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Secure Creativity

Secure Creativity (Intellectual Property Right)

The origin of the term Intellectual Property (IP) can be traced to 19th century which was commonplace all across the globe. IP refers to a category of property which is intangible and include any creation of minds, such as literary, artistic, inventions, designs, symbols, names, images used in commerce. The main aim of intellectual property laws was to boost the creation in the variety of intellectual goods. This gave people rights in protecting their creativity and inventions for a limited period of time. The most well-known types IPs are trademark, copyright, patent and trade secrets.

Copyright meaning

Section 14, of the Indian Copyright Act,1957 defines copyright as a monopolistic right given to a creator for their original literary, dramatic, musical and artistic works that are fixed in a tangible form of expression. It is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. It gives the creator an exclusive right securing and protecting his work, for a limited period of time.

Copyright are believed to be a foster cultural diversity and creativity. It may be applied to a wide range of creative, intellectual, or artistic forms, or works. It covers only the form or manner in which they are expressed. It can also include fictional characters, poems, plays, musical composition, paintings, drawings, computer software, television broadcasts.

For example: there are copyrights over the characters of cartoons like Mickey mouse, Batman, Superman, and many more which prevents any person from copying the characters for their own use. Therefore, the person requires to seek permission form the original creator. Copyright is dissimilar as it allows two authors to share a copyright on identical works, only after determining that both the works are not alike and was not copied from the other.

Berne Convection for the protection of literary and artistic works administered by the World Intellectual Property Organization was first adopted in 1886 as an argument to honor the rights of all the authors who are nationals of countries that are party to the convection. Currently 179 countries have signed up the convention. It is applied to the nationals of one of the countries of the Union, to be precise the place where the work is first published in a country that is a member of the Union. This convection also provides an incentive for countries who are not a part of the Union to protect work by nationals of the countries of the Union.

There are 179 countries those have signed up to the Berne Convection. Any author from any country that is a signatory of the convection is awarded the same rights in all the other countries.

There is a list of actions which cannot be carried out without permission:

The right to authorize translations of the work.
The exclusive right to reproduce the work, though some provisions are made under national laws which typically allow limited private and educational use without infringement.
The right to authorize public performance or broadcast, and the communication of broadcasts and public performances.
The right to authorize arrangements or other types of adaptation to the work.
Translation of the work.
The exclusive right to adapt the work and alter it.

Works protected by copyright

Copyright laws protects two types of rights. First is economic rights which allow the true owners to derive financial reward generated from their work. Second is the moral rights which allow authors and creators to protect and preserve their work. Literary works (all text including computer software), musical works, dramatic works, pantomimes & choreography works, pictorial, graphic & sculptural works, motion pictures & other audiovisual, works, sound recordings, and architectural works. The owner of a copyright protected work decides how to use the work and can even prevent others from using it without permission.

Copyright may be licensed. Some jurisdictions which have certain classes of copyrighted work available for compulsory license. Under this anyone who wish to copy the work does not need the permission from the owner instead needs to file a proper notice and pay an established fee.

Copyright owner or holder

A copyright owner or copyright holder is a person or a company who owns any one of the exclusive rights of copyright in a work. Copyright ownership is separate from the work of the ownership.

Examples:

Literary- Author
Drama – Dramatist
Music – Composer
Artistic Work – Artist e.g.- Painter, Sculptor, Architect
Photograph – Photographer
Software Program – Person who creates the work
Cinematograph Film – Producer
Sound Recording – Producer

Duration of copyright

The duration of copyright protection for Literary, dramatic, musical and artistic works includes the lifetime of the author and fifty years from the end of the year in which the author dies. The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication.

For works created after January 1, 1978; the copyright protection lasts for the life of the author plus an additional 60 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.

Benefit of copyright

Public notice of ownership – been on record it dissuades others from making unauthorized use of the work. Owner can send a ‘cease’ notice to anyone who is copying the work.
Legal evidence of ownership – This provides shelter to the published work. It makes easy to prove the case of the owner in court. The onus to prove authenticity is on the creator.
Prevention of monetary loss – the most important benefit of copyright protection is preventing losses arising from copies being made of the original work. Violation of copyright registration is commonly known as ‘piracy’. ‘Pirated’ books, DVDs, music, videos can be seen in market which are downloaded illegally.
Motivation to create – Copyright law encourages an atmosphere of creativity and innovation. Everyone will create something new in order to make money and be fearless of work been copied.
Gives prestige – It provides the owner or holder the prestige that a certain work belongs to them. Thus, no one can illegally copy it.

