Sep 05, 2015
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COPYRIGHT - AN INSIGHT & OVERVIEW
06 October 2013
SOUMYA AHUJA
ADVOCATE & ATTORNEY
ATHREYA & ASSOCIATES, MUMBAI
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INTELLECTUAL PROPERTY RIGHTS
Creations of the human intellectGranted for the results of creative activity*
FORMS OF IP
COPYRIGHT & RELATED RIGHTS
INDUSTRIAL PROPERTY
PATENTSTRADEMARKSINDUSTRIAL DESIGNSG.I.TRADE SECRETSINTEGRATED CIRCUITS*
WHAT IS A COPYRIGHT
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PURPOSE
Advancement of Knowledge Balancing the rights of copyright owners with the rights of the public for access to and use of works*
WHY PROTECT ??
To prevent unauthorized reproduction of an authors workGive the owner the exclusive right for a limited period to authorize or prohibit certain use of his work by others*
SCOPE OF PROTECTION
Original work independently created by authorsDoes not protect any idea, procedure, process, system, method of operation, concept, principle or discovery - Unless fixed or expressed in atangible form
Work must be the result of at least some creative effort on the part of its author.*
COPYRIGHT - HISTORY
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The Statute of Anne was the first copyright law in the Kingdom of Great Britain (thus the United Kingdom), enacted in 1709 and entering into force on April 10, 1710.
It is generally considered to be the first fully-fledged copyright law. It is named for Queen Anne, during whose reign it was enacted.
The Statute of Anne was the first real copyright act, and gave the publishers rights for a fixed period, after which the copyright expired.
Copyright has grown from a legal concept regulating copying rights in the publishing of books and maps to one with a significant effect on nearly every modern industry, covering such items as sound recordings, films, photographs, software, and architectural works.
FIRST INTERNATIONAL TREATY (1886)
Literary and Artistic Works (1886)
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The three basic principles are the following:
(a) (principle of national treatment) Works originating in one of the contracting States must be given the same protection in each of the other contracting States [1].
(b) (principle of automatic protection) Such protection must not be conditional upon compliance with any formality [2].
(c) (principle of the independence of protection) Such protection is independent of the existence of protection in the country of origin of the work If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases [3].
(2) The minimum standards of protection relate to the works and rights to be protected, and the duration of the protection:
(a) As to works, the protection must include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression (Article 2(1) of the Convention).
(b) Subject to certain permitted reservations, limitations or exceptions, the following are among the rights which must be recognized as exclusive rights of authorization:
the right to translate,
the right to make adaptations and arrangements of the work,
the right to perform in public dramatic, dramatico-musical and musical works,
the right to recite in public literary works,
the right to communicate to the public the performance of such works,
the right to broadcast (with the possibility of a contracting State to provide for a mere right to equitable remuneration instead of a right of authorization),
the right to make reproductions in any manner or form
the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work [4].
The Convention also provides for moral rights, that is, the right to claim authorship of the work and the right to object to any mutilation or deformation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to the authors honor or reputation.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979.
India Signatory to Berne Convention : April 1, 1928
WHEN DOES A COPYRIGHT COME INTO EXISTENCE
From the time the work is created in a fixed, tangibleform of expression
Immediately becomes the property of the authorwho created the work
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REGISTRATION REQUIREMENTS
relating to ownership of copyright.
Registration invaluable to a copyright holder whowishes to take a civil or criminal action against the
infringer
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COPYRIGHT NOTICE - in absence of registration
2013 Soumya Ahuja
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INDIAN STATUTE ON COPYRIGHT
Principal Act:
The Copyright Act, 1957
&
The Copyright (Amendment )Act, 2012
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TYPES OF WORKS OF AUTHORSHIP PROTECTED
Literary worksMusical worksDramatic worksPantomimes and choreographic worksPictorial, graphic, and sculptural worksMotion pictures and other audiovisual worksSound recordingsArchitectural works*
S. 13
Literary works. Novels, nonfiction prose, poetry, newspaper articles and newspapers, magazine articles and magazines, computer software, software documentation and manuals, training manuals, manuals, catalogs, brochures, ads (text), and compilations such as business directories
Musical works. Songs, advertising jingles, and instrumentals.
Dramatic works. Plays, operas, and skits.
Pantomimes and choreographic works. Ballets, modern dance, jazz dance, and mime works.
Pictorial, graphic, and sculptural works. Photographs, posters, maps, paintings, drawings, graphic art, display ads, cartoon strips and cartoon characters, stuffed animals, statues, paintings, and works of fine art.
Motion pictures and other audiovisual works. Movies, documentaries, travelogues, training films and videos, television shows, television ads, and interactive multimedia works.
Sound recordings. Recordings of music, sounds, or words.
