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Copyright: An important element of Intellectual Property Rights

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market place. IPR gives ownership rights to intellectual assets and are intangible in nature. IPR gives exclusive rights to inventor or creator for their valuable creation or invention. The main objective of IPR is to protect the invention and to give reward for his/her creative endeavor. IPR encourages and stimulate the creation of talented creators.

Intellectual Property is any innovation, unique name, symbol, logo or design used commercially. Copyright is one of the important types of Intellectual Property. The Copyright Act 1957 provides copyright protection in India and grant copyright protection in two forms as Economic rights of the author and Moral rights of the author. This article explains the classification of Intellectual Property, Copyrights and related rights, Copyright duration and few Copyright infringement cases.

Introduction:
In the world of globalization, it is utmost important to be ahead in innovations, technologies and trade. India is well known for its intellectual skills in various fields such as software engineering, satellite technology, Moon, Mars, Jupiter mission and other technological areas. However, India lags behind in filing the patents, industrial designs, trademarks and copyrights. This is very alarming situation for India, as development of any society is directly related to IPR and its policy frameworks.

The main reason behind this situation may be the lack of IPR awareness. Considering this situation, India has taken a major step in 1995 and became signatory to the Trade Related Intellectual Property Rights (TRIPS) Agreement of the World Trade Organization (WTO). The TRIPS agreement regime has emerged as the basic framework for Intellectual Property Rights across the world. TRIPS agreement plays a significant role in resolving disputes over Intellectual Property. Every member of WTO has to include TRIPS provisions in their domestic Intellectual Property legislations.

As an impact of this movement, India has strengthened its participation in the international patent system in last fifteen years. India has filed 1583 international patent applications in 2018 with the World Intellectual Property Organization (WIPO) and registered highest growth (27%) among countries in patent applications.

Intellectual Property And Their Classification

The term Intellectual Property gained momentum after the establishment of World Intellectual Property Organization (WIPO) in 1967 [1-4]. Further, WIPO becomes one of the agencies of United Nation in 1974. The main objective of WIPO is to develop a balanced and accessible international Intellectual Property system and to regulate various policies concerned to IPR across the world.

According to WIPO, Intellectual Property (IP) refers to €˜creations of the mind, such as invention, literary and artistic work, designs, symbols, names and images'. IP is protected by law which enables people to receive recognition and get financial benefits from what they have invented or created.

Intellectual Property Is Classified In Six Types:

  1. Patent

    Patent is an exclusive right granted to inventor by concerned government office for his/her novel technical invention [5]. In exchange of this right, the patent owner has to make his/her invention publicly available. The invention can be used by others with the permission of patent owner. To get the patent of any invention, it has to fulfill main three criteria such as Usefulness, Novelty and Non-obviousness. The significance of all these terms is explained in patent act. According to the Section 3 of Indian Patent Act 1970 [6], Frivolous invention, invention against the natural laws, inventions which are not fair to health of human, plant, environment, invention related to atomic energy are not patentable. The initial duration of any patent is 20 years according to Indian Patent act 1970.
     
  2. Trademark

    Trademark is already in use from ancient world. A trademark can be a sign or logo which distinguishes the goods or services of one enterprise from other enterprises. Trademark helps company to make their recognition, reputation amongst the customers. Most of the times, customers rely on trademark and buy products without inspecting its quality [7-8]. There are certain criteria for trademark registration as per the UK Trademarks Act, 1994. According to Indian trademark act, any mark which is distinctive and capable of distinguishing goods and services can be registered as a trademark [9]. In India, the initial term of trademark registration is for 10 years, after tenure, it has to be renewed from time to time.
     
  3. Geographical Indications (GI)

    Certain agricultural products have special qualities which are influenced by geographical climate or soil. Such products can register under GI. WIPO defines the term GI which includes all exiting means of protection of names, symbols or place as an origin of a product [10]. Well known examples of GI are Havana, Darjeeling tea, Arabian horses, Alphanso mangos, Nagpur orange, Basmati rice etc. In India, GI can be registered under Act 1999 and rules 2001 at Chennai. The duration of GI is 10 years, after tenure renewal is required.
     
