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.
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.
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
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
- 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
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.
- 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:
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
Upon hearing if the objection is rejected, then the application goes ahead for
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 enforcementAuthority 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
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
- 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,
Some important case laws:
- Criticism and commentary,
- News reporting,
- Research and scholarship,
- Nonprofit education use, and
Morality rights of authorMalik 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 ServicesSection 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
R.G Anand vs M/S. Delux Films & OrsHere 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
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 ProductionsIssue: 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.
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
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
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.
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.
- Section 14 of the Copyright Act, 1957
- Section 57 of the Copyright Act,1957
- Section 13 of the Copyright Act,1957
- Section 52 of the Copyright Act,1957
Written By: Prachi Dhanuka