copyright --evolution and elements--SEPT 16.ppt

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COPYRIGHT LAW IN INDIA:

EVOLUTION AND ELEMENTS IGNOU

September 16, 2007

Raman MittalReader Faculty of Law

University of Delhi



History of Copyright Law

• St. Columba and

King Diarmid

“To every cow her calf

and to every book its

copy”



Copyright philosophy is age old

• Kalidaas was

the court poet

during the

reign of kingVikramaaditya

• Akbar the

great includedartistes in

Navratnas



1709 - Anne guards the books

• Publishers are up in arms

• The problem: fast and loosereplication and sale of books without

proper compensation• The remedy: first Parliamentary

copyright law, Statute of Anne

Gives copyright holders exclusive

rights to distribution and copying for a period of 20 years



1908 Player pianos are all the rage

• Publishers of player-piano rolls aremaking a killing selling recordingsof popular tunes--without payingcomposers a dime

• Music publishers file suit, claimingcopyright infringement

• The Supreme Court rejects their claim, reasoning that the law

doesn't cover player-piano rolls• Congress amends law to include

licensing fees for player-pianorolls & phonograph records



1984 -Video saves the movie star

• Joes & Janes have the ability to

make copies of movies

• Universal Studios v. Sony

• US SC upholds citizens' fair-useright to make home recordings

• 2 decades later, while box office

receipts add up to about $8.4 billion, video sales and rentals

are a $16.9 billion market --not

bad for the lawsuit's losers



What is copyright all about

• Recognition, maintenance, protection and

encouragement

• Author‟s rights that are now created by statutes

have always existed in the legal consciousness

of mankind

©



CREATIVITY TECHNOLOGY

COPYRIGHT

+



Copyright law: history

UK

• 1709- I statute

• 1814

• 1842

• 1911-

consolidated

• 1956

• 1988

USA• 1790

• 1891

• 1909• 1976:

considered to be the mostadvanced

enactment

INDIA

• 1914: I law

• 1957

• Amendments

– 1983

– 1984

– 1992 – 1994

– 1999



Copyright law: general principles

• Copyright- a creation of statute

• No copyright except as provided under the

Act – S. 16 • No common law copyright

• Law grants exclusive rights under copyright

• Protection is automatic

• Is copyright a monopoly?



Copyright – rights conferred

• Copyright – creation of statute

– Rights within copyright have to be defined in the

statute itself

– Sections 14, 57, 37, 38 and 39 of the Copyright

Act, 1957 deal with the rights

– The rights are exclusive rights – But subject to the other provisions of the statute



Copyright – rights conferred

• Copyright – a bundle of rights

• Rights available only to works

mentioned under the Act - S. 13

– Original Literary, Dramatic,Musical and Artistic Works

– Cinematograph Films

– Sound Recordings

• Rights vary depending on thecategory of works



Cases

• Donoghue v. Allied Newspapers Ltd [1937] 3

All ER 503• Najma Heptulla v. Orient Longman Ltd. AIR

1989 Del. 63



©Economic Rights Moral Rights

section 14 section 57



Author‟s special rights -- Moral Rights

• Independently of the author's copyright and evenafter the assignment---, the author of a work shallhave the right-

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work which is done

before the expiration of the term of copyright if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation



Economic rights

• In the case of a literary, dramatic or musical work,not being a computer programme -

– to reproduce the work in any material form… – to issue copies of the work to the public ….

– to perform the work in public, or communicate itto the public

– to make any cinematograph film or soundrecording…

– to make any translation of the work

– to make any adaptation of the work



Economic rights: computer

programme• In the case of a computer programme-

– to do any of the acts specified earlier

– to sell or give on hire, or offer for sale or hire,any copy of the computer programme

– regardless of whether such copy has been sold

or given on hire on earlier occasions



Economic rights: cinematograph

film• In the case of cinematograph film -

– to make a copy of the film, including a photograph

of any image forming part thereof

– to sell or give on hire, or offer for sale or hire, any

copy of the film, regardless of whether such copy

has been sold or given on hire on earlier occasions; – to communicate the film to the public



Economic Rights -- ResaleRights

• Author’s right to claim a share of theproceeds of each public resale of originalcopies of works of fine art or original

manuscripts within the term of protection(S.53A)

• Resale price to exceed Rs. 10,000

• Share to be fixed by Copyright Board• Maximum 10%



SUBJECT MATTER OFCOPYRIGHT



Literary Works

• Literary work includes computer programmes,tables and compilations including computer databases [Sec. 2(0)]

• A name

Du Boulay v. Du Boulay (1869) LR 2 PC 430• "... in this country we do not recognise the

absolute right of a person to a particular name tothe extent of entitling him to prevent the

assumption of that name by a stranger. ... the mereassumption of a name, which is the patronymic of a family, by a Stranger who had never before beencalled by that name, whatever cause of annoyanceit may be to the family, is a grievance for which

our Law affords no redress."



