in his own way. Two authors can produce two different works from a common source of information each of them arranging that information in his own way and using his own language. The arrangement of the information and the language used should not be copied from a work in which copyright subsists."
Before I conclude, I must make it clear that despite the variety of cases given in this paper, there is not much piracy of books in India. By and large, to save their business interests, publishers and distributors try to enforce copyright to the best of their abilities. Yet, piracy hurts them hard because the books which get pirated invariably are the few with good margin and high demand. Deprived of the profits from such bestsellers the book industry starved of the much needed capital for growth and investment in literary works of significance but low sales potential, especially by up-coming authors. Harsher measures are therefore needed to curb piracy.
Another area of copyright infringement which needs to be tightened up relates to protection of author's rights vis-a-vis the assignee or the licensee. There is need to develop a model contract, too, which should also provide protection for the author's rights in the fast changing scenario of electronic publishing, Internet, etc.
The provisions of the abovementioned two enactments show that the Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. Thus, on-line copyright issues are also adequately protected, though not in clear and express term.
To meet the ever- increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the purposive interpretatio technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case.
Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the Intellectual Property Rights regime in this age of information technology. Till the 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 copyright infringement.
Article is Authored by: Mahendra Kumar Sunkar
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