Architectural works. Building designs, whether in the form of architectural plans, drawings, or the constructed building itself
Ownership of copyright
The author or creator of the work is the first owner of copyright*
EXCEPTIONS TO OWNERSHIP
Literary, dramatic or artistic work made in the course of employmentPhotograph taken or painting drawn or cinematograph film made for a valuable considerationWork made under contract for service or apprenticeshipLectures delivered in publicGovernment workWork made on behalf of public undertakingWorks of certain international organizations*
BASIC RIGHTS
Negative rightto stop others from exploiting the work without the copyright owners consent or license*
MORAL RIGHTS
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The author of a work has got certain rights called "moral
rights" as distinguished from the other rights called "economic
rights". These are:
The right to decide whether or not to publish the work (the right of publication).
The right to claim authorship of a published or exhibited work ( the right of paternity).
The right to prevent alteration and other actions that may damage the author's honour or reputation ( the right of integrity).
ECONOMIC RIGHTS
Reproduction Right. Distribution Right. Modification Right. Public Performance Right. Public Display Right.*
S. 14
Reproduction Right. The reproduction right is the right to copy, duplicate, transcribe, or imitate the work in fixed form.
Distribution Right. The distribution right is the right to distribute copies of the work to the public by sale, rental, lease, or lending.
Modification Right. The modification right (also known as the derivative works right) is the right to modify the work to create a new work. A new work that is based on a preexisting work is known as a "derivative work."
Public Performance Right. The public performance right is the right to recite, play, dance, act, or show the work at public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images in sequence is considered "performance."
Public Display Right. The public display right is the right to show a copy of the work directly or by means of a film, slide, or television image at a public place or to transmit it to the public. In the case of a motion picture or other audiovisual work, showing the work's images out of sequence is considered "display."
DURATION OF COPYRIGHT
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literary, dramatic, musical or artistic work (other than a photograph) when published during the lifetime of the author, copyright subsists during the lifetime of the author plus 60 years.
anonymous or pseudonymous works until 60 years from the year of publication.
posthumous publications the term will be 60 years from the year of publication.
a photograph is 60 years from the year of its publication.
For cinematograph film and record also the term is 60 years from the calender year next of publication.
first owner of copyright is the Government of a public undertaking the term of copyright is 60 years from the year of publication.
Copyright works of International Organisations also have a term of 60 years from the year of publication .
WORK IN PUBLIC DOMAIN
Works not eligible for copyright protection Works that are either or no longer protected by copyrightE.G. PRIDE & PREJUDICE JANE AUSTEN PUBLISHED IN 1813
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COPYRIGHT IN FOREIGN WORKS
Provisions of this Act shall apply to works published and unpublished outside the territory of India
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WHAT AMOUNTS TO INFRINGEMENT?
S. 51-Making infringing copies for sale or hire or selling or
letting them for hire;
-Permitting any place for the performance of works in public
where such performance constitutes infringement of
copyright;
-Distributing infringing copies for the purpose of trade or to
such an extent so as to affect prejudicially the interest of the
owner of copyright ;
-Public exhibition of infringing copies by way of trade;
and
-Importation of infringing copies into India.-
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Motives for engaging in copyright infringement are the
following:
Pricing unwillingness or inability to pay the price requested by the legitimate sellers
Unavailability no legitimate sellers providing the product in the country of the end-user: not yet launched there, already withdrawn from sales, never to be sold there, geographical restrictions ononline distributionand international shipping
Usefulness the legitimate product comes with various means (DRM,region lock,DVD region code,Blu-ray region code) of restricting legitimate use (backups, usage on devices of different vendors, offline usage) or comes with annoying non-skippable advertisements and anti-piracy disclaimers, which are removed in the pirated product making it more desirable for the end-user
Shopping experience no legitimate sellers providing the product with the required quality throughonline distributionand through a shopping system with the required level of user-friendliness
Anonymity - Downloading works does not require identification whereas downloads directly from the website of the copyright owner often require a valid email address and/ or other credentials
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REMEDIES
CIVILA. Injunction
B. Damages or Accounts of Profit.
C. Delivery of Infringing copies and damages
for conversion.
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Imprisonment of Accused.
B. Imposition of fine or both.
C. Seizure of Infringing copies and delivery-up of infringing copies.
ACTS NOT AMOUNTING TO INFRINGEMENT - FAIR USE
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THE FOUR FACTORS CONTRIBUTING FAIR USE
Character of the Use Nature of the Material to be Copied Amount and Importance of the Part Copied Effect on Market for Permissions*
SCOPE OF FAIR USE
Making copies of copyrighted works Making derivative works (for example, digitizing charts, graphs, illustrations, slides) Distributing works, including electronic distribution Displaying and performing works publicly*
Delhi HC's Ruling on the 'Guiding Principle' of Public Domain &
Fair Use
Contd.
the Respondent claimed his book to be the same as the Appellants. Besides, an overall comparison of the two books would, according to the Court, reveal sufficient differences as not to consider one to be plagiarized from or infringing the copyright of the other.OTHER COMMON OFFENCES
PlagiarismComplete entire copying
Copy & paste Internet and electronic journals
Word Switch- copy the whole sentence and change a few words
Self no reference to your own prior work re-used in an assignment
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Major Amendments in the
1957 Copyright Act
PLAGIARISM
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COPYRIGHT PIRACY
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PIRACY:
Cinematograph FilmSound RecordingComputer SoftwareLiterary WorksPerformers*
LEGAL REPLY TO PIRACY
Section 64 of the Indian Copyright Act*
U/S 64of the Copyright Act, any police officer, not below the rank of a sub - inspector, may if he is satisfied that an offence in respect of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce them before a Magistrate as soon as practicable.