• Titles of books, movies, etc. – Francis Day and Hunter Ltd.

v. Twentieth Century FoxCorp., AIR 1941 PC 55

• Plaintiff had released a songtitled The man who broke

the bank in Monte Carlo• Lord Wright held that a

name alone cannot possesscopyright unless it issufficiently original anddistinctive.

– Sholay



Advertisement Slogans

• Yeh dil mange more

– Registered as trademark and Copyright – Yeh Dil Maange No More by coca cola

– Advertising catch phrases entitled to copyright

http://images.google.co.in/imgres?imgurl=http://www.bangalorebest.com/cityresources/Advertising_and_Marketing/img/pepsi.jpg&imgrefurl=http://www.bangalorebest.com/cityresources/Advertising_and_Marketing/pepsiblues.asp&h=178&w=289&sz=11&hl=en&start=7&um=1&tbnid=e-8slCgh-vCEqM:&tbnh=71&tbnw=115&prev=/images%3Fq%3Ddil%2Bmange%2Bmore%2Bpepsi%26svnum%3D10%26um%3D1%26hl%3Den



• Question Papers

• Panchang

• Catalogues

• Compilations

• News

• Letters

• Questionnaire

• Lectures

• Computer Programmes

• Databases



EBC v. Navin J. Desai, 2002 PTC 641• EBC publish law reports under the name of SCC

• published "SCC Online Supreme Court CasesFinder ” and full text on CD

• Claims copyright in the headnotes, selection,manner of arrangement and presentation of the

judgments both in print and in electronic forms

• Defendant Navin J Desai has developed 'TheLaws' & defendant DB Modak has developed'Grand Jurix' in 3 CDs

• EBC filed suits

• The defendants argued that –

– Their work was much wider in scope than thatof the plaintiff

– Plaintiffs filed suits with intent to stunt healthycompetition by retaining monopoly



Fixation

• The work -- not the same thing as its physicalvehicle or container

– it is a piece of intellectual , not physical property

• Buyer of a book/picture/CD becomes the owner of a piece of physical property but not IPR in it

– you cannot exploit the work by making morecopies of it and selling them, and so on

• So we have to think of the work as somethingimmaterial



Fixation• Laws of many countries require, for practical reasons,

that to qualify for copyright protection a work musthave been fixed in material form

– e.g. a literary work should have been written downor a musical work recorded in notation or otherwise

– Art. 2.2 of the Berne Convention leaves it tonational laws

• Copyright Act, 1957 does not specifically requirefixation of the work as a precondition of protection



Dramatic Works• “Dramatic work” includes any piece for

recitation, choreographic work or entertainmentin dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematographfilm [s. 2(h)]



Musical Works

• "musical work" means a work

consisting of music and includesany graphical notation of suchwork but does not include anywork or any action intended to

be sung, spoken or performedwith the music [section 2(p)]

• Both written and unwritten – Separate Rights in Lyric and Music



Artistic Works

"artistic work" means,--i. a painting, a sculpture, a drawing

(including a diagram, map, chart or plan), an engraving or a photograph,whether or not any such workpossesses artistic quality;

ii. an architectural work of art; and

iii. any other work of artistic craftsmanship [S. 2(c)]

• Artistic quality?



Cinematograph Films

• "cinematograph film" means any work of visualrecording on any medium produced through a processfrom which a moving image may be produced by anymeans and includes a sound recording accompanying

such visual recording and "cinematograph" shall beconstrued as including any work produced by any

process analogous to cinematography including videofilms [section 2(f)]

• Author is the producer [section 2(d)(v)]

• Feature film, Documentary,Video,TV film



Sound Recording

• "sound recording" means a recording of sounds from which such sounds have been produced regardless of the medium on which

such recording is or the method by which thesounds are produced [section 2(xx)]

• Author of sound recording is the producer

• No qufn. of „original‟



If infringing material used

• Copyright shall not subsist --

– in any cinematograph film if

• a substantial part of the film is an infringement of the copyright in

any other work [section 13(3)(a)]

– in any sound recording made in respect of a literary,

dramatic or musical work, if

• in making the sound recording, copyright in such work has been

infringed [section 13(3)(b)]

• Separate Rights in the Works Embodied in Film or Record [S.13(4)]



Copyright is the Cindrella of

law. Her rich older sisters,

Franchises and patents, longcrowded her into the

chimney-corner. Suddenly

the fairy godmother,

Invention, endowed her withmechanical and electrical

devices as megical as the

pumpkin coach and the mice

footman. Now she whirlsthrough the mad mazes of a

glamorous ball.

