Block-1 Copyright an Introduction

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History and Evolutionof CopyrightBLOCK 1 COPYRIGHT: AN

INTRODUCTION

Structure

1.1 History and Evolution of Copyright1.2 Works Protected

General Conditions for ProtectionWhich Works are Protected?

1.3 Rights in CopyrightEconomic RightsMoral Rights

1.4 Term of Protection1.5 Limitations and Exceptions 1.6 Ownership and Transfer of Copyright1.7 Summary1.8 Terminal Questions1.9 Answers and Hints

1.1 HISTORY AND EVOLUTION OF COPYRIGHT

Modern copyright law has evolved from the historic struggles to balance the rights ofthe authors and publishers to economic benefit with the needs of the users to haveaccess to information. The legal theories underlying copyright differ greatly fromcountry to country (Sam Ricketson, The Berne Convention for the protection ofliterary and artistic works: 1886-1896). Whatever their justifications, copyrightlegislations all concur in their objectives and results, that is to provide creators withmeans of earning their living through the granting of exclusive rights. These rights are

to be balanced by the public interest, which postulates that knowledge should bedisseminated and not impeded. It is generally admitted that the exclusive rights thatare granted to authors constitute an incentive that encourages them to devote time andeffort to creative activities. Hence subsequent dissemination of works will occur tothe greatest benefit of the public.

i) The first known Statute to give protection was the Act of Anne of 1709, whichgranted to the authors and their successors title protection for their books againsttheir copying without their authorization.

Beforehand, with the advent of the Gutenberg machine (printing press), privilegesin the form of exclusive printing rights were given 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 StationersCompany. However the purpose was not to protect principally the rights ofauthors but to control certain types of religious or seditious literature.

ii) Other national laws followed the Statute of Anne and were enacted in differentcountries.

iii) Subsequently copyright protection was also granted to foreign authors through bilateral treaties. This protection was not comprehensive, nor systematic, and itlacked uniformity. There was a need for a multilateral treaty, offering minimumsatisfactory standards or protection with a universal approach.

iv) This need was met by the signing and ratification of the Berne Convention in1886. The Berne Convention was the result of a strong lobbying of the ALAI(Association Littraire et Artistique Internationale), an association regrouping


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Copyright: An Introduction authors and publishers and presided over by Victor Hugo. Three basic principleshave been laid down in the Berne Convention:

a) Minimum standard of protection (content, scope and duration) for a work; b) Foreign works are to be protected in each member state in the same manner as

the protection available to works of nationals;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 acompromise, mainly in order to make room for the US (not a member of Berne atthat time) and allow it to join the international arena. The main difference with theBerne Convention is that in the latter the protection is automatic. Whereas in theUniversal Convention if a country (such as the US), requires under its domesticlaw compliance with formalities (such as deposit, registration, notice, notarialcertificates, payment of fees or manufacture or publication in that ContractingState) as a condition of copyright protection, it shall regard these requirements assatisfied 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 theUniversal Convention has lost some of its interest).

vi) The scope of copyright has been expanded further by the TRIPS Agreement so asto include computer programs (assimilated to literary works) as well as data bases,as subject matter of protection under copyright law.

vii) Recent international developments also allow for works to be protected in thecontext of the Internet. The WIPO Copyright Treaty (WCT), concluded in1996, addresses the challenges posed by todays digital technology, thus ensuringthat copyright owners will be adequately and effectively protected when theirworks are disseminated through new technology and communications systemssuch as the Internet.

Spend5 min.

SAQ 1

Do you agree?

i) Printing and computing technology brought about dramatic changes in the scopeand meaning of copyright.

ii) Universal Copyright Convention has replaced the Berne Convention.

iii) Historically, the meaning of copyright has changed from publishers right to

authors right.iv) According to the Berne Convention, computer programs are literary works.

1.2 WORKS PROTECTED

The subject-matter of copyright protection includes every production in the literary,scientific and artistic domain, whatever the mode or form of expression.

1.2.1 General Conditions for Protection

Two conditions are generally required in order for a work to enjoy protection:

1) a work has to be original ( positive condition)2) a protection can extend only to expression but not to ideas (negative

condition)


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History and Evolutionof Copyright1) For a work to enjoy copyright protection, it must be an original creation .

The concept of originality requires some clarification. First of all it is important to bear in mind that an original creation does not mean that the ideas in the workneed to be new or original. Originality relates only to the form in which they areexpressed, be it literary or artistic. This being said, the definition of originality isnot uniform and may differ following different legal traditions. In countries wherecommon law system applies (such as India), for a work to be original, it should be

the product of your own mind. From that perspective originality means that thework has not been copied from another work. Suffice it that a minimum amountof skill, labour and judgement is displayed by the author, the requirement oforiginality is fulfilled. However in countries where civil law system applies, inorder for a work to be original it should display some amount of creativity on the

part of the author, that may entail more than mere skill and labour.

