UNIT 1 HISTORY AND BACKDROP OF EVOLUTION OF COPYRIGHT

GENERAL OVERVIEW OF INTELLECTUAL PROPERTYStructure 1.1 Introduction
Objectives 1.2 History and Evolution of Copyright 1.3 What is Copyright? 1.4 Protection of Related Rights 1.5 What Rights does Copyright Provide? 1.6 Why Protect Copyright? 1.7 When does Copyright Protection End, or Expire? 1.8 Summary 1.9 Terminal Questions 1.10 Answers and Hints
1.1 INTRODUCTION
In ancient times authors, painters, musicians, scientists, etc. (creators of intellectual property) i.e. people involved in intellectual exercises were state sponsored; i.e. they worked and prospered under the patronage of the King. Their honour, valour and property depended upon the king. All the products of their intellectual cultivation was the property of the state.
In a modern welfare democratic state, as they say, the common man is the king. So the need for all creative persons to fend for themselves arose. Since they were no longer sponsored by anybody, logically the right in the produce of their intellectual exercise, now vest in them rather than with the State. It was to protect this right that the need for a law of copyright arose. This need for the law of Copyright became more pressing after the invention of the printing press which made mass reproduction of the original content easily possible.
In India the first legislation of its kind, the Indian Copyright Act, was passed in 1914 which was mainly based on the U.K. Copyright Act of 1911.
With the advent of science and technology during renaissance and industrial revolution, the concept of industrial designs, chemical formulae, scientific procedures, etc. started evolving. This led to the evolution of the other branch of Intellectual Property Rights, namely Patents. The steady spread of trade and commerce, initially over large territories, then states, and eventually over the globe led to the evolution of yet another branch of Intellectual Property Rights, namely Trade Marks.
Copyright essentially relates to those acts which the creator reserves to himself or his near and dear ones in his creative works. These include right to reproduce, right to modify, right to commit for translation, right to transmutation, right to commit to other forms like cinematographic reproduction, etc.
How does any career, any industry, any position, any business attract the best talent available in society? Economic benefit is usually a big motivation.
Books, music, cinema, art, architecture, etc. combine to form our culture. The level of advancement in these fields in any society decides how 'cultured' that society is. The 'quality of life' is decided by these to a great extent.
How can these creative streams attract the best talents available if they cannot promise any remuneration for talent?
Think a While
Protection of Copyright in India: An Overview
“The book-writing industry cannot attract the best experts where the end-user cheats the collecting society by photocopying the book, the collecting society cheats the publisher by under-reporting the sources and quantum of collection, the publisher cheats the writer by under-reporting the collections from the collecting societies, and the writer ends up with only a fraction of what he should have received as royalty for use of his book.”
Relevance of copyright lies in the fact that, if all content creators come to know of ‘not’ being remunerated for their works as they should be, they will stop creating or will start producing sub-standard products.
Two decades ago, one of the most famous music labels of today, came into prominence in two stages. First, they mass pirated the products of all other popular music labels and mass distributed them in an organised fashion all over India. In the process they made a lot of money. In the next stage this company became a legitimate music label itself and started mass producing extremely low grade music tapes.
What is the end result?
The end result is that Indian musicians started making horrible music. Even today most of the music which sells are remixes of the old songs of the 50s, 60s and 70s. New melodies stopped being created for the last few decades.
For more than twenty years we tolerated a mainstream music which actually was worse than the average performance on the "Indian Idol" programme. Why is that? The reason is simply because the revenue streams for good content creators (i.e. lyricists and composers) dried up so completely because of all pervasive and rampant piracy of audio tapes and through VCRs. The only people who made money were the pirates, whether they were in the form of music directors, music composers or music labels.
Without going into further details, if you have understood the basic theme underlining the above, it is not difficult to foresee how non-implementation of copyright laws can change the entire face of the country, even one as large as India. That in other words implies submission to some regulation which would contribute to enhancement of quality of production and show the way out of the rampart problems of piracy.
In the last 100 years, almost every aspect of our life has changed, and so has copyright. The last 10 years have heralded the proliferation of a medium which has ushered in a big change in the systems governing our lives since the industrial revolution. This medium is the Internet. What the oil and the motor engine did in bringing about in the Industrial Revolution, the Internet and Information Technology are ushering in a new Age called Information Revolution. The impact of the Internet and Information Technology has gone deeper than even the most Governments could realise.
The Industrial Revolution changed our lives fundamentally − at the very basic level.
The family system and family power structure changed. From a joint agrarian system we moved to the Nuclear Urban family system in the industrial age. It changed the established systems of property ownership - earlier a man's worth was estimated by how many cattle head he owned and how much land he owned. In the Industrial Age the material properties owned became the measure of a man's wealth.
In the Information Age also, both the family system and the system of property ownership shall change completely. People in power in the Agrarian economy resented the power shift to the Industrial economy and people currently in power in the industrial age will not like and shall obviously resent the power shift in the information age economy. The family system shall move from the nuclear family system to a new system. So also, the system of property shall shift in importance to Intellectual Property, whether we like it or not.