Exclusive rights of owner

The owner’s bundle of rights includes these rights:

Reproduction
Distribution
Derivation
Performance
Paternity

Mandatory deposit of copies

The copyright law requires two copies of the best edition of the work to be submitted to the Copyright Office. It is required to be done within three months of the work published.

Procedure for filing copyright under Indian Copyright Act, 1957
Step 1 - Filling application. The owner of the work, or the agent needs to file an application either physically in the copyright office or through e-filing facility available on the official website (copyright.gov.in). A separate application is to filed with the registrar along with a requisite fee.

Step 2 – Examination. After the diary number is issued, there is a minimum 30 days of waiting period. During this period, the copyright examiner reviews the application in order to check and review any objections if occurred. There are 2 paths in which this process gets divided:

In case where no objection is raised, the examiner moves ahead to review and scrutinize the application. If there is no fault and all the essential documents and information is provided along with the application then, the applicant is given permission to move forward with the next step.

For any discrepancies letter of discrepancy is sent to the applicant. And a hearing is conducted by the registrar. After the discrepancy is resolved the applicant is free to move ahead with the next step.
In case objections are raised by someone against the applicant, letters are sent out to both the parties and is summoned by the registrar for hearing.
Upon hearing if the objection is rejected, then the application goes ahead for scrutiny.

And if the objection is not clarified, then the application is rejected and a rejection letter is sent to the applicant. And for such applicants, the copyright registration procedure comes to an end.

Step 3 - Registration. This is the final step, where the registrar might ask for more relevant documents. Once he is satisfied with the copyright claim made by the applicant, the Registrar of Copyrights would enter the details of the copyright into the register of copyrights. Therefore, Applicant receives the Register of Copyrights (ROC).

Copyright enforcement

Authority who can enforce copyright are:

police department and
custom authority.

It is generally enforced by the holder in a civil court, but there could be criminal enforcement as well. In majority of the jurisdiction the copyright holder must bear the cost of enforcing copyright petition. Copyright Act,1957 provides imprisonment from six months to three years and a fine of not less than Rs 50,000 in case the rights are infringed.

What is not protected under copyright laws.
Copyright does not include the protection of Ideas, titles, works prepared by the federal government and works that are in the public domain. Copyright does not protect ideas or concepts. To get the protection of copyright a work must be original.

Advantages of copyright to the business:

The statutory right to stop other people from copying.
The right to license the copying and distribution of the work
Right to use the symbol
Place a copyright date on the work
Has worldwide protection of the Indian territory
No renewal
Remedies under civil and criminal can be availed of simultaneously
Empowers customs and border protection to block imports

Disadvantages of copyright to the business

No statutory protection.
No right to use the symbol
No substantial statutory evidence to claim on originality of work
No statutory claim to recover profits, damages and compensation
Lack of evidence of the copyright date on the work
The term of protection will be uncertain
Difficulty in enforcing against malafide copiers.

Commercial business sector can have copyright on:

A database
Logo/diagram
Text of a marketing plan or business plan.
Numbers and calculations in a financial forecast
Architectural plans.
Layout and contents of website
A manual for the operation of equipment
Technical specifications for a device
Business proposals.

Information technology-based sector can have copyright on:

Computer software application
Software code for a programming tool
Software code for a website
Software code that manages a database

Limitations and exceptions

There are some jurisdictions where copyright law makes exceptions when the work is copied. If copyright material is used without permission, then one can take legal action against them and claim damages. For example, in United States the copyright law does not cover names, titles, short phrases or listings while there are protections available for trademarks and patents. There are some circumstances in which a person does not require permission from the copyright owner to use their work. These includes news reporting, education, research, quotation, archiving and preservation.