Box 1: Originality conundrum

Think for yourself:

Can X get a copyright for something that has been created by Y before?

Usually, the answer to this question is NO. But the interpretations oforiginality have at times been such that an YES answer is also possible to theabove question: if X can prove that she/he has created an identical or similarwork to one which existed before (say for instance a photograph of a monument)without having copied the previous work, then X could claim copyright on hiswork, which has been independently created by him/her. It follows further thatX can enforce copyright against anyone who has actually copied from him/her

Another aspect of this originality test refers to the composition of the creation.Consider for example the case of an anthology, consisting of a compilation ofworks (for example poems) written by others than the author of the anthology.Should one consider that protection is not be extended to the anthology, bearing inmind that none of the poems contained therein are written by the anthologysauthor?. The latters contribution consists mainly in collecting or compiling thematerial (poems) published in the anthology. In this situation the anthology may

be protected as such, to the extent that there is originality with respect to the selection and arrangement of its contents. The originality, if there is any, wouldrelate in this situation to the work that has been involved in bringing togetherdiverse works (poems) following a determined plan, according to a more or lessingenious grouping.

One has to bear in mind however that in the above-mentioned example, the authorof the anthology should require authorizations to publish the poems from theirauthors, to the extent that these poems are still protected and have not fallenalready in the public domain.

Of a slightly different nature, but copyrightable on the above principle are theworks known as derivative works. Derivative works are works based on other

pre-existing works, from which they derive. Works like translations, movieversions of plays or stories, dolls created out of popular cartoon characters, arederivative works. Do they enjoy copyright? The person making the derivativework has expended enough skill, labour or creativity for the latter to be regardedas an intellectual creation deserving of protection in its own right (Sam

Ricketson, The Berne Convention for the protection of literary and artisticworks).Originality consists here in recasting, transforming or adapting the initialwork. In this instance copyright in such recast, transformed or adapted creationsis limited to the original contributions of the deriving creator. (that is the


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Copyright: An Introduction translation, the movie or the doll). But one has to bear also in mind that in thisinstance the author of the transformed or translated work should seek permissionfrom the copyright holder of the initial work from which he derived his work,

barring which he may be infringing the rights of the latter, and could thus be prevented form exploiting his own translation, movie version or doll.

Originality of the Derivative WorksAn English translation of Premchands novel Godaan is a derivative workand this work can claim copyright. The translator will accordingly be

protected against someone who copies his/her translation but not againstsomeone who makes a similar translation through an independenteffort. Similarly, the translator should seek permission from the author ofthe novel.

2) The second requirement of copyrightability is that the work is an expression of,rather than an idea as such. As with facts, similarly with ideas: they are there ascommon properties, available freely in the public domain. Copyright does notextend to ideas, but only to the expression of thoughts. For example the idea oftaking a picture of a sunset is not protected by copyright. Therefore, anyone maytake such a picture. But a particular picture of a sunset taken by a photographermay be protected by copyright. In such a case, if someone else makes copies ofthe photograph, and starts selling them without the consent of the photographer,that person would be violating the photographers rights.

3) Other conditions

In some countries, works are excluded from protection if they are not fixed intangible form ; for example, a work of choreography would be protected once themovements were written down in dance notation or recorded on videotape. Inmany other countries though, a work is protected even though it is not fixed in anymaterial form. The Berne Convention leaves this matter open to the membercountries (see Article 2 (5)). In order to know whether fixation is required as acondition for protection in a particular country, it is advisable to read the nationalcopyright legislation of that country.

1.2.2 Which Works are Protected?

The subject-matter of copyright protection includes every production in the literary,scientific and artistic domain, whatever the mode or form of expression.

The expressions literary and artistic might indicate that only works which haveliterary or artistic merit will be protected. But this is not the case as protection isindependent of the quality or the value attaching to the work. The latter will be

protected whether it be considered, according to taste, a good or a bad literary ormusical work or a beautiful or ugly painting. It is not necessary, to qualify forcopyright protection, that works should pass a test of imaginativeness, ofinventiveness. The work is protected even when it has little in common with literature,art or science. Courts have thus extended protection to business letters, contract forms,examination papers, a weight loss program, railway timetables, purely technicalguides, engineering drawings, or maps.

