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Neighboring Rights: The Impact and Significance in Copyright Law

It is not possible to segregate copyright and neighbouring rights so as to provide a separate legal regime for protection of neighbouring rights. International developments in this area of intellectual property have created so much trade interest that intellectual property organization and WTO stand together on this issue protection and compel the member countries to bring their domestic laws in conformity with international commitment that facilities trade.

The world looks ahead to WIPO webcasting treaty in order to see a bright dawn of the neighbouring rights protection regime. In this paper an attempt has been made highlight and identify protection regime for the neighbouring rights under the copyrights act 1957, in India. The paper also explains the concept of neighbouring rights its Indian context and the protection regime loopholes and remedies. A separate publication, Understanding Industrial Property, offers an equivalent introduction to the subject of industrial property, including patents for inventions, industrial designs, trademarks and geographical indications.

Scope of these rights

In India the copyright act 1957( as amended in 1999) the rules made under and international copy right order 1999, govern copyright and neighbouring rights.

Before disclosing the nice ties of neighbouring rights protection in india, it is pertinent to note that Indian law might require closer scrutiny and re looking in the light of recently concluded WIPO treaty on broadcasters right. The wipo standing committee on coyright and related rights has given shape to the world first webcasting treaty that rein forces mandates of rome convention in widest possible language.

Limitations and Exception to the right

There are several types of limitations and exceptions to copyright protection. First, certain categories of works are excluded from copyright protection. In some countries, works are excluded from protection if they are not fixed in a tangible form.

For example, a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. In some countries, the texts of laws as well as court and administrative decisions are excluded from copyright protection. Second, certain particular acts of exploitation that usually require the right owner's permission may, under circumstances specified in the law, be carried out without the owner's permission.

The two basic types of limitations and exceptions in this category are:
  1. free use, which carries no obligation to compensate the right owner for the use of the work without permission;
  2. non-voluntary (or compulsory) licenses, which require that compensation be paid to the right owner for non-authorized exploitation.

Benefits for Developing Countries

Finally, mention should be made of the relationship between the protection of copyright and related rights and the interests of developing countries. Many developing countries have vibrant, thriving cultural and creative industries in everything from music to visual arts, to video games and films. WIPO studies have shown that the culture and creative industries make significant contributions to developing country economies. Without protection for copyright and related rights, the economic benefits from these works would not always remain in or return to the country in which they originated. Therefore, protection of copyright and related rights serves the twin objectives of preserving and developing national culture and providing a means for commercial exploitation in national and international markets.

The interest of developing countries in the protection of copyright and related rights goes beyond development of domestic cultural industries into the realm of international trade and development. The extent to which a country protects IP rights is inextricably linked to that country's potential to benefit from the rapidly expanding international trade in goods and services protected by such rights. For example, the convergence of telecommunications and computer infrastructure leads to international investment in many sectors of developing country economies, including IP. Protection of copyright and related rights has thus become part of a much larger picture: it is a necessary precondition for participation in the system of international trade and investment.

The Role of WIPO

WIPO is an international organization dedicated to promoting creativity and innovation by ensuring that the rights of creators and owners of IP are protected worldwide, and that inventors and authors are recognized and rewarded for their ingenuity. As a specialized agency of the United Nations, WIPO provides a forum for its member states to create and harmonize rules and practices for protecting IP rights.

Many member states have protection systems that are centuries old, although those systems may require updating to address rapid technological change, while other countries continue to develop new legal and administrative frameworks to protect their patents, trademarks and copyright. WIPO assists its member states in developing these new systems through treaty negotiation, legal and technical assistance, and training in various forms, including in the area of enforcement of IP rights.

The field of copyright and related rights has expanded dramatically as technological developments have enabled new ways of disseminating creations worldwide through such means as satellite broadcasting, compact discs, DVDs, and streaming and downloading from the Internet. WIPO is closely involved in the ongoing international debate to shape new standards for copyright protection in cyberspace. 35 Understanding Copyright and Related Rights WIPO administers the following international treaties on copyright and related rights:
  • Berne Convention for the Protection of Literary and Artistic Works (1886)
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961) (administered with ILO and UNESCO)
  • Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms (1971)
  • Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite (1974)
  • WIPO Copyright Treaty (WCT) (1996)
  • WIPO Performances and Phonograms Treaty (WPPT) (1996)
  • Beijing Treaty on Audiovisual Performances (2012, not yet in force)
  • Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013) The WIPO Arbitration and Mediation Center provides services for the resolution of international IP disputes between private parties. Such proceedings can include contractual disputes (such as patent and software licenses, trademark coexistence agreements, and research and development agreements) and non-contractual disputes (such as patent infringement). The Center is also recognized as the leading dispute resolution service provider for disputes related to Internet domain names.

Ownership, Exercise and Transfer of Copyright

The owner of copyright in a work is generally, at least in the first instance, the creator of a work, i.e., the author. However, this is not always the case. The Berne Convention, in Article 14bis, contains rules for determining initial ownership of rights in cinematographic works. Certain national laws also provide that where a work is created by an author employed for the purpose of creating that work, the employer, not the author, is the owner of the copyright in that work.

As noted above, however, in general moral rights belong to the individual author of a work regardless of who owns the economic rights. The laws of many countries provide that the initial right owner may transfer all economic rights in a work to a third party, although often moral rights cannot be transferred. Authors may transfer the economic rights in their works to individuals or companies best able to market them, in return for payment.

Such payments are often made dependent on actual use of the works and are referred to as royalties. Transfer of copyright may take one of two forms: assignment and licensing. An assignment is a transfer of a property right. Under an assignment, the right owner transfers the right to authorize or prohibit certain acts covered by one, several or all rights under copyright.

The person to whom the rights are assigned becomes the new copyright owner or right holder. Copyright rights are divisible, so it is possible to have multiple right owners for the same or different rights in the same work. In some countries, an assignment of copyright is not legally possible, and only licensing is allowed.

Licensing means that the copyright owner retains ownership but authorizes a third party to carry out certain acts covered by the economic rights, generally for a specific period of time and for a specific purpose. For example, the author of a novel may grant a publisher a license to make and distribute copies of the novel.

At the same time, the author may grant a license to a film producer to make a film based on the novel. Licenses may be exclusive, with the right owner agreeing not to authorize any other party to carry out the licensed acts; or non-exclusive, which means the right owner may authorize others to carry out the same licensed acts. A license, unlike an assignment, does not generally convey the right to authorize others to carry out acts covered by economic rights.

Taking reference for the international protection regime of copyright and related righs it becomes pertinent to state that on the international level.

The area of neighbouring rights needs enhanced protection under the Indian legal regime of copy rights. It is manifest that proposed WIPO treaty on webcasting would definitely influence the Indian legal on parameters of neighbouring rights protection and Indian law shall accommodate he changes perpetuated by technological development through passage of time.


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