COPYRIGHT

COPYRIGHT

Introduction

Copyright is a bundle of exclusive rights given by the law to the creators of original works. It is a form of intellectual property protection granted by law. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work. 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

The main goals of copyright are: –

• To encourage the development of culture, science and innovation
• To provide a financial benefit to copyright holders for their works
• To facilitate access to knowledge and entertainment for the public.

Copyright provides a framework for relationships between the different players in the content industries, as well as for relationships between rights holders and the consumers of content. Copyright is a form of Intellectual Property, along with trademarks and patents in all countries, and other creations (such as trade secrets, database rights, rights of publicity and the like) that may vary from country to country.

1. Indian Copyright Act, 1957

Copyright law protects expressions of ideas rather than the ideas themselves. It protects original works of ownership. It gives an exclusive right to do or authorize others to do certain acts in relation to literary, dramatic, musical, and artistic works, cinematography, and sound recordings. Computer programs are also included in literary works. Authors of Computer programs, and broadcasting organizations are to be given the right to authorize or prohibit the commercial rental of their works to the public. These similar exclusive rights also apply to the films.  The Copyright Act, 1957, along with the Copyright Rules, 1958, is the governing law for copyright protection in India. After independence, the Indian Copyright Act was the first law which was enacted from the provisions of the Berne Convention.

Objectives:

The Indian Copyright Act, 1957 is enacted with the following two main objectives:

1. Encouragement to the Original Work: 

The main objective of the Copyright Act is to encourage authors, composers, artists, and designers to create original works by rewarding them with the exclusive right for a limited period (usually for the life of the originator plus 50 years) to exploit the work for monetary gain. The economic exploitation is done by licensing such exclusive rights to the entrepreneurs like publishers, film producers and record manufacturers for monetary consideration. In reality, people who economically exploit the copyright are the greater beneficiaries of the copyright law than the creators of works of copyright. The publishers and authors of books are such examples.

2. Protection to the Originator:

The objective of copyright law is also, in essence, to protect the author or the creator of the original work from the unauthorized reproduction or exploitation of his/her materials. The right also extends to prevent others from exercising without authority any other form of right attached to copyright, for example, in the case of literary work, the right of translation, adaptation or abridgment. In recent times, with the rapid advance of technology, copyright infringement in the form of ‘piracy’ has become a serious problem of an international character. This is because technological progress has made the reproduction of copyrighted material easy and cheap. Accordingly, Indian copyright owners can protect their copyright in almost any country in the world. The appropriate actions taken under the Copyright Act 1957 can stop the infringement of copyright. Infringement of copyright is also an offense punishable with imprisonment and fine.

2. Development of Copyright Laws in India 

The Indian Copyright law was developed in 3 phases:

1. Early Phase: – In 1911, the earliest statutory law on copyright was made under the administration of British rule. The provisions of the Berne convention were followed. During that phase, the term of copyright was for the lifetime of the author plus 7 years after his death and the government could grant a compulsory license to publish a book. The registration was also made necessary in 1914.

2. Modern Phase: – Copyright Act of 1911 was again amended in 1914 and it was also called modern copyright legislation. For the very first time criminal sanction was introduced in act for infringement of copyright. The term of the copyright was fixed for 10 years from the date of its first publication. This act remained applicable until replaced by Copyright Act, 1957.

3. 1957 Phase: – The Act was enacted after the independence of the nation from British rule. It was the first enactment of intellectual property laws. It came into force on 21st January 1958. Major provisions of act were adopted by the Berne convention of protection of literary and artistic work, 1886.

This act is amended 6 times till now to align with rapid changes in society and provisions of international treaties i.e. Berne Convention, UCC, TRIPs Agreement.

3. Subject matter of Copyright, Economics, and Moral Rights 

Modern copyright laws serve to protect a variety of intellectual property ranging from songs and jingles to computer software and proprietary databases. All subject matters protected by copyright are called ‘works’. Thus according to Section 13 of The Copyright Act 1957, it may be subjected to the following works: 

Clause (a) of this Section 13 provides the definition of original work whereas clause (b) and (c) provides secondary works. 

