The Copy Rights Act

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COPYRIGHTS ACT

1. Explain nature and purpose of copyright. In which type of works it subsists. Who is called the author of copyright ****

2. What are the various rights conferred by copyright? **

3. Discuss the procedure for registration of copyright and its effect? ****

4. What constitute infringement of copyright? Discuss the remedies for its infringement. ******

5. Notes: 1. Copyright societies ***

2. Term of copyright *

3. Voluntary licenses of copyright

4. Voluntary and compulsory relinquishment of copyright

5. Author and first owner of copyright

6. Compulsory licensing of copyright

7. Priority date (re patent)

8. Claims (re patent)

6. Explain the law relating to assignment and transmission, relinquishment of various types of copyrights ? **

7. Discuss the offence and penalties under the Copyright Act.

8. Discuss the provisions regarding broad - cast reproducing right & performer’s rights.

9. What are the rights of an owner of copyright in sound recording and cinematograph films?

5.Explain the term license under the Copyright Act. 5.1.Definition-Section 30 of the Copyright Act defines license as an authorization to do certain acts which without such authorization would be an infringement.

The owner of a copyright may grant license to do any of the acts in respect of which he has an exclusive right to do.

Licensing usually involves only some of the rights and not the whole. An author of a novel may license the right to reproduce the work in hardbook to one person and paper book to another, the serialization rights and dramatization rights in any language to yet another.

License is different from assignment. In the case of a license the licensee gets the right to exercise particular rights subject to the conditions of the license but does not become the owner of that right whereas an assignee becomes the owner of the interest assigned.

5.2.Form and contents of license- There is no prescribed form for a license deed. But it should be in writing signed by the owner of the copyright or his duly authorized agent.

A license can be granted not only in respect of an existing work, but also in respect of a future work. But in the case of a future work the license will take effect only when the work comes into existence. Where the licensee of a future work dies before the work comes into existence then his legal representatives will be entitled to the benefit of the license if there is no provision to the contrary in the license.

5.2.1.A license should contain the following particulars- 1. Identification of the work

2. Duration of license

3. The rights of licensee

4. Territorial extent of license

5. The quantum of royalty payable

6. The terms regarding revision, extension and termination

5.3Period of license-if the licensee does not exercise his right licensed to him within one year from the date of license in respect of such rights it will be deemed to have lapsed after the expiry of one year. If the period of license is not stated it will be deemed to be 5 years from the date of granting license.

6.Write a note on Rights of Author

The author of a work may relinquish all or any of the rights in the copyright in the work by giving notice in the prescribed form to the Register of Copyrights and there upon, such rights cease to exist from the date of the notice.

On receipt of the above notice, the Registrar of copyrights shall cause it be published in the official Gazette and in such other necessary manner.

The relinquishment of all or any of the rights in the copyright in a work does not affect any rights subsisting in favour of any person on the date of the above notice.

7.Explain compulsory licensing under Copyright Act. 7.1.Non-voluntary or Compulsory Licence Many countries have provided in their copyright legislation for compulsory licenses particularly in those fields of copyright where modern technology has created new uses for works giving new rights which can only be exercised effectively by bulk licencing through a collecting society or under a compulsory licence system. These provisions have been found necessary because new technology which has posed problems for the enforcement of copyright which could only be solved in a practical way by compulsory licence schemes.

7.2.International Conventions and Non-voluntary Licensing The Berne Convention, Paris Acts (1971) and the UCC have made special provisions for non-voluntary licences for the benefit of developing countries. Under these provisions such licences are

(a) confined to the exercise of two rights - the translation right and the reproduction right;

(b) confined to countries recognized as developing countries;

(c) only permitted if all the prior conditions stipulated in the Annex and Protocol are fulfilled;

(d) temporary in the sense that they are permissible under the conventions only as long as the country concerned ranks as a developing country.

The Berne Convention contains compulsory licence provisions relating to the broadcasting right and recording right. Subject to the conditions that:

(1) the moral rights of authors are safeguarded.

(2) equitable remuneration is provided for and the amount of which to be fixed either by agreement or by ‘competent authority’ which is usually a Government agency or a special tribunal; and

(3) the compulsory licence must be applicable only in the country which has provided for it.

7.3.Compulsory licence of an Indian Work [S. 31] The Copyright Board is empowered to grant compulsory licences under certain circumstances on suitable terms and condition in respect of an ‘Indian work.’ The circumstances necessary for grant of such compulsory licences are the following:

(a) the work must have been published or performed in public,

(b) the author must have refused to republish or allow republication of the work or must have refused to allow the performance of the work in public.

(c) that by reason of such refusal the work is withheld from public, or

(d) the author must have refused to allow communication to the public of such work by broadcast, or in the case of a sound recording the work recorded in such record on reasonable terms.

7.4.Procedure On a complaint being made to the Copyright Board, the Board, after giving the owner of the copyright an opportunity of being heard and after holding necessary enquiries, may direct the Registrar of Copyright to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright reasonable compensation and subject to other terms and conditions, if necessary. The Registrar will then grant the licence on payment of such fee as may be prescribed.