  4. Industrial Designs

    According to WIPO, an industrial design can comprise of ornament or aesthetic aspect of an article. Design may consist of three dimensional features such as shape or surface of an article or two dimensional features such as patterns or lines or color. Layout design of semiconductor integrated design is one of the examples of industrial design which can be registered. Indian Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000 protects an electronic industry design which is in compliance with TRIPS agreement [11]. Any layout which is original and inherently distinctive can be registered as per this act for 10 years. This act was implemented by Department of Information Technology under Ministry of Information Technology.
     
  5. Trade Secrets

    Trade secrets are Intellectual Property Rights on confidential information which may sold or licensed. Any invention which is not patentable but useful for business and provide financial benefits can be kept as trade secret. The technological information or process such as recipe, idea, software, formulas, maps, or any commercial information or secrete in form any data compliance or data bases, financial information can be kept as trade secret [12]. However, the process of evolving a trade secret takes years of research and skills. The formula of Coca-Cola is a very popular example of trade secret. Various countries have specific rules for trade secret. TRIPS recognize trade secret under common law [13-14].
     
  6. Copyright

    Copyright protects the rights of creators for his/her own literary and artistic works. The term copyright refers to the €˜Right to Copy' which is available only to the author or the creator. Thus, any other person who copies the original work is treated as an infringement under Copyright Act. Copyright protects the expression of an idea and not the content or idea as such. The idea is protected under the Patent law and not under Copyright Act.

Under Copyright, following literary and artistic works are covered [15]:

  • Musical work: songs, choruses, solos, band, orchestras etc.
  • Artistic works: painting, drawings, sculpture, architecture, advertisements etc.
  • Photographic work: landscapes, fashion or event photograph, portraits etc.
  • Motion pictures: films, drama, documentary, television broadcasting, video tape, DVDs.
  • Computer programs: Computer programmes, software and their related databases etc.

In India, Intellectual Property is governed under the Patent Act 1970, Trademarks Act 1999, Copyright Act 1957, Designs Act 2001 etc.

History of Copyright Act in India

The law of Copyright was spread in India over three phases. The law was introduced during the reign of British in 1911. The second phase of this law was introduced in 1914. It was similar to the British Copyright Act 1911. The major change in this act was the criminal sanction for infringement. Then this law was constantly amended and third phase of this law was introduced by independent Indian in 1957 which has the provisions of Berne Convention. India is following this Copyright Act 1957 till date.

As per the Indian Copyright Act 1957 [16], copyright is valid only within the borders of India. To secure the protection in foreign countries, India has become a member of the international conventions on copyrights and signs agreement with Berne Convention for the Protection of Literary and Artistic works, Universal Copyright Convention, Multilateral Convention for the Avoidance of double Taxation of Copyright Royalties and TRIPs. India evolves many changes in the Intellectual Property regime since 1995.

Copyright and related rights

After completion of good quality work, automatically one can get its copyright. Hence it is not mandatory to register copyright. However, registration of copyright provides many benefits to the creator. Copyright can give evidence and prove that copyright exist and creator is genuine owner of it [17-18].

The owner of the Copyright has following rights:

Right of Reproduction

Owner of Copyright can have right of reproduction of his work. No other person except the author shall make copies of the work or part of the work in any form without the permission of the copyright owner.

Right of Communication

Communication to the public means making any work available to public is the copyright of the author. Any work for example a film cannot be made available to public without permission of the author if it is registered under copyright act.

Right of Adaption

Adaption or changes or alterations is the preparation of new work in different manner based on exiting work. The Copyright Act defines right of adaption to conversion of a dramatic work into a non-dramatic work, to the conversion of literary or artistic work into a dramatic work, to the rearrangement of a literary or dramatic work, transcription of a musical work or any act involving rearrangement or alteration of an existing work. According to this right, only idea is taken and then changes were made according to the requirements. For example, films were produced based on Five point someone or Half girlfriend written by Chetan Bhagat. Here, idea from the book is taken and not the whole expression is copied.