Z. Chafee



Copyright in Digital Domain and

Exploitation of Copyright

Raman MittalReader Faculty of Law

University of Delhi



Authorship

• Differs from one category toanother

2(d) "author" means,--

i. in relation to a literary or

dramatic work, the author of the work;

ii. in relation to a musical work,the composer;

[2(ffa)"composer", in relation to a musical work,means the person who composes the musicregardless of whether he records it in anyform of graphical notation]



Authorshipiii. in relation to an artistic work other than a

photograph, the artist;iv. in relation to a photograph, the person taking

the photograph;

v. in relation to a cinematograph film, or soundrecording, the producer;

[2(uu) "producer", in relation to a cinematograph film or soundrecording, means a person who takes the initiative and responsibility

for making the work] and

vi. in relation to any literary, dramatic, musical or artistic work which is computer-generated, theperson who causes the work to be created



Authorship and ownership

• Normally, author is the first owner

• S.17 provides for the following cases where (in the absenceof any agreement to the contrary) the first owner of copyrightis someone other than the author

• If an author creates a literary, dramatic or artistic work in the

course of employment in a newspaper, magazine or similar periodical, which is for the purpose of publication in the periodical, then the proprietor is the first owner of copyrightfor the purpose of such publication, though not for other

possible uses of the work

b. subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or anengraving or a cinematograph film made, for valuableconsideration at the instance of any person, such person;



c. in the case of a work made in the course of the author'semployment under a contract of service or apprenticeship,to which clause (a) or clause (b) does not apply, the

employer cc. in the case of any address or speech delivered in public,

the person who has delivered such address or speechnotwithstanding that the person who delivers such addressor speech is employed by any other person who arranges

such address or speech;]

d. in the case of a Government work, Government;

dd. in the case of a work made or first published by or under the direction or control of any public undertaking, such

public undertakinge. in the case of a work to which the provisions of Section 41

apply, the international organisation concerned shall be thefirst owner of the copyright therein.



Exploitation

• Copyright--a bundle of rights• Each of these rights can be jointly or severally

exploited

• Such transfer can be done throughassignment or licensing

– Both these terms have legally significantdifferences



Assignment

• Legal nature of assignment?• In essence--a transfer of

ownership

• May be for whole of the rights

or for part only• Can copyright be assigned in

respect of future works?

– When will the assignment

take effect?• Need not be in any special form

-- Written and signed [19(1)]



Assignment

• An assignment deed should specify the following:

– identification of the work assigned, (19(2))

– specify the rights assigned (19(2))

– duration of the assignment (19(2))

– extent of such assignment (19(2)) – amount of royalty payable (19 (3))

• If assignee does not exercise the rights assigned?

• Can assignee further assign the rights?

• Can an assignee independently sue for infringement?



Disputes with respect to assignment

(1) If an assignee fails to make sufficient exercise of therights assigned to him, then, the Copyright Boardmay, on receipt of a complaint from the assignor andafter holding such inquiry as it may deem necessary,

revoke such assignment.(2) If any dispute arises with respect to the assignment

of any copyright the Copyright Board may, on receiptof a complaint from the aggrieved party and after

holding such inquiry as it considers necessary, passsuch order as it may deem fit including an order for the recovery of any royalty payable: – [19A]



• A license is an authorization of an act which, withoutsuch authorization becomes infringement

• In essence a license is a grant of authority to do a particular thing which otherwise could not have been

done – amounts to a consent or permission granted by the owner of copyright that the licensee could carry out a restrictedact which but for such permission could have been aninfringement

• Owner of copyright in an existing work or futurework „may grant any interest in the right by licensein writing signed by him or his duly authorizedagent‟ (S. 30)



Exclusive & Non Exclusive Licenses• “exclusive license” 2(j) -- a license which confers

on the licensee and persons authorised by him, tothe exclusion of all other persons (including theowner of the copyright), any right comprised inthe copyright in the work.

• A non exclusive license on the other hand does notconvey any right of exclusion. – It is only a grant of an authority to do a particular thing

which otherwise would have constituted infringement.

• When a right owner grants an exclusive right, he

denudes himself of all the rights and retains noclaim on the economic rights so transferred.



License and Assignment

• Transfer of ownership of the rights – Assignment leaves nothing in the grantor qua the

right assigned bestowing in the grantee the wholeof the legal interest in the right

• Capacity to sue for infringement – A licensee cannot sue for infringement of copyright unless he joins the copyright owner asa co plaintiff in the action.