Exceptions to the general rule are made in copyright laws by specific enumeration;

thus laws and official decisions or mere news of the day are generally excluded fromcopyright protection. It is to be noted that in some other countries such official textsare not excluded from copyright protection; the government is the owner of copyrightin such works, and exercises those rights in accordance with the public interest.


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Copyright: An Introduction exclude others from using it without his authorization. Therefore, the rights bestowed by law on the owner of copyright in a protected work are frequently described asexclusive rights to authorize others to use the protected work (or not to authorizesuch use by others).

What is meant by using a work protected by copyright? Most copyright laws definethe acts in relation to a work which cannot be performed by persons other than the

copyright owner or without his authorization.

Such acts are the following:

Right of Reproduction and other associated rights

The right of the owner of copyright to prevent others from making copies of hisworks is the most basic right under copyright. Such right applies to reproductionsmade in any manner or form . For example, making of copies of a protected work isthe act performed by a publisher who wishes to distribute copies of a text-based workto the public, whether in the form of printed copies or in digital media such as CD-ROMs. Other examples include photocopying a book, downloading a computer

program, printing a cartoon character on a T-shirt, making post cards of a painting,etc.

Such rights comprise also recording activities . Recording music and words of a songon CDs requires the producer of the phonogram to obtain authorization from theauthors of both the music (composer) and the lyrics to reproduce their compositionson the phonogram. Under the laws of some countries, the maker of a sound recordingmust also obtain the authorization of the performers who play the music and who singor recite the words.

Likewise recording on video-cassettes or DVDs of a play initially written to be performed live, for the purpose of being subsequently shown to a larger audience, is

an act or reproduction that requires appropriate authorization from the author of the play. Therefore, the right to control the act of reproduction is the legal basis for manyforms of exploitation of protected works.

Other rights are recognized in national laws in order to ensure that the basic right ofreproduction is respected. For example, some laws include a right to authorizedistribution of copies of works. The right of distribution is usually subject toexhaustion upon first sale or other transfer of ownership of a particular copy, whichmeans that, after the first sale of that copy its purchaser may dispose of it without thecopyright owners further permission, for example, by giving it away or even byreselling it. Another right which is achieving wider and wider recognition, includingin the TRIPS Agreement (see chapter 5, paragraph 5.41), is the right to authorizerental of copies of certain categories of works, such as musical works included in

phonograms, audiovisual works, and computer programs. The right of rental is justified because technological advances have made it very easy to copy these types ofworks; experience in some countries has shown that copies were made by customersof rental shops, and therefore, that the right to control rental practices was necessaryin order to prevent violation of the copyright owners right of reproduction. Finally,some copyright laws include a right to control importation of copies as a means of

preventing erosion of the principle of territoriality of copyright; that is, the legitimateeconomic interests of the copyright owner would be endangered if he could notexercise the rights of reproduction and distribution on a territorial basis.

Translation and Adaptation Rights

The acts of translating or of adapting a work protected by copyright require theauthorization of the copyright owner.


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History and Evolutionof CopyrightTranslation means the expression of a work in a language other than that of the

original version.

Adaptation is generally understood as the modification of a work from one type ofwork to another, for example adapting a novel so as to make a motion picture, or themodification of a work so as to make it suitable for different conditions ofexploitation, for example adapting an instructional textbook originally prepared for

higher education into an instructional textbook intended for students at a lower level.Likewise, a film producer who intends to produce a film based on a novel or a playshould also obtain the authorization of the author to make an adaptation of the play ornovel.

Bear in mind however that translations and adaptations are themselves works protected by copyright. Therefore, in order, for example, to reproduce and publish atranslation or adaptation, the publisher must have the authorization both of the ownerof the copyright in the original work and of the owner of copyright in the translationor adaptation.

Performing Rights

Another act requiring authorization is the act of public performance: Examplesinclude performing plays or music live or reading books or poetry before an audience,

playing recorded music or showing films or videos in public, delivering lectures in public, and letting a broadcast be seen or heard in public.

Broadcasting Rights

A major category of acts restricted by copyright consists of the acts of broadcastingworks and of communicating works to the public by means of wires or cables.

When a work is broadcast, a wireless signal is emitted into the air which can be

received by any person, within range of the signal, who possesses the equipment(radio or television receiver) necessary to convert the signal into sounds or sounds andimages.

When a work is communicated to the public by cable, a signal is diffused which can be received only by persons who possess such equipment linked to the cables used todiffuse the signal.

In principle, according to the Berne Convention for the Protection of Literary andArtistic Works, owners of copyright have the exclusive right of authorizing both thewireless broadcasting and the diffusion by cable of their works.

