Mukesh Kumar Narayan 1

7/29/2019 Mukesh Kumar Narayan 1

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Mukesh kumar Narayan

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Ans 1.Concept of Moral Rights

Berne Convention has recognized the moral rights of author which are as follows: i) Paternity

right i.e., to claim the authority of the work even after the assignment of work and integrity right

i.e., the right to protect authors honour and reputation. These are in addition to economic rights.

Section57(1) of the copyright Act(as amended in 1994) has recognized moral rights as authors

special rights as authors special rights. These rights are:

i) to claim authorship of the work ; and

ii) to restrain or claim damages in respect of any distortion, mutilation, or other act in relation to

the said work , if such distortion be prejudicial to his honour and reputation.

Case Law:

In K.P.M. Sundaram V. Ratan Prakashan Mandir the defendant was restrained from printing,

publishing and selling the book of plaintiffs author in distorted form.

In smt. Mannu Bhandari V. Kala Vikas Picture, the Delhi High Court declared that authors rightto restrain distortion of her work is not limited only to cases of literary reproduction but itextends to a film.

Ans 2.The Berne Convention is short for `The Berne Convention for the Protection of Literaryand Artistic Works' which was held in Berne, Switzerland in 1886. Countries that have joined the

Berne Convention are required to provide a minimal copyright duration that is at least the

author's life plus 50 years. The Berne Convention also requires basic copyright protection forpublished works without requiring either copyright notification or registration.

For reference purposes, the following countries have joined the Berne Convention: Argentina,

Australia, Austria, Bahamas, Barbados, Belgium, Brazil, Bulgaria, Cameroon, Canada, Chile,

Colombia, Costa Rica, Czechoslovakia, Denmark, Fiji, Finland, France, Germany, Ghana,

Greece, Guinea, Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Lebanon, Liechtenstein,Luxembourg, Malta, Mexico, Monaco, Morocco, Netherlands, New Zealand, Norway, Pakistan,

Philippines, Poland, Portugal, Senegal, Spain, Sweden, Switzerland, Tunisia, United Kingdom,

United States, Vatican City, Venezuela, and Yugoslavia. The Berne Convention is administered

by the World Intellectual Property Organization having its headquarters at Geneva, which is oneof the specialized agencies of the U.N.


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Ans 3. Fair use is a doctrine that refers to a use of copyrighted material that does not infringe orviolate the exclusive rights of the copyright holder. Fair use is an important and well established

limitation on the exclusive right of copyright owners. Examples of fair use include the making of

braille copies or audio recordings of books for use by visually challenged persons, and the making of

video recordings of broadcast television programs or films by individuals for certain private, non

commercial use.

Amendments related to bring the Act in conformity with WCT and WPPT:

Through a new section in the Act, it is proposed to ensure protection to the Right holdersagainst circumvention of effective technological measures applied for purpose of

protection of his rights like breaking of passwords etc. while maintaining an appropriatebalance between the interests of the right holders on the one hand and of Technology

innovators, Researchers and Educational Institutions on the other.

The existing Performers Rights are proposed to be further enhanced by introducing anew section to provide exclusive rights compatible with WPPT.

The Moral Rights of Performers are proposed to be introduced in a new section. Amendments have been proposed to protect the interests of researchers, students and

educational institutions so as to ensure that Technological Measures do not act as a

barrier for further development of the technology. These amendments also address theissue of access to information in the digital context and the liability of Internet service

providers.

The period of copyright for photographers is proposed to be enhanced to Life plus sixtyyears instead of only sixty years as at present.

Amendment to protect the Music and Film Industry and address its concerns:

Statutory license for version recordings and authorship to ensure thato While making a sound recording of any literary, dramatic or musical work the

interest of the copyright holder is duly protected.

Term of copyright for cinematograph films has been extended by makingo the Producers and Principal director as joint authors.

A copyright term of 70 years to Principal Director which automaticallyo extends the copyright term for the Producers for another 10 years provided he

enters into an agreement with the Director;

Amendments to address the concerns of the physically challenged:


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The physically challenged need access to copyright material in specialized formats, e.g.Braille text, talking text, electronic text, large print etc. for the visually challenged and

sign language for the aurally challenged. Currently the cost of production of material insuch formats is very high. With additional requirement of royalty payments the price of

such material to the target groups would be even higher.

A clause is proposed to be introduced as a fair deal clause to allow the production ofcopies of copyright material in formats specially designed for the physically challenged. A separate compulsory licensing provision has been proposed to allow for publication of

copyright works in formats other than specifically suited for the physically challenged.

Amendments for rights to authors:

Amendment is proposed to give independent rights to authors of literary and musicalworks in cinematograph films, which were hitherto denied and wrongfully exploited, bythe producers and music companies.