Right of Translation

The owner has full right to translate his work into other language. Any other person doing it without the permission of owner is the infringement of the right. The person who is interested in translating the copyrighted work should get permission of the owner before translation.

Moral Rights

Moral rights are assigned only the individual authors and in many countries they are related to economic rights. Moral rights covered the right to claim authorship of a work and the right to object to any distortion or modification of a work. The moral rights remain with him even after assignment of the copyright.

According to the Indian Copyright Act 1957, other rights related to various types of copyright stated in handbook [19] are as follows:

Rights in dramatic and artistic work

copyright to dramatic or artistic work means exclusive rights to reproduce the work, to communicate the work to the public or perform the work in public, to issue copies of the work to the public, to include the work in any cinematograph film, to make any adaption of the work.

Rights in musical work

copyright to musical work means the exclusive rights to reproduce the work, issues copies to the public, to include the work in any cinematograph film or sound recording in respect of the work, to make any adaption and translation of the work.

Rights in sound recording

copyright of sound recording means to make any other sound recording embodying it, to sell or give on hire for sale any copy of the sound recording, to communicate the sound recording to public.

Rights for computer programmes

copyright for computer programmes comes under literary work and all literary rights are applicable to it. Owner of the copyright in a computer programmes has the rights to sell or give or hire the work. Without permission of the owner, making copies of the software is a criminal offense.

Registration Procedure for Copyrights

Copyrights automatically come into existence as soon as the work is created. However, if the work is registered then it gives economic benefits to the owner. Registration of copyrights is done in the Copyright Office of the Department of Education situated at Kasturba Gandhi Marg, New Delhi. The entries made in the Register of Copyrights serve as prima-face evidence in the court of law.

According to the Chapter VI of the Copyright Rules, 1956, as amended, the procedure for the registration of a work is as follows:

  1. Application for registration is to be made on form IV.
  2. Separate application should be made for registration of each work.
  3. Each application should be accompanied by the prescribed fees as mentioned in the rules.
  4. The application must be signed by the applicant or Power of Attorney or the advocate in whose favour a Vakalatnama. The Power of Attorney signed by the party and accepted by the advocate should be enclosed.

Each and every column of the Statement of Particulars should be replied in future. The copy of manuscript has to be sent along with the application. Copyright registration fees ranges from Rs. 400 to Rs. 600 for each work. Copyrights of works of the countries mentioned in the International Copyright Order are protected in India.

Copyrights of the countries who are the members of the Berne Convention for the protection of Literary and Artistic works, Universal Copyright Convention and TRIPS agreement are protected in India. Copyright provided by the Indian Copyright Act is valid only within the borders of the country.

To secure protection to Indian works in foreign countries, India has become a member of Berne Convention for the Protection of Literary and Artistic works, Universal Copyright Convention, Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms, Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties and Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

Duration of Copyrights

According to the general rule, the duration of Copyright is 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 organisations, the 60-year period is counted from the date of publication.

Infringements

It should be noted that Copyright does not protect novelty but only originality. Copyright protects only the expression and not the idea. So, if it is the only method of expressing the work, it cannot be protected. The Copyright infringement means taking financial benefits of copyrighted work without permission of the owner.

Some of the commonly known acts involving infringement of copyright are:

  1. making infringing copies for sale,
  2. permitting any place for the performance of works in public
  3. distributing infringing copies for the purpose of trade
  4. public exhibition of infringing copies by the way of trade
  5. importation of infringing copies into India.


The key factors for initiating any infringement case is to prove ownership of Copyright or to prove infringer has copied the copyrighted work. Once the owner proved that the work has been already copyrighted under the act then minimum punishment for infringement is imprisonment for 6 months with minimum fine of Rs. 50,000. If the person proves that it was done innocently or even accidently then he may be held liable under the Copyright Act. The guilty intention of the offender can be considered for determining the quantum of damages to be awarded for the alleged infringement.

Recent Cases of Infringements

Top two cases of infringements of India during 2019 [20] are discussed below:

Case 1: 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 Act?