The broadcasting and diffusion by cable of works protected by copyright have givenrise to new problems resulting from technological advances which may require areview by governments of their national copyright legislation. The advances includethe use of space satellites to extend the range of wireless signals, the increasing

possibilities of linking radio and television receivers to signals diffused by cable, andthe increasing use of equipment able to record sound and visual images which are

broadcast or diffused by cable.

Recent international developments also allow for works to be protected in the contextof the Internet. The WIPO Copyright Treaty (WCT) , concluded in 1996, addressesthe challenges posed by todays digital technology, thus ensuring that copyrightowners will be adequately and effectively protected when their works aredisseminated through new technology and communications systems such as theInternet.


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Copyright: An Introduction 1.3.2 Moral Rights

The Berne Convention requires member countries to grant to authors:

the right to claim authorship of the work. That is basically the right of the creatorto have his or her name mentioned as the author, in particular when the work isused.

the right to object to any distortion, mutilation or other modification of, or otherderogatory action in relation to, the work which would be prejudicial to theauthors honour or reputation.

These rights are independent of the usual economic rights and they are to remain withthe author even after he has transferred his economic rights. It follows that moralrights may be exercised even after the author has parted with his economic rights.Hence if an author of a novel has transferred his right to publish and distribute thenovel to a publisher, the latter becomes the new owner of the publication rights, underthe terms of the contract. However the author retains the right to claim authorship ofthe work, for example, or to object to non authorized modifications to the work.

Spend3 min.

SAQ 2

Answer Yes or No:

i) Preventing others from making copies of his/her work is the most basic rightunder copyright.

ii) Right of reproduction should be controlled to guard against misuse of copyright.

iii) Right to control rental practices is necessary in order to prevent abuse copyrightowners right of reproduction.

iv) The right to authorize making of a sound recording belongs to the owner of thecopyright in music.

v) Translations and adaptations enjoy copyright protection.

1.4 TERM OF PROTECTION

Copyright is not a permanent right. The law protects copyright only for a specific period and after the expiry of that period, the work passes off into the public domain.A major point to remember is that this period is usually under internationalconventions a minimum of life time of an author + 50 years . Once the term hasexpired, the work is in the public domain. Thereafter, everybody will be free to usethe work, without obtaining a specific authorization from the copyright owner.

However the Berne Convention allows for shorter terms of protection in some cases(for example the minimum term of protection for photographic works is 25 years fromthe making of the work). And as the term provided for in international conventions isa minimum standard to be respected by member countries, some national laws also

provide for a longer period. For example, the 1992 Amendment to the IndianCopyright Act of 1957 has raised this period from +50 (as it then was) to +60 (as it isnow). For more details about the situation in India, you are kindly referred to ModuleVI of this course.


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History and Evolutionof CopyrightSAQ 3

a) How are the terms of copyright protection different between published works and photographs?

Spend5 min.

b) Is copyright protection a permanent fixture? Explain along with an illustrationfrom among the recent trends.

c) One of the following is wrong; identify

i) Term of Copyright protection uniformly applies to all types of works.

ii) 1992 Amendment (India) has introduced a change enhancing the term from+50 to +60 years beyond the authors life.

iii) Copyright protection is usually a limited and time-bound phenomenon.

1.5 LIMITATIONS & EXCEPTIONSLimitations on the rights of authors and other owners of copyright concerns particularacts of exploitation, normally requiring the authorization of the owner of rights, whichmay, under circumstances specified in the law, be done without authorization. Theselimitations take into account, social, educational and other public policyconsiderations. International Treaties, as well as national laws, allow to freely uselimited portions of a work for certain purposes, such as news reporting, or makingquotations in a way compatible with fair practices, or by way of illustration forteaching.

There are two basic types of limitations in this category:

1. Free uses , which are acts of exploitation of works that may be carried out withoutauthorization and without an obligation to compensate the owner of rights for theuse;

2. Non-voluntary licenses , under which the acts of exploitation may be carried outwithout authorization, but with the obligation to compensate the owner of rights.

Examples of free uses include: the making of quotations from a protected work, provided that the source of the quotation, including the name of the author, ismentioned and that the extent of the quotation is compatible with fair practice; use ofworks by way of illustration for teaching purposes; and use of works for the purposeof news reporting,. In some countries when the broadcasting of a work has beenauthorized, many national laws permit the broadcasting organization to make atemporary recording (ephemeral recording) of the work for the purposes of

broadcasting, even if no specific authorization of the act of recording has been given.