8
History and Backdrop
of Evolution of CopyrightThis is already happening, anyway. Men and Women are both working and are quite
career conscious. Career opportunities pull couples to different cities and day by day prevalence of choosing career over relationships is increasing. It is no longer a question of priorities, it is slowly becoming a forced choice due to increasing cost of living and competition.
Even as early as the late 80s, 7 of the 10 richest people in the world were self-made IT billionaires. Today Information Technology and Bio-Technology are the only areas growing by leaps and bounds. Both comprise Intellectual Property. Intellectual Property has arrived and it is here to stay.
Students need to deeply understand that Intellectual Property and Information Technology are not merely one of the subjects in their curriculum. They are going to govern our way of life.
Objectives
At the end of this unit, you should be able to understand:
• meaning and boundary conditions of copyright protection; • history and evolution of copyright to its current stage; and • whys and wherefores of copyright protection.
1.2 HISTORY AND EVOLUTION OF COPYRIGHT
Modern copyright law has evolved from the historic struggles to balance the needs of the users with the rights of the authors and publishers to economic benefit. The governing logic of the evolution of modern copyright law is one of bringing about social progress through dissemination of knowledge from the point of its origin and spread throughout the length and breadth of the society.
Modern copyright law has evolved from the historic struggles to balance the rights of the authors and publishers to economic benefit with the needs of the users to have access to information. “The legal theories underlying copyright differ greatly from country to country” (Sam Ricketson, The Berne Convention for the protection of literary and artistic works: 1886-1896). Whatever their justifications, they all concur in their objectives and results, that is to provide creators with means of earning their living through the granting of exclusive rights
i) The first known Statute to give protection was the Act of Anne, of 1709, which granted to the authors and their successors in title protection for their books against their copying without their authorization .
Before hand, with the advent of the Gutenberg machine (printing press), privileges in the form of exclusive printing rights were made by national authorities to printers and publishers, who enjoyed the monopoly to undertake these activities. In England, for example, a royal charter was granted to the Stationers’ Company. However the purpose was not to protect the rights of authors but for to control certain types of religious or seditious literature (censorship measure).
ii) Other national laws followed the Statute of Anne.
iii) Subsequently copyright protection was also granted to foreign authors through bilateral treaties. This protection was not comprehensive, nor systematic, and it lacked uniformity. There was a need for a multilateral treaty, offering minimum satisfactory standards or protection with a universal approach.
iv) This need was met by the signing and ratification of the Berne Convention in 1886. The Berne Convention was the result of a strong “lobbying” of the ALAI (Association Littéraire et Artistique Internationale), an association regrouping authors and publishers and presided over by Victor Hugo. Three basic principles have been laid down:
9
Protection of Copyright in India: An Overview a) Minimum standard of protection (content, scope and duration) for a work;
b) Foreign works to be protected in each member state in the same manner as available to its own works;
c) Protection is automatic – no need for registration or notice or deposit.
v) At a later stage, The 1952 Universal Copyright Convention was ratified as a compromise, mainly in order to make room for the US ( not a member of Berne at that time) and allow it to join the international arena. The main difference with the Berne Convention is that whereas in the latter the protection is automatic, in the Universal Convention where a country ( such as the US) under its domestic law, requires as a condition of copyright, compliance with formalities (such as deposit, registration, notice, notarial certificates, payment of fees or manufacture or publication in that Contracting State)it shall regard these requirements as satisfied with respect to published works of non nationals if they bear the symbol © accompanied by the name of the copyright proprietor and the year of first publication placed in such manner and location as to give reasonable notice of claim of copyright. (But the US has since joined the Berne Convention, and the Universal Convention has lost some of its interest).
vi) The scope of copyright has been expanded further by the TRIPS Agreement to include computer programs 8 to be assimilated to literary works) as well as data bases as eligible for protection under copyright law.
vii) Recent international developments also allow for works to be protected in the context of the Internet. The WIPO Copyright Treaty (WCT), concluded in 1996, addresses the challenges posed by today’s digital technology, thus ensuring that copyright owners will be adequately and effectively protected when their works are disseminated through new technology and communications systems such as the Internet.
Copyright is historically associated with emergence of Individualism. More particularly, this concept is rooted in the Lockean notion of ‘property claims based on investment of labour.’ In other words, the individual acquires property to the extent he/she has put the labour for the same.
This political principle was primarily responsible for highlighting the importance of protecting the owner’s right to the benefits of innovation. But evolution of this concept was rather chequered. It has swung wildly to mean at one stage the publishers ‘right to copy’ before it was finally nailed down to mean author’s prime ownership of copyrighted work. We give below major milestones in the evolution of the concept and meaning of copyright:
i) ‘To every cow his calf; therefore to every author his copy.” This apparently is the first judicial pronouncement dating back to the 6th century AD in which the King Diarmid had decided that the ownership in a creative work belongs to the author.
ii) However, copyright was not a live issue till the advent of printing. Till Gutenberg (German) invented printing in 1436 AD, scribes and authors were having monopolies on their works. But a revolution set in with the advent of printing because this ‘new technology released explosive potentials for dissemination of information which were hitherto under the control of the authors. With the introduction of printing into England (in 1476 by Caxton), piracy became rife throughout. This tumultuous phase continued till some legal restrictions were imposed in 1556 against unauthorized use. The matter was regulated with the granting in that year of a royal charter to the Stationers’ Company, “not for protecting the rights of authors but for the purpose of controlling certain types of religious literature.”
