COPYRIGHT & RELATED RIGHTS

Right given to creators - Authors, composers, computer programmers, website designers & others Gives the creators a legal protection for their literary, artistic, dramatic & other types of creations, referred to as `works

Copyright is the legal protection extended to the owner of the rights in an original work that he has created.

The Copyright Act, 1957

Section 2(y) of the Copyright Act, `work means any of the following works, namely: i) A literary, dramatic, musical or artistic work; ii) A cinematograph film; iii) A sound recording

 i)

Section 2 defines artistic work as: A painting, a sculpture, a drawing (including a diagram, a map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; ii) A work of architecture; and iii) Any other work of artistic craftsmanship

 Section 2 (h) defines dramatic work as any piece of recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film

 Section 2(p) defines musical work as a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music

 Section 2 (o) defines literary work as computer programs, tables and compilations including computer databases

 Section 2 (f) defines cinematograph film as any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and `cinematograph shall be construed as including any work produced by any process analogous to cinematography including video films

 Section 2 (xx) defines sound recording as a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is, the method by which the sounds are produced

What is covered by copyright?

literary works such as novels Poems Plays reference works

newspapers

computer programs

Databases

Films

musical compositions

Choreography

Paintings

drawings

photographs

sculpture Architecture advertisements

maps
technical drawings

Creativity
Creation goes through various steps which can be broadly divided

Conception
Design & development Commercial manufacture. At each of these stages, there are works which are created that can be protected in law

Copyright
It comprises two main sets of rights: Economic Rights Moral Rights

 A diverse bundle of exclusive rights limited but lengthy period of time Control the economic use Moral rights authors reputation and integrity

 In principle, the term of protection is the creator's lifetime and a minimum of 50 years after his death In India it is 60 years after the death of the author

 The economic rights are the rights of

reproduction broadcasting public performance adaptation translation public recitation public display distribution

 Owner derives a financial reward from the use of his works by others

 The owner can authorize/ prevent a) Reproduction in various forms b) Distribution of copies c) Public performance d) Broadcasting and other communication to the public e) Translation to other languages f) Adaptation : Novel to screenplay

Right to Reproduction
Most basic right Right to authorize distribution : Owner derives economic value Right to authorize rental of copies Right to Importation

Rights of Public performance, broadcasting , communication

Public performance : Any performance of a work at a place where the public is or can be present; or at a place not open to the public , but where a substantial number of persons outside the normal circle of family etc is present Includes means of recordings

Broadcasting rights
Covers the transmission for public reception of sounds, or of images and sounds, by wireless means , whether by radio , TV, or satellite Can be replaced by equitable remuneration

Translation and adaptation rights

Needs authorization from owner of original work AND the owner of translation and adaptation Translation : Expression of a work in a language other than the original version Adaptation : Modification of a work to create another work

 Related rights
o rights given to performers actors and musicians o phonogram producers producers of sound recorders o broadcasters radio and television programs Copyright protects the works of authors themselves Related rights Performing, communicating and disseminating works to public E.g. A song

Rights of Broadcasting Organizations': Subsists for 25 years from the beginning of the calendar year next following the year in which the broadcast is made Performers Rights: Subsists for 50 years from the beginning of the calendar year next following the year in which the performance is made

 The moral rights include:

the author's right to object to any distortion, mutilation, other modification of his work that might be prejudicial to his honor or reputation

Copyright Act
Section 57 Authors special rights

(1) Independently of the authors copyright and even after the assignment either wholly or partially of the said copyright, the author of a work shall have the righta) To claim the authorship of the work 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:.

 i)

According to Section 2(d) author means:

In relation to literary or dramatic work, the author of the work; ii) In relation to a musical work, the composer; iii) 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 sound recording, the producer; and vi) In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created

Moral Rights
The right to be named as the author of the work when a persons work is communicated to the public, the person doing so must make sure that the authors name appears on or in relation to the work Cannot transfer moral rights

 Moral rights : Independent of Economic rights Remains with the author even if economic rights are transferred They exist in perpetuity Cannot be licensed or assigned Given only to individual authors

 Protect the integrity of the work prohibits the

making any changes to a work that would tend to damage the authors honor or reputation. Example Architect Santiago Calatrava in the city of Bilbao, Spain. Commissioned to build a bridge. Called Zubi Zuri. Later for development commissioned Japanese architect, Isozaki Atea. Break the balustrade and build extension. Calatrava took Bilbao City Council to court claiming violation of moral right to integrity of his work. The conclusion

 Moral rights : Preserves the personal link between himself and his work a)Right to claim authorship (Right of paternity) a)Right to object to any distortion/ Modification of the work which can be prejudicial to the authors honor or reputation ( Right of integrity)

