DEFINITION

Creativity and originality are the bedrock of progress and it should be encouraged and protected. Thus to safeguards the rights of authors over their creations, the concept of Copyright was introduced. Section 13(1) of the Indian Copyright Act 1957 states that copyright subsists in “original literary, dramatic, musical and artistic works.” Copy right protection is given as soon as the work comes into existence.

Illustration- if Ms. Samira wrote a letter to Ms. Snigdha. Here the personal property rights that exist in the ink and the paper are transferred to Ms. Snigdha. However, Ms. Samira retains the intellectual property rights that are the copyright in the letter. This gave the right to Ms. Samira to stop Ms. Snigdha from copying the letter or posting it on the internet. As copyright is right in rem, so it can stop anyone from copying or posting the letter written by Ms. Samira.

Evolution of Copyright law in India

The copyright law was introduced in India in the British era in 1847. The provisions of the law were very different at that time where the term of copyright could never exceed forty-two years. Also, the government was having the authority to grant compulsory license to publish a book if the owner of the copyright, upon the death of the author, refused to allow its publication. Registration of Copyright with the Home Office was mandatory for the enforcement of copyrights in that era. In 1914, the Indian legislature under the British Raj enacted the Copyright Act of 1914, where the concept of criminal sanction for infringement was introduced. After many amendments Copyright Act, 1957 was enacted in order to suit the provisions of the Berne Convention. Presently Copyright Act 1957 deals with copyright cases in India. The amendment in 2012 makes this act compliant with the WIPO Copyright Treaty.

Protection of Material under Copyright

Literary work such as books, advertisements, computer programs; music composition such as CD, DVD, Tape, MP3files; dramatic and choreographical activities like plays, movies, TV shows, dance movements; graphic and sculptural activities like photographs, cartoons, maps, architectural work, etc are protected under Copyright Act 1957.

Doctrine to Test Copyright Protection

There are two types of doctrine

Sweat of Brow Doctrine- This doctrine states that Substantial creativity is not required to acquire copyright. Author gains right through Mere diligence and hard work during the creation like in author of directory gets the copyright through his hard work and efforts as it took lots of efforts to assemble the numbers and to write it in a directory, in this case, creativity is not the base to give copyright, provided that the work must be original.

Modicum of Creativity Doctrine- This doctrine states that creativity is a must for attaining copyright over something. Though the standard of creativity need not be high it should at least have a minimum level of creativity along with originality to get copyright protection

India strongly follows the doctrine of Sweat of Brow, supreme court in the case of Burlington Home Shopping v. Rajnish Chibber states that original thoughts and research are not necessary for claiming copyright, even dictionaries, gazettes, encyclopedias, etc. are capable of having copyright.

Though copyright cannot be given to the news reporters or any other magazine for writing the facts of the true instances and events that occur in the country. Copyright cannot be claimed by the reporter for reporting the event first. Facts of any particular instance, event natural phenomena, information, judgment is not subject to copyright even though it may be collected through skills and efforts, but if aforesaid facts are written or expressed in own opinion or some kind of legal research is done based on the legal skills, creativity skills then it would come under the ambit of copyright protection. This was held in the case of Eastern Book Company v. D.B. Modak, through which the approach of ‘Sweat of the Brow’ doctrine was shifted to a ‘Modicum of creativity’ approach.

Neighboring Rights

The copyright law, neighboring rights are the rights of creative work, and these rights are not connected directly with the actual author or owner of the work but they actually protect the performers like actors, singers, musicians, etc who perform the artistic work of the author or actual owner.

Types of Copyright

Economic right- copyright protection gives the owner the authority to sell or lease the work in order to get economic benefits. The owner can partially or completely sell the ownership rights on his creation provided that the rights should be in the written form. He can also give the right to access the original work done by him for a particular time and under some terms and conditions.

Moral rights- Moral rights are basically those rights that identify the person as the owner of the work. Even after the transfer of the economic right, these rights will stay with the owner. These rights also include the rights to prohibit the destruction of the work of the owner.

Economic rights can be transferred but moral rights cannot be transferred even if the work is done in the course of employment.

Benefits of Copyright

Though it is not compulsory to have copyrighted it ensures many benefits

Ownership: Only the copyright holder has a right to use a copyrighted work done by him. He has the right to sell or give on lease his creation through which the can take many economic benefits.

Longevity: Once copyright protection is taken it will remain with the person for a lifetime and even after the death of the owner.

Penalties: The owner of the copyright holder can claim monetary benefits for infringement of their rights. Moreover, it has more coverage not only at the national level but also at the international level.