U/S 66of the Copyright Act, The Court trying any offence, may, whether the alleged offender is convicted or not, order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies be delivered up to the owner of copyright.
THE JOHN DOE ORDER
Delhi High Court granted Reliance Entertainment a 'John Doe Order' to prevent the illegal broadcast or streaming of its upcoming film, 'Bodyguard', Order restrains websites, cable operators and Internet Service Providers (ISPs) and others from infringing or violating Reliance's copyright by illegally showing the movie Order gives protection to the intellectual property owner, Reliance Entertainment, from copyright violation by prospective anonymous offenders. Enables an IP owner to serve the notice and take action at the same time against anyone who is found to indulge into infringing the copyright of the movie The name 'John Doe' is used as a placeholder in a legal action or case for any person whose true identity is unknown- in this instance, a potential pirate interested in illegally downloading or sharing prints of the film for which the order has been obtained Similar order was granted to the producers of the movie Singham, who claim that it helped curb piracy by 33%
RELATED RIGHTS:
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Pro-open culture organization
Free Software Foundation(FSF)Creative Commons(CC)Free Software Foundation
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CREATIVE COMMONS
A nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools.Their free, easy-to-usecopyright licenses provide a simple, standardized way to give the public permission to share and use their creative work on conditions set out by the Owners of the workCC licenses let easily change the copyright terms from the default of all rights reserved to some rights reserved.Creative Commons licenses are not an alternative to copyright.They work alongside copyrightand enable the Copyright Owner to modify the copyright terms to best suit their needs.*
ACTIVITIES
released several copyright licenses known as Creative Common Licenseslicenses allow creators to easily communicate which rights they reserve, and which rights they waive for the benefit of other creators*
AIM
enable copyright holders to grant some or all of their rights to the public Retaining others through a variety of licensing and contract schemes dedicating to the public domain or open content licensing terms To avoid the problems current copyright laws create for the sharing of information.*
Creative Commons Licensing Success Stories: Pratham Books
COPYRIGHT SOCIETIES
Collective administration of copyright by societies is a concept where management and protection of copyright in works are undertook by a society of owners of such worksFUNCTIONS OF A SOCIETY
Conditions subject to which a copyright society may issue licences, collect fees anddistribute such feesAdministration of rights of owner by copyright society Payment of remuneration by copyright society(1) A copyright society may issue licences and collect fees in accordance with its
Scheme of Tariff in relation to only such works as it has been authorised to
administer in writing by the owners of rights and for the period for which it has
been so authorised.
(2) The distribution of fees collected shall be subject to a deduction not
exceeding fifteen per cent of the collection on account of administrative expenses
incurred by the copyright society
(1) (a) a copyright society may accept from an owner of rights exclusive
authorisation to administer any right in any work by issue of licences or collection
of licence fees or both; and
(b) an owner of rights shall have the right to withdraw such authorisation without
prejudice to the rights of the copyright society under any contract.
(2) It shall be competent for a copyright society to enter into agreement with any
foreign society or organisation administering rights corresponding to rights under
this Act, to entrust to such foreign society or organisation the administration in
any foreign country of rights administered by the said copyright society in India,
or for administering in India the rights administered in a foreign country by such
foreign society or organisation:
Provided that no such society or organisation shall permit any discrimination in
regard to the terms of licence or the distribution of fees collected between rights
in Indian and other works.
(1) If the Central Government is of the opinion that a copyright society for a class
of work is generally administering the rights of the owners of rights in such work
throughout India, it shall appoint that society for the purpose of this section. (2)
The copyright society shall, subject to such rules as may be made in this behalf,
frame a scheme for determining the quantum of remuneration payable to
individual copyright owners having regard to the number of copies of the work in
circulation:
Provided that such scheme shall restrict payment to the owners of rights whose
works have attained a level of circulation which the copyright society considers
reasonable
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REGISTERED COPYRIGHT SOCIETIES IN INDIA-
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IRRO
issue or grant Licences, in respect of any Literary Work in which copyright subsists, for reproduction (with Limitations), on behalf of Rightsholders i.e. Owner of Copyright of any Literary Work i.e. Authors, Publishers, etc.License is mandatory for All Government as well as Private institutions/ organizations, Companies, Educational Institutions, Libraries, Photocopy Shops and others who do not come under fair uses of the Copyright Act, 1957.
RESTRICTIONS ON PHOTOCOPYING, SCANNING AND USE OF DIGITAL COPIES
(i.e. Limitations of IRRO License)