1. Primary Works

1. Original Literary Work, 
2. Original Dramatic work, 
3. Original Musical work, 
4. Original Artistic Work, 

2. Secondary Works

1. Cinematography films, and 
2. Sound recordings.

1. Original Literary Works:

Section 2(o) of the Copyright Act, 1957 provides an inclusive definition of word literary works according to which the literary work includes computer programming, tablets, and compilations including computer database. 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. Section 13(a) classify literary works in the primary work. 

Case: Macmillan & Co. v. K.J Cooper

Facts: Plaintiff’s book consisted of selected passages from Plutarch’s life of Alexander the Great, joined together by a few words to give a different appearance. The book also contained an introduction and notes useful for education. A similar book was published by the defendants with notes. The original work contained 40,000 words while the defendants had copied 20,000 words and 7000 words in notes.

Issue: Whether the defendants work infringed the copyright in the plaintiff’s works?

Held: Defendants work infringed the copyright

2. Original Dramatic Works:

According to section 2(h) of the Copyright Act, 1957, the dramatic work includes any piece for recitation, choreographic work or entertainment in dumb shows, the scenic arrangement or acting form which is fixed in writing or otherwise but does not include a cinematographic film. Since the definition is an inclusive one, the other things fall within the general meaning of dramatic work, and may also be covered by the definition.

Case: Academy of General Education Manipal v. Malini Mallya

In this judgement the court shows a clear difference between literary and dramatic work. The difference between the two rests on the fact that literary work allows itself to be read while a dramatic work “forms the text upon which the performance of the plays rests.” A dance performance will not be covered under copyright work but under dramatic work.

Case: Creation Records v. New Group Newspaper

It was held that a photograph that involves no movement or action cannot be treated as dramatic work. Copyright of Dramatic work can in form of Adaption of Dramatic work. Adaptation work means the modification of that work in some other form.

3. Original Musical Works:

According to section 2(p) of the Copyright Act, 1957, musical work means any work consisting of music and includes any graphical notion of such work, but does not include any words or any action intended to be sung, spoken or performed with the music. The words in a song and the music have separate rights and the rights cannot be merged. In order to qualify for copyright protection, a musical work must be original. 

Example:- Famous song “Yaaram” which is written by Gulzar and composed by Vishal Bharadwaj. The copyright of the lyrics will belong to Gulzar and the musical composition will be of the composer Vishal Bharadwaj.

4. Original Artistic Works:

According to the section 2(c) of the Copyright Act, 1957, the artistic work includes any painting, sculpture, drawing, engraving photograph of any work possessing artistic qualities. However, it also includes the architecture and artistic craftsmanship of such works. 

Case: Associated publishers vs Bashyam

Facts: A portrait of Mahatma Gandhi was made based on two photographs.

Held: A portrait based on photographs will be entitled to copyright if it produced a result from the photograph and the portrait itself is original.

4. Rights of Copyright Holder

In the Copyright Act, 1957, the owner possesses the rights which are to prevent others from using his works in certain ways and to claim compensation for the usurpation of that right. In this Act, there are two types of rights given to the owner:

1. Economical rights
2. Moral rights.

Economic Rights

Section 14 of the Copyright Act, 1957 defines the scope of copyright. It provides a detailed list of exclusive rights granted to the copyright holder. For example: Literary, dramatic, and musical works: The right to reproduce the work, issue copies to the public, perform the work publicly, make any cinematograph film or sound recording in respect of the work, and make translations or adaptations of the work.

Artistic works: The right to reproduce the work in any material form, including depiction in three dimensions of a two-dimensional work and vice versa, issue copies to the public, include the work in any cinematograph film, and make adaptations of the work.

Section 51 deals with infringement of copyright, providing that copyright in a work is infringed if any person, without a license from the owner, does anything that the owner has the exclusive right to do.

Moral Rights

Section 57 of the Copyright Act, 1957, outlines the moral rights of the author:

• Right to claim authorship: The author of a work shall have the right to claim authorship of the work, and in particular, to restrain or claim damages in respect of any distortion, mutilation, or other modification of the said work, or any other action in relation to the said work which would be prejudicial to his honor or reputation.

• Right to restrain or claim damages: Even after the assignment of the copyright, the author retains the right to restrain or claim damages for any distortion, mutilation, or other modification of the work that would be prejudicial to his honor or reputation.