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 a 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. Sajeev in light of that filed a suit seeking various reliefs. 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 Section 57(1) provides the author to restrain third parties and the second 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 honour 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.

Case 2 : Tips Industries v Wynk Music [21]

Issue: Whether there exists a statutory licensing scheme under the Copyright Act to online streaming services?

Facts: Tips Industries Ltd (Plaintiff) is an Indian music label that exercises copyright over a significant music repository that, in 2016, granted Wynk Music Ltd (Defendant) license to access this music repository. At the expiry of the said license both the parties attempted to renegotiate the licensing conditions but failed to do so and hence Wynk took refuge by invoking Section 31D of the Copyright Act. Tips challenged Wynk's invocation of Section 31D, and prosecuted Wynk pursuant to Section 14(1)(e) for breach of their exclusive rights of sound recording.

Judgement: After hearing the contentions of both the parties the Bombay High Court came to a conclusion finding Wynk to be guilty of direct infringement on two counts €“ 1. To offer the copyrighted work under section 14(1) (e) (ii) which allowed the users to download and listen to the plaintiff's work offline and 2. Under section 14(1) (e) (iii) for communicating the plaintiff's works to the users via their streaming service.

Conclusions
In developing country like India, Intellectual Property Rights are very much important and plays a vital role in societal development. To progress and compete with the developed countries, more number of patents, copyrights, trademarks, GIs should be files or registered internationally. So, it is very essential to spread awareness of IPR amongst the people. IPR can be included in the education system and registration of IPR can be promoted by encouraging innovators or creators.

Copyright is an important element of IPR. Writers, musicians, artists should be encouraged to register their art. According to the Copyright Act 1957, the Copyright registration process in India is very easy at the reasonable fees.

Owner of copyrighted material can grant a license and transfers some of the rights to other person for the financial benefits. However, there are some issues with non-profits organizations related to Copyright Act which will be discussed in future articles.

References:

  1. WIPO Manual: What is Intellectual Property? http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pu b_450.pdf.
  2. http://www.wipo.int/wipo_magazine/en/2009/01/article_0003.ht ml
  3. http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pu b_489.pdf.
  4. www.commerce.nic.in/trade/international_trade_ip_trips1.asp
  5. https://www.wipo.int/about-ip/en/
  6. Indian Patent Act 1970
  7. Melissa R , Something old, something new, something borrowed, something blue: A new tradition in non-traditional mark registrations, Cardozo Law Review, 27 (2005) 457.
  8. Vennootschap onder Firma Senta Aromatic Marketing's application, Case R ETMR, 429 (1999).
  9. www.ipophil.gov.ph/images/Design/republicactno9150.pdf.
  10. www.commerce.nic.in/trade/international_trade_ip_trips1.asp
  11. www.copyright.gov.in/Documents/handbook.html
  12. Nomani M Z M & Rahman F, Intellectual of trade secret and innovation laws in India. Journal of Intellectual Property Rights, 16 (2011) 341-350.
  13. Harshwardhan & Keshri S, Trade secrets: a secret still to unveil, Journal of Intellectual Property Rights, 13 (2008) 208-17.
  14. www.business.gov.in/manage_business/protection.php/ (accessed on 1 May 2015).
  15. www.bipa.gov.na/intellectual-property/copyright/
  16. http://www.copyright.gov.in/Documents/CopyrightRules1957.pdf
  17. Intellectual Property Rights, a Manual, BITS Pilani (2007). [Online].http://www.bitspilani.ac.in/uploads/Patent_ManualOct_ 25th_07.pdf
  18. copyright gov in
  19. http://copyright.gov.in/Documents/handbook.html
  20. https://www.intepat.com/blog/copyright/5-copyright-cases-2019-india/
  21. Notice of Motion (L) No. 197 of 2018 IN Commercial Suit IP (L) No. 114 of 2018, decided on 23-04-2019


Written By: Dr. Jayashri Bangali - Kaveri College of Arts, Science and Commerce, Pune

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