How are these rights relevant

Control commercial exploitation of original work
Books, music, films, computer programs, original databases, advertisements, content on websites, video games, sound recordings, radio & television programs or any other creative works sustainable competitive edge

Generate Income Selling (e.g. prints of a painting or a photograph) Assign or sell copyright to another person or company License Raise Funds Use bundle of exclusive rights as a collateral Take action against infringers Use work owned by others, e.g. playing music

How to obtain copyright and related rights

Copyright and related rights are granted without any protection a work is AUTOMATICALLY protected as soon as it is created An unprotected work is difficult to defend in case of an infringement National Copyright Office

How to protect rights

Copyright Office get it registered at the national office Deposit a copy with a bank or lawyer. Send a copy to yourself in a sealed envelope with a clear date stamp on it and leave it unopened. Mark with a Copyright notice Mark your works with Standard Identification Numbering System

Procedure in India
Application Form Form IV, in triplicate Application fee Statement of Particulars Statement of Further Particulars Notice of Application to every person who claims or has any interest in the subjectmatter of the copyright or disputes the rights of the applicant to it

 If no objection is received by the Registrar within 30 days of the receipt of the application, entries made in the Register of Copyrights If an objection received an inquiry is held enters such particulars as he may deem proper

 International Treaties harmonize laws of various countries

The Berne Convention (1886) main treaty; the rule of national treatment, meaning that in every country, foreign authors enjoy the same right as national authors The Rome Convention, The Phonograms convention, The TRIPS Agreement harmonizing international trade with protection and enforcement of IP rights.

Criteria for protection

Work must be original. Originality relates to the form of expression and not the underlying idea, concept, process, discovery, method of operation.

The originality relates to form of expression, not the underlying idea. The work should be fixed in some material form written on paper, stored on a disk, painted on a canvas or recorded on a tape. E.g. choreographic works or improvised speeches or music performances that have not been recorded or notated, are not protected Copyright protects both published and unpublished works Creating an original work requires labor, skill, time, ingenuity and mental effort. A work with no creative element, quality or value still enjoys the right of protection, irrespective of artistic or literary merit.

Work not protected by Copyright

Ideas or concepts.
Examples The existence of a superhero is an idea. Its expression in the form of various characters like Superman, Batman, Spiderman etc. A particular photograph of sunset can be protected, but cannot stop others from taking pictures of the sunset. Your company has manual that describes method of brewing beer. The way you have written the manual and the phrases and illustrations used is your copyright. You cannot prevent others from using the machinery, processes and merchandising methods described in the manual or prevent others from writing another manual on brewing beer.

Facts or information
Does not protect historical, scientific, biographical or news, facts. Only the manner in which it is presented. Example: A biography of a person may contain several facts which he has spent considerable time exploring. This cannot prevent others from using the same facts in their work. One can use information in a recipe book to cook a dish, but cannot make copies of the recipe book. Names, titles, slogans and other short phrases Official government works have no copyright protection in some countries Works of Applied Art

 Ideas, Concepts, Discoveries Titles, names, short phrases, slogans Improvised speech or dance : Works not fixed in a tangible form Information commonly available and containing no originality

Ownership of Copyright
Authorship and ownership Author The person who created the work Owner The person who has the exclusive right to exploit the work commercially issue of authorship more important in case of moral rights and to determine the expiry of copyright Moral rights always belong to the individual creator. Companies do not have moral rights. E.g. if a company produces a film, only the director and screenplay writer have moral rights

Work of an employee
If work created within the scope of employment, then employer is the owner of copyright, unless an agreement to the contrary is there Deed of assignment work has to be specifically assigned to employer E.g. a computer programmer working for a company economic rights over software belong to the company

Commissioned Work
In most countries the creator has the copyright; Person who ordered the work has license to use for the commissioned purpose E.g. composers, photographers, freelance journalists, graphic designers, computer programmers and website designers Exceptions private photographs, portraits and engravings, sound recording, cinematographic films the commissioning party owns copyright US law - Work for hire entity that pays is the owner

 Re-use of commissioned work E.g. advertisement for a company Outsource to an advertising firm Under most national laws, ad firm is the owner, unless agreed otherwise Later use part of the ad on its website Permission from the ad firm Initially website was not envisaged not a part of the contract

Works of several authors - ownership

Joint works When two or more authors agree to merge their contributions into an inseparable or interdependent combination of the individual contributions, a joint work is created Contributing authors are joint owners All joint owners must consent to the exercise of copyright Written Agreement Ownership and use issues, rights to revise the works, marketing and sharing of any revenue, and warranties against infringement

Collective works Each author owns the copyright in the part he/she created Contributions to be used separately E.g. compilation of songs in a CD Magazine containing articles by freelance authors

Derivative works
Work based on one or more pre-existing works, such as a translation, musical arrangement, art reproduction, dramatization or motion picture version Take permission from the copyright owner Derivative work itself has copyright Adaptation of a book into a movie.