Registration of Copyright

The author of the work who has the economic ownership of the work can register the copyright. If the content is created in the course of employment then the employer can register the copyright, here the employee has the moral right but not the economic right of the content he created. The copyright law also grants exclusive rights like the right to reproduce the main content or the right to perform and alter the original work. Such a person has the right to apply for registration for his efforts and work. The authorized agent of the author or copyright claimant also has the right to apply for registration on their behalf.

Registration Process

The process of registration is mentioned in section 45 of the Copyright Act, according to which firstly Application is to be made in form XIV for each category of work. Every application is to be signed by the owner of the right. A copyright register is maintained by the copyright office which contains all the details of the owner and his original work. Then registration fees are paid. Then a notice must be given to every person who claims or have an interest in the subject matter of copyright. After 30 days of the application after completing all the formalities, the application will be entered in the copyright register and the copyright is granted to the owner. This register of copyright is admissible in court as evidence.

Terms of Copyright

According to trips protection of copyright is given for a minimum period of 50 years from the date of publication.
Terms of copyright are mentioned in sections 22 to 28 of the Copyright Act

1. Original Literary, dramatic, musical and artistic work- term of protection will be granted for the lifetime of the author and will extend to 60 years after the author’s death.
   For example, a dies in the year 2025 then his copyright protection will extend till 2085 that is 60 years from the death of the author
2. Sound recordings, Posthumous Publications, Works of Government, Pseudonymous publications, Work in Public undertakings and Works of international organizations for these types of the owner the copyright protection will be granted for 60 years from the date of publication. The period will start from the beginning of the next year following the date of publication
   For example, if the owner of the publication is unknown, in that case, copyright protection will be given for 60 years from the next year of the publication. In case the name of the author comes in the picture then the copyright protection will be a lifetime of the author and 60 years after his death.
3. Photographs- After the amendment of copyright Act in 2012, the photographer gets copyright protection 60 years after the death of the photographer.
   

Copyright Board

Section 11 and 12 of the Copyright Act discusses the functions of the copyright board. There is a minimum of 2 members and a maximum of 14 members on the copyright board. The function of the copyright board is to solve disputes related to the assignment of copyright by the author to the publisher. It determines the royalty payable to the owner of the copyright. It also grants a compulsory license for unpublished work. It rectifies the changes in the copyright at the request of the aggrieved person or registrar.

Infringement of Copyrights

Section 51 of the Copyright Act states that copyright infringement occurs when unauthorized use of the work is done without the prior permission of the exclusive right holder for the purpose of defamation or for-profit motive rights of the owner of copyright whether in relation to the whole or a substantial part of the copyrighted work.

In cases where the time period of copyright protection is over and in the case of orphan works. Copyright content can be used for educational purposes and also for fair use doctrine as mentioned in section 52 of the copyright act. If the prior permission of the actual owner is taken then there is no infringement of copyrights.

Case- Super Cassettes v. MySpace- In this case, it was alleged that MySpace was infringing the copyright of Super Cassettes by posting its work on the social media platform. This acted as an infringement of copyright under section 51(a) (ii) of copyright act 1957. An injunction was granted against MySpace and was asked to delete the already posted work of Super Cassettes.

University of Oxford v. Rameshwari Photocopy Services – In this case, the photocopy shop was printing the study material of the textbook and was selling it at fewer prices. Photocopy also amounts to copyright infringement as per section 2(o) of the copyright act. But if the act is done for the purpose of spreading knowledge or providing education then it would not cover under the ambit of section 2(o) of the Copyright Act.

Remedies for infringement

The remedies available in the Copyright Act, 1957 against infringement of copyright are

•Civil Remedies –These remedies are mentioned from sections 54 to 62 of the copyright act. These provide for temporary, interlocutory, or permanent injunctions, damages, rendition of accounts, destruction of infringing copies, etc.

•Criminal Remedies –These remedies are mentioned from section 63 to section 69 of the copyright act. These provide for imprisonment, fines for a first offense (6months to 3 years of imprisonment and a fine up to 2 lakh), in case of subsequent conviction imprisonment for 1 month and can be extended up to 3 years and fine starts from 1 lakh and may extend to 3 lakhs, for infringement of copyright.

•Border Enforcement – Copyright Act also provides for an injunction, destruction, or prohibition of imported goods that infringe the copyrights of the owner.

•John Doe Order- this order is given if the identity of the person who infringes the right is unknown. In India, it is popularly known as the Ashok Kumar order. Like recently PepsiCo or Maggi takes John Doe’s order to remove all the content which was maligning the image of their products.

•Anton Pillar Orders-This order is given by the court allowing the party to enter the premises of another to search for the copyright content or products and to remove those items if found.