An amendment is proposed to ensure that the authors retain their right to receive royaltiesand the benefits enjoyed through the copyright societies.

Another amendment ensures that the authors of the works, particularly songs included inthe cinematograph film or sound recordings, receive royalty for the commercialexploitation of such work.

It has been proposed to introduce a system of statutory licensing to ensure that the publichas access to musical works over the FM Radio and Television networks and at the same

time the owners of copyright works are also not subject to any disadvantages.

It is proposed to amend existing provisions to provide compulsory license throughCopyright Board to publish or communicate to the public such work or translation where

the author is dead or unknown or cannot be traced or the owner of the copyright work in

such work cannot be found.

Other amendments

Amendments are being made for incidental changes, which are required in the context ofdigital technology to cover storing of copyrights material by electronic means.

Amendments in relation to operational facilities, such as registration of CopyrightSocieties by providing that only authors can register and procedure for tariff schemes of

copyright societies and commercial distinction between assignment and licence; and

Enforcement of rights such as border measures, disposal of infringing copies andpresumption of authorship under civil remedies.


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Ans 4. The liability for copyright infringement rests on three theories- direct i.e. primary

infringement, vicarious and contributory infringement. Vicarious liability arises when a person

fails to prevent infringement despite having the ability to control the infringers Act and hereceives a direct financial benefit from the infringement This theory is based on the strict liability

principle without any regard to mental state or intention. While Contributory liability arises when

a person participates in the act of direct infringement and has knowledge of the infringingactivity. The question here arises as to which standard should be applied in order to fix the

responsibility of service providers. The above positions must therefore be weighed against the

Indian laws applicable to the purported liability.

ISP liability under Copyright Act, 1957

Section 51 of the Copyright Act, 1957 provides for activities which amount to copyright

infringement.

Section 51 Copyright in a work shall be deemed to be infringed-(a) when any person, without a license granted by the owner of the copyright or the Registrar of

Copyrights under this Act or in contravention of the conditions of a license so granted or of any

condition imposed by a competent authority under this Act-(ii) permits for profit any place to be used for the communication of the work to the public where

such communication constitutes an infringement of the copyright in the work, unless he was not

aware and had no reasonable ground for believing that such communication to the public would

be an infringement of copyright.

ISP liability under Information Technology Act, 2000

The provisions in relation to ISPs are provided under the IT Act U/s 79 which limits the liability

of ISPs. The section illustrates: for the removal of doubts, it is hereby declared that no personproviding any service as a network service provider shall be liable under this Act, rules or

regulations made there under for any third party information or data made available by him if he

proves that the offence or contravention was committed without his knowledge or that he hadexercised all due diligence to prevent the commission of such offence or contravention. Here

network service provider is referred to intermediary and third party information means any

information dealt with as by a network service provider in his capacity as an intermediary.

The section limits the liability of the ISPs by two ways:

ISP has exercised all due diligence to prevent commission of offence and Offence so committed is without the knowledge of ISP.

Case Law:Super Cassettes Industries Limited v. YouTube & Google SCIL claimed that the business model

of YouTube allows, encourages and profits from use of copyrighted work uploaded on the

website without obtaining any license or permission from the rightful copyright owners and


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without paying them any royalty. The High Court passed the order against YouTube and Google

restraining them from reproducing, adapting, distributing, communicating, transmitting,

disseminating or displaying on their websites or otherwise infringing any audio-visual works

in which the plaintiff [SCIL] owns exclusive, valid and subsisting copyright.

Further Delhi High Court granted Super Cassette Industries an interim stay order, restrainingIndian website www.santabanta.com from streaming audio and video content from some movies

for which T-Series has music rights. In the case T-Series has alleged that Santabanta.com was

publishing songs from the movies like Salaam-e-ishq, Honeymoon Travels, etc without any

authorization from the company.

Ans 5. The term neighbouring rights is exactly equivalent, and is a more literal translation of

the original French droits voisins. Related rights in civil law are similar to authors' rights, but are

not connected with the work's actual author. Both authors' rights and related rights are copyrights

in the sense of English or U.S. law. There is no single definition of related rights, which vary

much more widely in scope between different countries than authors' rights. . The rights of

performers, phonogram producers and broadcasting organizations are internationally protectedby the Rome Convention for the Protection of Performers, Producers of Phonograms.

Under droit

dauteur (or authors' rights) systems, such producers and performers rights would be protectedas neighboring rights. Neighboring rights, while similar in economic character to authors rights,may be protected at a lower level than authors' rights and are entirely separate and distinct from

the higher-level rights granted to authors.

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Mukesh Kumar Narayan 1