It took another hundred years to legislate the Licencing Act of 1662 banning printing of any book which was not licenced and registered with the Stationers’ Company. During this phase, Stationers’ Company had “the monopoly on printing and publishing, with copyright as publishers’ right, until the royal charter expired in 1694”. Copyright came to mean “right to copy” for about 150 years.
10
History and Backdrop
of Evolution of CopyrightDuring this period publishers made merry of forcing the authors and writers to
complain against the rampant misuse of their works.
iii) The first modern copyright law took birth in 1709 with the enactment of the Statute of Queen Anne which offered protection to the authors against the piracy of their printed works.
iv) Among these incidental developments lay a striking one which deserves mention here. The House of Lords in its decision on a case in 1774, had changed copyright from ‘publisher’s right’ to ‘author’s right’.
v) This development gave rise to an international consensus and over years, the famous Berne Convention of 1886 was ratified as a universal instrument of standard reference on matters of copyright. As regards rights of the authors, three clear principles have been laid down:
a) Minimum standard of protection (content, scope and duration) for a work must not be below that provided in the Convention;
b) Foreign works to be protected in each member state in the same manner as available to its own works;
c) Protection is automatic – no need for registration or notice.
vi) The 1952 Universal Copyright Convention was ratified as a compromise to the American System (USA, Soviet Union & China had not joined the Berne Convention). Though it remained broadly as laid down in the Berne Convention with minor modifications, a new requirement came into force: a ‘C notice’ was specified to be entered into a work for its protection in the USA.
vii) Two other evolutionary features of copyright are: (a) each nation to have its own copyright laws which are however to essentially conform to the basic principles of the Berne Convention, and (b) copyright has some closely related rights which are either included under copyright law (as in common law traditions followed in USA & India) or separate legal provisions cover these rights. Also known as ‘neighbouring rights’, the related rights which have been identified and elaborated in the Rome Convention of 1961 are usually confined to three specific categories of persons: performers, producers of phonograms and broadcasting organizations. It is important to note that the (related) rights given to these persons are not at the expense of the copyright in the literary and artistic works on the basis of which these persons are playing their respective rules. This expansion has reached its logical end-point under the TRIPS Agreement (Agreement on Trade-Related Aspects of Intellectual Property Rights vide Annex IC of the Marakkesh Agreement creating WTO on April 15, 1994 which came into force on January 1, 1995). The TRIPS agreement created a copyright regime in which these related rights could now claim equal status with the original right holders without affecting the interests of the latter.
The scope of copyright has been expanded further by the TRIPS Agreement to include computer programmes as eligible for protection under copyright law. Till date and following the Berne Convention, copyright protection was available to what was generally defined as “every production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression (Art. 2) TRIPS Agreement now provides for protection of computer programs as literary works. Similarly databases have now been introduced as a property right protected against unauthorized use.
In the later nineteenth and in the twentieth centuries, considerable socio-economic and political changes on the one hand, and rapid strides in technological development on the other, have brought about substantial changes of outlook in relation to copyright. The freedom and expansion of the press, the gradual disappearance of the feudal order, the growth of adult training and mass education schemes, the raising of standards in higher education, the increase in the number of universities, institutions of higher learning and of libraries, the emphasis on the use of national languages, the development of science and technology, the changed map of the world with the birth
11
S d
Protection of Copyright in India: An Overview of a number of newly independent developing nations − all these factors have
tremendously contributed, changing the initial conceptual boundaries of copyright.
SAQ 1
a) How has piracy affected mainstream music in India? b) Trace the evolution of the modern Copyright laws.
1.3 WHAT IS COPYRIGHT?
When a person creates a literary, musical or artistic work, he or she is the owner of that work and is free to decide on its use. That person (called the “creator” or the “author” or “owner of rights”) can control the destiny of the work. Since, by law, the work is protected by copyright from the moment it comes into being, there is no formality to be complied with, such as registration or deposit, as a condition precedent for that protection. Mere ideas in themselves are not protected, only the way in which they are expressed is protected.
Copyright is the legal protection extended to the owner of the rights in an original work that he has created. It comprises two main sets of rights: the economic rights and the moral rights.
The economic rights are the rights of reproduction, broadcasting, public performance, adaptation, translation, public recitation, public display, distribution, and so on. The moral rights include the author's right to object to any distortion, mutilation or other modification of his work that might be prejudicial to his honour or reputation.
Both sets of rights belong to the creator who can exercise them. The exercise of rights means that he can use the work himself, can give permission to someone else to use the work or can prohibit someone else from using the work. The general principle is that copyright protected works cannot be used without the authorization of the owner of rights. Limited exceptions to this rule, however, are contained in national copyright laws. In principle, the term of protection is the creator's lifetime and a minimum of 50 years after his…