5. Authorship and Ownership in Copyright

In the case of literary or dramatic composition, the author, In the case of musical work, the musician, In the case of creative work apart from photography, the artist, In the case of photographic work, the artist, In the case of cinematographic or recording work, the producer, In case of any work generated by any computer virus, the one who created. However, this provision provided to bound exception: In case of creation is made by the author underemployment of the proprietor of any newspaper, magazine or any periodic, the said proprietor, In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made for the valuable consideration of any person, such person, In case of a work done in the course of the author’s employment under the contract of service, such employer. In case of address or speech delivered on behalf of another person in public, such person, In the case of government works, the government, In the case of work done under direction and control of public undertaking such public undertaking, and In the case of work done in which provision of Section 41 apply, concerned international organizations.

6. Infringement and Remedies

Where a person intentionally or unintentionally infringes the rights of the copyright holder, the holder may be subject to the following remedies available under this Act. 

1. Civil remedies

These remedies are given under Section 55 of the Copyright Act, 1957 which are:

• Interlocutory injunction

This is the most important remedy against the copyright infringement, it means a judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from commencing or continuing such act, or is commanded to restore matters to the position in which they stood previous to the relation. Thus for granting the interlocutory injunction, the following three factors are considered as necessary: Irreparable injury, it is difficult to decide and determine on a case by case basis. Some examples of it include- loss of goodwill or irrevocable damages to reputation, loss of market share.

• Mareva injunction

This is a particular form of the interlocutory injunction which restrains the defendant from disposing of assets that may be required to satisfy the plaintiff’s claim or for removing them from the jurisdiction of the Court.

• Anton Piller order

This order is passed to take into possession the infringed documents, copies and other relevant material of the defendant, by the solicitor of the plaintiff. This order is named after the famous case of Anton Piller KG v/s Manufacturing Process Ltd, 1976. In this case, the plaintiff Antone Piller, the German manufacturer is successful in passing ex-parte awards of restraining the use of his copyrighted products against the defendant.

• John Deo’s order

In this order, the Court has the power to injunct rather than those impeded in the suit, who may be found violating the rights in the field of copyright. Thus this order is issued against the unknown person, who has allegedly committed some wrong, but whose identities cannot entertain the plaintiff.

2. Pecuniary remedies

There are three types of pecuniary remedies provided:

• An account of profit, which lets the owner seek the sum of money made, equal to the profit made through unlawful conduct.
• Compensatory damages, which let the copyright owner seek the damages he suffered.
• Conversational damages, which are assessed to the value of the article.

3. Criminal remedies

For infringement of copyright, the criminal remedies provided under Section 63:

• Imprisonment, not less than 6 months which may extend up to 3 years;
• Fine may not be less than 50,000 which may extend up to 2,00,000;
• Search and seizure of copyrighted goods; and
• Delivery of copyrighted goods to the copyrighted owner.

In the case of repeat offenders, minimum punishment terms of 1 year and fine of 1 lakh however, the highest punishment will be the same as the first time offender.

7. International Copyright Orders 

Chapter IX of the Indian Copyright Act, 1957 describe the provisions of international copyright. Section 40 states the powers to extend copyright to foreign works and section 42 govern the provisions as to works of certain international organizations.

Power to extend copyright to foreign works are as follows –

The Central Government may, by order published in the Official Gazette, direct that all or any provisions of this Act, shall apply.

(a) To published work first within the territory of India and then outside

(b) To unpublished works, the authors whereof were at the time of the making of the work, subjects or citizens of a foreign country to which the order relates, in like manner as if the authors were citizens of India.

(c) In respect of domicile in any territory outside India to which the order relates in like manner as if such domicile were in India

(d) To any work of which the author was at the date of the first publication thereof, or, in case where the author was dead at the date, was at the time of his death, a subject or citizens of foreign country to which the order relates in like manner as if the author was a citizen of India at that date or time.

According to section 42 of the act, it provides power to restrict rights in works of foreign authors first published in India – If it appears to the Central Government that a foreign country does not give or has not undertaken to give adequate protection to the works of Indian authors, the Central Government may, by order published in the Official Gazette, direct that such of the provisions of this Act as confer copyright on works first published after the date specified in the order, the authors whereof are subjects or citizens of such foreign country and are not domiciled in India, and thereupon those provisions shall not apply to such works.