Assign or License
Sell the works Copyright remains with the author, e.g.
books, computer programs

Sell the copyright Assignment. Again only the

economic rights and not the moral rights can be sold

License Permission granted to others to exercise one or

more of your economic rights. You can license some rights and not others. E.g. Licensing the right to copy and use a computer game, you may retain right to create derivative works

Collective Management Organization

Collective management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the

owners of rights.

 Most of the time an author is not materially capable of monitoring all uses of his works; he cannot for instance contact every single radio or television station to negotiate licenses and remuneration for the use of his works.

Conversely, it is not practical

for a broadcasting

organization to seek specific permission from every

author for the use of every

copyrighted work.

Therefore, the role of Collective management organizations is to bridge the gap between the owner of rights and the user.

Core Activities of CMO

Documentation of works of its members Licensing and collecting royalties on behalf of its members Gathering and reporting information on the use of works Monitoring and auditing Distribution of royalties to its members Reciprocal arrangement with other CMOs throughout the world

Advantages
One stop shop greatly reduces administration burden for users and right holders Collective Bargaining allows owners to obtain terms and conditions Blanket license allows the licensee to use any item in the CMOs catalogue Enforcement and education

Collective Management in Music Industry

Mechanical Rights collected on behalf of authors, composers and publishers Performance Rights collected on behalf of performers and phonogram producers Broadcast Corporation pay for right to broadcast music the composer assigns his/her rights to a CMO in turn negotiate with all those interested in publicly performing music CMO pays royalties to the composer

Collective Management Organizations

Handle all aspects of licensing Considerable time, money and effort gather market
information, search for potential licensors and negotiate contracts Example TV and radio stations monitor uses of works on behalf of creators and are in charge of negotiating contracts and collecting payments Intermediaries between users and owners of copyright

The following are the registered copyright societies in India:

Society for Copyright Regulation of Indian Producers for Film and Television (SCRIPT) 135 Continental Building, Dr. A.B. Road, Worli, Mumbai 400 018, (for cinematograph and television films). The Indian Performing Right Society Limited (IPRS), 208, Golden Chambers, 2nd Floor, New Andheri Link Road, Andheri (W), Mumbai- 400 058 (for musical works). Phonographic Performance Limited (PPL) Flame Proof Equipment Building, B.39, Off New Link Road, Andheri (West), Mumbai 400 053 (for sound recordings).

Using Works Owned by Others

Need Permission to use other peoples work if it is covered by copyright and/or related rights The work is not in public domain If intended use is not fair use

 Do not need Permission

Facts and ideas and not the expression is used Public Domain Fair use
Quotations from a work Research and study Libraries and archives original prints too delicate to handle Educational purposes

Free use
Categories of works : works not fixed in tangible form Particular acts of exploitation which can be carried out without authorization: a)Free use : No obligation to compensate the owner b)Non voluntary licenses

Free use
Quoting from a protected work Illustration for teaching purposes News reporting

Fair use
Also called Fair dealing ( Sec 52 of copyright act) Allows without authorization : a) Nature and purpose of use : Commercial nature or for Non-profit use? b) Amount of work with respect to the whole work: Quotes/ Images not covering substantial volume c) Likely effect of the use on potential commercial value. Cannot be authorized in case the copied work exceeds the commercial work of the original

Examples of Fair use

Class studying an artist using samples to critique and analyze his/her work; Making a collage for a school project; Manipulating an image to learn Photoshop or other software.

Checklist
Maximize your copyright protection Ascertain copyright ownership Avoid infringement Get the most out of your copyright

Infringement
The burden of proof falls on the rights owner Cease and desist letter Surprise check on infringer's premises Legal proceedings Criminal remedies National Customs Authorities prevent
importation of pirated copies

COPYRIGHT INFRINGEMENTS
The following are some of the commonly known acts involving infringement of copyright: Making infringing copies for sale or hire or selling or letting them for hire; Permitting any place for the performance of works in public where such performance constitutes infringement of copyright; Distributing infringing copies for the purpose of trade or to such an extent so as to affect prejudicially the interest of the owner of copyright ; Public exhibition of infringing copies by way of trade; and Importation of infringing copies into India.

 What are the civil remedies for copyright infringement? A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts. Which is the court having jurisdiction over civil remedies in copyright cases? The District Court concerned has the jurisdiction in civil suits regarding copyright infringement.

 Is copyright infringement a criminal offence? Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act. What are the punishments for a criminal offence under the copyright law? The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh.