• S. 61 of the Act provides that in every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, theowner of copyright shall be made a defendant,unless the court otherwise directs



Collective management

• Individual management of rights is virtuallyimpossible with regard to certain types of use

• An author cannot for instance contact every singleradio or television station to negotiate licenses

• To bridge the gap between them

• Collective management is the exercise of copyrightby organizations acting in the interest and on

behalf of the owners of rights• One stop shop



51. When copyright infringed

(a) when any person, without a licence granted bythe owner of the copyright-

(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the

copyright, or (ii) permits for profit any place to be used for thecommunication of the work to the public wheresuch communication constitutes an infringementof the copyright in the work, unless he was not

aware and had no reasonable ground for believingthat such communication to the public would bean infringement of copyright; or



Remedies for infringement

• Civil

– injunction, damages andaccounts, delivery of infringingcopies and damages for conversion

• Criminal

– Imprisonment, fine, seizure

• Administrative – Restrain on importation



COPYRIGHT IN DIGITAL

DOMAIN



Internet – latest challenge to copyright

• Greater challenge to copyright system than ever before

• Whenever developments in technology affect arts

practice they also act as a catalyst for review andchange in the laws of copyright

• Can the existing formulations of the law cope withthe effects of the new technology?

Enhanced intensity of private possibilities of use

Loss of control



I n t e r n e tmp3

Napster Server

P2P

Your computer

Napster client

G t ll



me

user

user

user

user

user

user

user

user

user user

user

user

user user

user user

File

download

I‟ve it

Gnutella

Network



Kazaa

Network

Supernode



MGM Studios, Inc. v. Grokster, Ltd. (04-0480), 125 S. Ct. 2764 (2005)

• The Court unanimously held that defendant P2Pfile sharing companies Grokster and Streamcast(maker of Morpheus) could be sued for inducingcopyright infringement for acts taken in the courseof marketing file sharing software.

• Frequently characterized as a re-examination of the issues in Sony Corp. v. Universal City Studios

• It has to be shown that the distributors of the program have advertised and/or otherwise induced

its use for copyright infringement; if this intentcan be shown, additional contributory aspects may be relevant



Effects of the decision

• On November 7, 2005 Grokster announcedthat it would no longer offer its peer-to-peer file sharing service.

• The notice on their website said, " The United

States Supreme Court unanimouslyconfirmed that using this service to tradecopyrighted material is illegal. Copyingcopyrighted motion picture and music files

using unauthorized P2P services is illegaland is prosecuted by copyright owners."

• Grokster was forced to pay $50 million to themusic and recording industries.



Law reform and litigation

• WCT and WPPT

• Consequent reforms and amendments innational legislations around the world

• Litigation



RMI: Definition

[I]nformation which identifies the work, the author

of the work, the owner of any right in the work, or

information about the terms and conditions of

use of the work, and any numbers or codes that represents such information, when any of these

items of information is attached to a copy of a

work or appears in connection with the

communication of a work to the public Art. 12(2) of WCT, 1996

Contracting Parties shall provide adequate and effective



Contracting Parties shall provide adequate and effectivelegal remedies against any person knowingly performingany of the following acts knowing, or with respect to civil

remedies having reasonable grounds to know, that it willinduce, enable, facilitate or conceal an infringement of any right covered by this Treaty or the BerneConvention:

(i) to remove or alter any electronic rights managementinformation without authority;

(ii) to distribute, import for distribution, broadcast or communicate to the public, without authority, works or copies of works knowing that electronic rights

management information has been removed or alteredwithout authority

Art. 12(1) of WCT



Technological protection measures• the answer to the machine is the machine

– Anti-copy devices – Access control

– Electronic envelopes

– Proprietary viewer software

– Encryption – Passwords

– Watermarking

– Electronic lamination

– Biometrics (user authentication) – metering and monitoring of usage

– encapsulating copyrighted works in a tamper-resistant electronic envelope

– remuneration systems



©



Exclusive

rights

Limited in time

Fair use

©

I i th



Technological

protection

measures

Increasing the scope

of copyright by contracts

Legal protection against

Circumvention of technological

protection measures

Gagging of fair use



© Exclusivity

Limitations

Challenge to balance



Challenge to balance

• Ensure that the laws of

copyright adapt to the newtechnological environment

• Right of copyright owners toequitable remunerationshould always be balanced

with the interests of societyat large

The key is to balance



For feedback:

[email protected]@yahoo.com

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copyright --evolution and elements--SEPT 16.ppt