8.  Digital Copyrights

In the digital age, copyright law faces new challenges due to the ease with which digital works can be copied, shared, and distributed. Digital copyrights aim to protect creators of digital content, including software, music, films, and literary works, by granting them exclusive rights over their creations. However, enforcement is complicated by the pervasive nature of the internet, where unauthorized distribution and piracy are rampant. Issues such as the difficulty of tracking infringers, the rapid spread of pirated content, and the jurisdictional challenges of pursuing legal action across borders complicate enforcement efforts. Additionally, the balance between protecting copyright holders’ rights and ensuring public access to information and fair use is a contentious area. Technological measures like Digital Rights Management (DRM) and legislative frameworks like the Digital Millennium Copyright Act (DMCA) have been developed to address these issues. Digital Right Management includes techniques which have been developed to control duplication, modification and distribution of original works. The authors or the creators of the original works contend that DRM techniques are necessary in order to protect their interest by preventing free and unauthorized copying and distribution of their work.

However there are few who support the view that DRM techniques pose unnecessary hurdles for the public and impede the way of innovation and creativity by not letting others from being motivated by the original work of others. Many techniques have been developed to protect the original work like digital watermarking, access and copy controls etc. However, despite the fact that these techniques have been incorporated in the legislations, regulation and protection of original works in the digital environment remains a goal that is yet to be achieved. It is very important that ideas should be available to the general public so that the flow of creativity must not be blocked. However creators and authors must always be incentivized for their efforts. Hence the interest of both must be kept in mind while enacting and implementing DRM techniques.

• Strengthening of Border Measures

Section 53, dealing with importation of infringing copies, has been substituted with a new section providing detailed border measures to strengthen enforcement of rights by making provision to control import of infringing copies by the Customs Department, disposal of infringing copies and presumption of authorship under civil remedies.

• Protection of Technological Measures

The new section 65A, introduced for protection of technological protection measures (TPM) used by a copyright owner to protect his rights on the work, makes circumvention of it a criminal offence punishable with imprisonment. As a result, any person who circumvents an effective technological measure applied for the protection of any of the rights, with the intention of infringing such rights, shall be punishable with imprisonment, which may extend to two years and shall also be liable to fine. The rationale is to prevent the possibility of high rate infringement (digital piracy) in the digital media. This amendment also clarifies the problem of circumvention impacting the public interest on access to work facilitated by the copyright laws. Sub-section (2) permits circumvention for specified uses.

• Digital Rights Management Information

Section 65B has been introduced to provide protection of rights management information, which has been defined under clause (xa) of section 2. This amendment is intended to prevent the removal of the rights management information without authority and distributing any work, fixed performance or phonogram, after removal of rights management information. As a result, any unauthorized and intentional removal or alteration of any rights management information is a criminal offence punishable with imprisonment, which may extend to two years and fine. The rationale of the protection emanates from the practice in the digital world of managing the rights through online contracts governing the terms and conditions of use. The protection of technological measures and rights management information were introduced in WCT and WPPT as effective measures to prevent infringement of copyright in digital environments. The introduction of Sections 65A and 65B is expected to help the film, music and publishing industry in fighting piracy.

Conclusion

Copyright law in India, governed by the Copyright Act, 1957, plays a crucial role in protecting the rights of creators and ensuring that they receive due recognition and compensation for their work. The framework of economic and moral rights provided by the Act ensures a comprehensive protection mechanism for authors, artists, and other content creators. Economic rights allow creators to commercially exploit their work, while moral rights safeguard their personal and reputational interests, maintaining a balance between economic benefit and personal connection to the work. Despite the robust legal framework, the advent of digital technology and the internet has introduced new challenges in the enforcement of copyright laws. Digital piracy, unauthorized distribution, and difficulties in tracking infringers have complicated the protection of digital content. Legislative measures such as the Information Technology Act, 2000, and amendments to the Copyright Act aim to address these issues, but enforcement remains a significant hurdle. The Indian legal system continues to evolve to meet these challenges, striving to strike a balance between protecting the rights of copyright holders and ensuring public access to information. Initiatives such as the National IPR Policy aim to foster innovation and creativity while promoting respect for intellectual property rights.

Looking ahead, the effective implementation of copyright laws, coupled with public awareness and cooperation from digital platforms, will be essential in addressing the challenges posed by the digital age. By continuing to adapt and refine its legal framework, India can ensure that the rights of creators are protected, fostering a thriving environment for innovation and cultural growth.