 A copyright notice or copyright symbol is an identifier placed on copies of the work to inform the world of copyright ownership. While use of a copyright notice was once required as a condition of copyright protection, it is now optional. Acts as a deterrent Willful infringement

 Copyright Notice All rights, including copyright, in the content of these BBC web pages are owned or controlled for these purposes by the BBC. In accessing the BBC's web pages, you agree that you may only download the content for your own personal non-commercial use. Except where expressly stated otherwise, you are not permitted to copy, broadcast, download, store (in any medium), transmit, show or play in public, adapt or change in any way the content of these BBC web pages for any other purpose whatsoever without the prior written permission of the BBC.

Design or Copyright?
In some countries, applicable law recognizes copyright protection for certain designs, e.g. in the design of textile and fabrics In some countries cumulative protection (i.e. copyright and industrial design protection) can exist concurrently In some countries mutually exclusive In India, if a design is registered under the Designs Act, not eligible for protection under the Copyright Act Only a design not registrable under Designs Act comes under the scope of Copyright Act if it qualifies as artistic work

Differences
Registration
Design needs to registered before publication or public use In copyright, registration not required for protection

Duration
ID protection lasts from 10 to 25 years depending on the country. The registration process may take some time, not always adequate for products with passing trends Copyright endures for a long time

Scope of Protection
The right conferred by ID is absolute right there is infringement whether or not there is deliberate copying The onus of proving infringement is on the copyright owner Section 15 of the Copyright Act - If a design is registrable under the Designs Act and you do not register it, your copyright will subsist under the Copyright Act, but if you make more than 50 copies of the design by an industrial process, you loose copyright on it

 Types of products
Not all designs covered by copyright. E.g. shape of a manufactured product covered by design, but textile designs covered by both

Costs
Design registration certainly costs more

In summary protection granted by design registration is

stronger covers unintentional infringement Advisable to keep records of every step in the development of the design signing and dating each step and properly archiving them.

Sita Sings the Blues

Nina Paley in a copyright tussle over music rights 1920s music of Annette Hanshaw

The copyright over the recordings has expired, but the underlying lyrics and written music is still under copyright Big Boys EMI, Sony-ATV Music Publishing among others The royalty for original songs $220,000 Step Deal Sale of every DVD - royalty

Gandhijis Works
Gandhijis entrusted the copyright of his works to Navjivan Trust, Ahmedabad The copyright on his works has expired this year The fear of distortion The Trust is not asking for extension The prices will soar Navjivan Trust will continue publishing at lower prices

 Tarun Tahiliani vs. Rajesh Masrani Rajesh Masrani infringed the copyright of artistic works of Mr. Tahiliani Artistic Works the drawings made in the course of developing garments, the patterns printed and embroided on the fabric were also artistic work First argument Section 15(2) of the Copyright Act only 20 copies made

Mattel Inc. vs. Agarwala Brothers Mattel won on Trademark infringement grounds Mattel lost on Copyright infringement grounds Court held that cannot have copyright on idea In a game, the underlying idea not very different from expression They continue called Wordscraper

Microfibres vs. Girdhar

Microfibres American company upholstery fabrics Drawings applied to upholstery fabric copyright both registered and unregistered Court decision the print on the upholstery fabric was made more than 50 times, lost copyright Registered in UK as designs Prints not work of art as in a painting The purpose not to put on the wall, but put to industrial use

The Valaya Diasun

Protected as a TM and Copyright.

www.wipo.net www.uspto.gov www.epo.org www.ep.espacenet.com/ www.patentoffice.nic.in/

WIPO: Secrets of Intellectual Property: A guide to small and medium sized exporters, Geneva, 2004 WIPO: Looking Good: An Introduction to Industrial Designs for small and medium sized enterprises, Geneva 2003 WIPO: Inventing the Future: An Introduction to Patents for small and medium sized enterprises, Geneva 2005 WIPO: Marketing Crafts and Visual Arts: The Role of Intellectual Property - A practical guide Making a mark-An Introduction to Trademarks for Small and Medium sized Enterprise-Intellectual Property for business series number 1, WIPO(2003) A stitch in time-Smart use of Intellectual Property by textile companies, WIPO.

Questionnaire Copyright
1. Define copyright and its duration of protection. 2. What are related rights and what is their duration of protection? 3. How is copyright protected? 4. Under which international arrangements is copyright protected internationally? 5. List activities that are covered by economic rights. 6. Define moral rights and how they are relevant. 7. What kind of work is not protected by copyright? 8. What is a CMO and what are its advantages? 9. List three activities that can be called infringement of copyright. 10.What are the implications of section 15(2) of the Copyright Act?