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Copyright

The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, Copyright protects the expressions and not the ideas. There is no copyright in an idea.

Meaning of Copyright

Copyright is a right vested by the law to original creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.

Copyright law ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. The protection provided by Copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

In order to get a Copyright the author must have created an original work. A work means any of the following, namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a sound recording.

Copyright subsists throughout India in the following classes of works:
i. Original literary, dramatic, musical and artistic works;
ii. Cinematograph films;
iii. Sound recordings.
However, Copyright laws are enacted with necessary exceptions and limitations to ensure that a balance is maintained between the interests of the creators and of the community. To strike an appropriate and viable balance between the rights of the Copyright owners and the interests of the society as a whole, there are exceptions in the law. Hence, exploitation of work which is for social purposes such as education, religious ceremonies, and so on are exempted from the operation of the rights granted in the Act. Copyright in a work is considered as infringed only if a substantial part is made use of without permission of the author. More often than not, it is a matter of quality rather than quantity.

Use of a work without permission of the owner of the Copyright

Subject to certain conditions, the following is not deemed to be an infringement of the Copyright if the work is used for the following:
o for the purpose of research or private study,
o for criticism or review,
o for reporting current events,
o in connection with judicial proceeding,
o performance by an amateur club or society if the performance is given to a non-paying audience, and the making of sound recordings of literary, dramatic or musical works under certain conditions.
o In order to get a Copyright the author must have created an original work. A work means any of the following, namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a sound recording.

Copyright subsists throughout India in the following classes of works:
§ Original literary, dramatic, musical and artistic works;
§ Cinematograph films;
§ Sound recordings.

The First Owner of Copyright

Ordinarily the author is the first owner of Copyright in a work. An author
1. In the case of a literary or dramatic work the author, i.e., the person who creates the work.
2. In the case of a musical work, the composer.
3. In the case of a cinematograph film, the producer.
4. In the case of a sound recording, the producer.
5. In the case of a photograph, the photographer.
6. In the case of a computer generated work, the person who causes the work to be created.
Rights in a musical sound recording

there are many right holders in a musical sound recording. For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music, and the person or company who produced the sound recording.

As a sound recording generally comprise various rights. It is necessary to obtain the licenses from each and every right owner in the sound recording. This would, inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music.

Assignment of Copyright

The owner of the Copyright in an existing work or the prospective owner of the Copyright in a future work may assign to any person the Copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the Copyright or any part thereof. An assignment in writing signed by the assignor or by his duly authorized agent can be assigned to a third party. The assignment deed shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

Registration of Copyright

Acquisition of Copyright is automatic and it does not require any formality. However, certificate of registration of Copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of Copyright.

The procedure for registration of a work under the Copyright Act, 1957 is as follows:
1. Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
2. Separate applications should be made for registration of each work;
3. Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules ; and
4. The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed.
Both published and unpublished works can be registered. Copyright in works published before 21st January, 1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy Copyright. Three copies of published work may be sent along with the application. If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office.
When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee.

Term of Copyright

The general rule is that Copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60-year period is counted from the date of publication.

Acts Which Do Not Constitute Infringement

According to section 52, of the Copyright Act, following acts do not constitute infringement of d copyright:
1. a fair dealing with a literary, dramatic, musical or artistic work for the purposes of -
i). research or private study ;
ii). criticism or review, whether of that work or of any other work;

2. a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events -
i). in a newspaper, magazine or similar periodical, or
ii). by radio-diffusion or in a cinematograph film or by means of photographs;

3. the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding;

4. the reproduction or publication of a literary, dramatic, musical or artistic work in any work prepared by the Secretariat of a Legislature or, where the Legislature consists of two Houses, by the Secretariat of either House of the Legislature, exclusively for the use of the members of that Legislature;

5. the reproduction of any literary, dramatic or musical work in a certified copy made or supplied in accordance with any law for the time being in force;

6. the reading or recitation in public of any reasonable extrac6t from a published literary or dramatic work;

7. the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions, and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists:

8. the reproduction of a literary, dramatic, musical or artistic work-
i). by a teacher or a pupil in the course of instruction; or
ii). as part of the questions to be answered in an examination; or
iii). in answers to such questions;

9. the performance in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution, or of a cinematograph film or a record, if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution;

10. the making of records in respect of any literary dramatic or musical work, if -
i). records recording that work have previously been made by, or with the licence or consent of, the owner of the copyright in the work; and
ii). the person making the records has given the prescribed notice of his intention to make the records, and has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such records to be made by him, at the rate fixed by the Copyright Board in this behalf :

11. the causing of a recording embodied in a record to be heard in public by utilising the record,
i). at any premises where persons reside, as part of the amenities provided exclusively or mainly for residents therein, or ii). as part of the activities of a club, society or other organisation which is not established or conducted for profit;

12. the performance of a literary, dramatic or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious institution;

13. the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;

14. the publication in a newspaper, magazine or other periodical of a report of a lecture delivered in public;

15. the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such books is not available for sale in India;

16 the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access :

17. the reproduction or publication of -
i). any matter which has been published in any Official Gazette except an Act of a Legislature;
ii). any Act of a Legislature subject to the condition that such Act is reproduced or published together with any commentary thereon or any other original matter;
iii). the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature, unless the reproduction or publication of such report is prohibited by the Government ; iv). any judgement or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgement or order is prohibited by the court, the tribunal or other judicial authority, as the case may be;

18. the production or publication of a translation in any Indian language of an Act of a Legislature and of any rules or orders made thereunder —
i). if no translation of such Act or rules or orders in that language has previously been produced or published by the Government; or
ii). where a translation of such Act or rules or orders in that language has been produced or published by the Government, if the translation is not available for sale to the public :

19. the making or publishing of a painting, drawing, engraving or photograph of an architectural work of art;

20. the making or publishing of a painting, drawing, engraving or photograph of a sculpture, or other artistic work falling under sub-clause ( iii ) of clause (c) of section 2, if such work is permanently situate in a public place or any premises to which the public has access;

21. the inclusion in a cinematograph film of -
i). any artistic work permanently situate in a public place or any premises to which the public has access ; or
ii). any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters presented in the film.

22. the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work.:

23. the making of an object of any description in three dimensions of an artistic work in two dimensions, if the object would not appear, to persons who are not experts in relation to objects of that description, to be a reproduction of the artistic work ;

24. the reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed :

25. in relation to literary, dramatic, or musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein :

Civil remedy for infringement of Copyright

Where a copyright in any work has been infringed, the owner of the copyright is to be entitled to all such remedies by way of injunction, damages, and accounts or otherwise as may be conferred by the law for infringement of a copyright.

Author’s special rights

Independently of the author’s copyright and even after assignment wholly or partially, the author has the right:
(a) To claim authorship of the work, and
(b) to restrain and to claim damages in respect of any distortion, mutilation, modification or other act in relation to the work which has been done before expiration of the term of copyright if such things have been prejudicial to his honour or reputation.

Disclaimer: This information is of a general nature regarding the law. The readers are advised not to act upon this general information. Please take further and appropriate advice based on the facts of your case from The Indian Lawyer by logging a query. The Indian Lawyer disclaims its liability for any adverse acts taken by the readers based on this limited information only.