Fair use rule in copyright

A doctrine in the law of the United States limits the use of copyrighted material without having to first acquire permission from the copyright holder, here is:

Criticism and commentary,
News reporting,
Research and scholarship,
Nonprofit education use, and
Parody

Some important case laws:

Morality rights of author
Malik brothers made a reprised version of the song ghar se nikalte hi, the lyrics of the original version by Javed Akhtar
Javed Akhtar sent a notice for violation of his moral rights to paternity and integrity. The authorship of literary work has not been acknowledged and is subject to mutilation, distortion and modification which is prejudicial to his honor and reputation.
Ritika Pvt. Ltd. Vs. Biba apparels Pvt. Ltd. (recheck)
Argument: Plaintiff: claimed to be first owner of work.
Respondent: work falls under section 15(2) copyright act.
Judgement: No copyright infringement. If the design is applied to apparel more than 50 times then it loses all protection.
University of Oxford vs. Rameshwari Photocopy Services
Section 52 of the copyright act must be interpreted broadly and on favor of educational institutions, which otherwise should be interpreted narrowly. The single bench judge dismissed the suit of the plaintiffs and held that neither of the defendants infringed the copyrights of the plaintiff. Relying upon Section 52(1)(i) of the Copyrights Act, he held that the impugned actions of the defendant do not amount to copyright infringement.

Thus, it is held that there is no copyright infringement of any kind of reproduction copyrighted work, if such work is done on the instruction of the teacher and the work is a part of syllabus of the students.

The making of course packs by a university does not infringe the copyrights of the publishers. Copyright is only a statutory right and not a natural right. The term teacher mentioned in section 52 should be interpreted to include the entire educational institution.
R.G Anand vs M/S. Delux Films & Ors
Here it was determined that if the defendant’s work is a literal imitation of the copyright with a minute variation then it amounts to violation of the copyright. It is actionable if the copy must be a substantial and material one then it is concluded that the defendant is guilty of an act of piracy.
Sajeev Pillai v. Venukunnapalli & Anr
Issue: Whether the author of a work even after assignment of work will have special rights to claim authorship of his work provided under Section 57(1) of the copyright?
Facts: The appellant, Sajeev Pillai, a film director and a script writer claimed to have researched the history of the grand festival Mamankam and prepared script for a movie based on the same epic.

He met Venukunnapalli and signed a MoU with Kavya Film Company which was associated with Kunnapalli. Sajeev was initially appointed as the director but then his service was terminated and was replaced by someone else. The shooting of the movie was thereafter completed which Sajeev alleged was done by mutilating, distorting and modifying his script. An interim injunction application was also filed to restrain the respondents from releasing, publishing, distributing and exploiting the film and issuing pre-release publicity without providing adequate authorship credits to Pillai as per film industry standards.

Judgement: In deciding the issue, the court noted that the first sub-section of section57(1) provides the author to restrain third parties and the sub-section provides the author the entitlement to claim damages by such third party in respect of any distortion, mutilation or other modifications to his work or any other action, in relation thereto which would be prejudicial to his honor or reputation. This provided the appellant an unparalleled advantage in the case and that his assignment of the work would not exhaust the legal right to claim authorship over it.
YRF v Sri Sai Ganesh Productions
Issue: whether copyright can subsist in a cinematography film independent of the underlying works that it is comprised of?
Whether the expression under section 14 to ‘make a copy of the film’ mean making physical copy of the film only? And between the two films is there a substantial and material similarity?

Facts: A copyright infringement suit was filed against Sri Sai Ganesh Productions & Ors by Yash Raj Films Pvt Ltd on the grounds that it has copied the movie Band Baja Baarat produced under the YRF banner and producing Jabardasht which showcased substantial and material similarities in terms of theme, concept, plot, character, sketches, story, script, form and expression amongst other things.

Judgement: The court while determining the first issue relied on the judgement handed down by the Delhi High Court in the case of MRF Limited v. Metro Tres Ltd, in which the court held that copyright exists in the cinematographic film independent from other underlying works that come together to constitute it and that there is a requirement of originality to exist in cinematographic films which can be read into from section 13(1)(b) of the Copyright Act,1957 through Sections 13(3)(a) and 2(d) of the said Act even though it has not been explicitly mentioned.

The court while determining the second issue held that the expression ‘to make a copy of the film’ provided in Section 14(d)(i) of the said Act does not simply mean creating a physical copy of the film by process of duplication. Furthermore, as the films are protected just like original works, the court extended the test of originality set out in the case of R.G. Anand v. Deluxe films to distinguish between the two films on the basis of substance, foundation and kernal and understand the viewpoint of an average moviegoer as to whether they would have an unmistakable impression that one work was a copy of the other. In the instant case the court found that the defendants had copied the fundamental, essential and distinctive feature of the plaintiff’s film.

Conclusion
The copyright bargain: a balance between protection for the artist and rights for the consumer. Creativity is the most essential requirement for the development of the society. It encourages economic and social development of the society. The process of copyright registration is a length one but an important. It is best to get your copyright registered as it gives a long-term security to the work even after death.

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