In respect of the right of reproduction, the Berne Convention contains also a generalrule, rather than explicit detailed limitations: Article 9(2) provides that member Statesmay provide for free reproduction in "certain special cases" where the acts do notconflict with a normal exploitation of the work and do not unreasonably prejudice thelegitimate interests of the author. Under this general exception, numerous lawscontain provisions allowing reproduction of a work exclusively for the personal,

private and non-commercial use of individuals. However, the ease and quality of thisindividual copying, made possible by audiotaping or videotaping and even morerecent technological improvements, has led some countries to narrow the scope ofsuch provisions. Certain legal systems allow copying but incorporate a mechanism for

payments to be made to the owners of rights in order to compensate for the prejudice


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Copyright: An Introduction to their economic interests, through a fee imposed on sales of blank tapes and / or taperecorders.

As noted above, non-voluntary licenses allow use of works in certain circumstanceswithout the authorization of the owner of rights, but , require that compensation be

paid in respect of the use. Such licenses are called "non-voluntary" because they areauthorized by the law and do not result from the exercise of the copyright owner'sexclusive right to authorize particular acts. Non-voluntary licenses were usuallycreated in circumstances where a new technology for the dissemination of works to the

public had emerged, and where the national legislature feared that owners of rightswould prevent the development of the new technology by refusing to authorize use ofworks. This was true in the Berne Convention, which recognized two forms of non-voluntary licenses: firstly, to allow the mechanical reproduction of musical works andsecondly for broadcasting. It should be noted, however, that the justification for non-voluntary licenses is called increasingly into question, since effective alternatives nowexist for making works available to the public based on authorizations given by theowners of rights, including in the form of collective administration of rights.

Spend

5 min.

SAQ 4

a) Answer Right ( ) or Wrong ():

Copyright in a work is permanent.

b) Write a note (50 words) on compulsory license.

1.6 OWNERSHIP AND TRANSFER OF COPYRIGHT

The owner of copyright in a work is generally, at least in the first instance, the personwho created the work, that is to say, the author of the work.

There can be exceptions to this general principle. Such exceptions are regulated by thenational law. For example, the national law may provide that, when a work is created

by an author who is employed for the purpose of creating that work, then theemployer, not the author, is the owner of the copyright in the work.

It is to be noted, however, that the moral rights always belong to the author of thework, whoever may be the owner of the copyright.

In many countries, copyright (with the exception of moral rights) may be assigned.This means that the owner of the copyright transfers it to another person or entity,who becomes the owner of the copyright An assignment may apply to all economicrights or only to one (example the reproduction right) or a few of them (reproductionand translation rights, for example). It may be limited also to a territory (assignmentof the right to publish in India) and to a period of time (assignment for the entire termof copyright or for a more limited term, say 20 years). The assignee (person to whomthe right has been transferred) becomes the owner of the copyright, with respect to theright, (or rights), term and territory for which the assignment has been granted. Forexample, if an Indian author X has assigned his right to reproduce his novel writtenin English, to a publisher Y, and that the assignment is limited to a period of 20

years and to India, the ownership rights of publisher Y would be limited only toreproductions of the book that take place in India and for a term of 20 years.Anybody who reproduces the novel in India within the term of 20 years but withoutYs authorization will have infringed his copyright. But a publication of the same


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History and Evolutionof Copyrightnovel that takes place outside India does not need Ys authorization, and will not

therefore constitute a violation of the latters copyright.

Assignments ought to be distinguished from licenses. Licensing means that the ownerof the copyright remains the owner but authorizes or enables someone else to exerciseall or some of his rights subject to possible limitations. When such authorization orlicense extends to the full period of copyright and when such authorization or licenseextends to all the rights (except, of course, the moral rights) protected by copyright,the licensee is, vis--vis third parties and for all practical purposes, in the same

position as an owner of copyright.

SAQ 5 Spend2 min.

Identify Right ( ) and Wrong () answers:

i) Copyright vests in the author of the work.

ii) There can be exceptions to the rule at (a) above.

iii) Moral rights can be transferred as much as economic rights.

iv) Under specified circumstances, the licensee can also be an owner of copyright.

1.7 SUMMARY

Tangible concrete, fixed.

Copyrightability worthy of being a copyright.

Public domain freely available for use by anybody.

Data base A data-base is a collection of independent works, data or othermaterial which is arranged in a systematic manner accessible by electronic means.

Territorial basis within the national boundary.

1.8 TERMINAL QUESTIONS Spend 15 min.

1. Identify the three basic principles governing copyright as per the BerneConvention.

2. How has the TRIPS Agreement expanded the scope of copyright?

3. How to the new advances in space satellite technology pose problems forcopyright protection?

4. What are moral rights?


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Block-1 Copyright an Introduction