8.When can a license be terminated? 8.1.Termination of Licence Granted under sections 32(1 A) and 32A of non-Indian work [S. 32B] Where the Copyright Board has granted a licence to any person to produce and publish a translation of a non-Indian work any language under S. 32(1A); if at any time after granting the licence the owner of the work or a person authorized by him has published a translation of the work in the same language which is substantially the same in content at a price reasonably related to the price charged in India for the translation of works of the same standard on the same or similar subject the licence granted will be terminated. The termination will not take effect until after the expiry of three months from the date of service of a notice in the prescribed manner on the person holding the licence by the owner of the right of translation intimating the publication. The licence-holder will be permitted to sell or distribute copies of the translation produced before the termination of the licence takes effect until they are exhausted.

A licence granted by the Copyright Board under S. 32A to produce and publish the reproduction or translation of any work will be terminated if at any time after the granting of licence the owner of the right of reproduction sells or distributes copies of such work or its translation in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for works of the same standard on similar subject. The termination will not take effect until after the expiry of three months from the date of service of a notice on the holder of the licence by the owner of the right of reproduction or translation intimating the sale and distribution of copies of the edition of the work. The licence holder can, however, continue to sell the copies already reproduced before the termination takes effect until such copies are exhausted.

9.How is infringement of copyright determined? 9.1.Infringement of Literary, Dramatic or Musical Works [S. 51 r/w S. 14(a)] If a person without the consent or licence of the owner of the copyright does or authorize the doing of any of the following acts, he will be guilty of infringement of the copyright in the work.

(1) to reproduce the work in any material form including the storing of it in any medium by electronic means;

(2) to issue copies of the work to the public not being copies already in circulation;

(3) to perform the work in public or communicating it to the public;

(4) to make any cinematograph film or sound recording in respect of the work;

(5) to make any translation of the work;

(6) to make any adaptation of the work;

(7) to do in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in cls. (1) to (6);

(8) to permit for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement or 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 the copyright;

(9) to make infringing copies of the work for sale or for hire or sells or lets for hire or display or offers for sale or hire infringing copies or;

(10) to distribute infringing copies either for the purpose of trade or to such an extent as to effect prejudicially the owner of the copyright;

(11) to exhibit infringing copies by way of trade to the public;

(12) to import into India infringing copies. However the import of one copy of the work for the private and domestic use of the importer is permitted.

(13) In respect of a computer programme which is a form of literary work;

i. to do any of the acts specified above and

ii. 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.

Infringing copy means reproduction of the work made or imported in contravention of the provisions of the Act [S. 2 (m)]. The reproduction of the work in the form of a cinematograph film is deemed to be an infringing copy.

9.2.Infringement of Artistic Works [S. 51 r/w S. 14(c)] In respect of an artistic work infringement of the copyright consists in doing or authorizing the doing of any of the following acts without the consent or licence of the copyright owner:

(1) reproducing the work in any material form, including the depiction in three dimension of a two dimensional work or in two dimensions of a three dimensional work,

(2) communicating the work to the public,

(3) issuing copies of the work to the public not being copies already in circulation,

(4) including the work in a cinematographic film,

(5) making any adaptation of the work,

(6) in relation to an adaptation of the work any of the acts referred to above,

(7) making for sale or hire, or selling or letting for hire, offering for sale etc., infringing copies of the work

(8) distributing, exhibiting in public for trade, infringing copies of the work,

(9) importing infringing copies of the work except one copy for private use.

In order to constitute infringement, a substantial part of the plaintiffs' work must have been taken and the defendant must have made use of the plaintiffs' work. What is substantial may depend upon how important that part, is to the recognition and appreciation of the artistic work. It is relevant to consider whether the feeling and artistic character have been taken.

Infringement of painting or a picture can be detected by a close comparison of the two works to see whether minute details in original work have been reproduced in the alleged infringing copy.

If a painter uses a copyright photograph only as a source of inspiration or for reference purposes only there may be infringement. If, however, the ultimate painting is a copy of photograph, there would be infringement, especially if the photograph is an original one.

If a person gets his photograph taken by a photographer on payment the copyright in the photograph belongs to the person. Accordingly the publication of the photograph or its exhibition at any place including the photographic shop window constitutes infringement of that copyright.

10.What are the remedies available against infringement of copyright? 10.1.Authors' Special Rights [S. 57] An author of a copyright work has the following special rights

(a) to claim 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.

However, this right is not available in respect of any adaptation of a computer programme to which certain acts do not constitute infringement of the copyright in the work [S. 52(1)(aa)]. This section provides that making of copies of adaptation of acomputer programme for certain purposes or to make back up copies for protection against loss, destruction or damage will not amount to infringement of copyright in the work.

The author's special rights can be exercised even after the assignment of the copyright. They can be enforced by an action for breach of contract or confidence, a suit for defamation or passing off as the case may be.

In respect of works of architecture where the construction of a building or other structure which would infringe the copyright in some other work has been commenced the owner of the work will not be entitled to obtain an injunction to restrain the construction of such building or structure or to order demolition. He cannot also claim damages for conversion.

In appropriate cases a declaratory order may be obtained as to whether what the defendant is doing or proposes to do is an infringement of the copyright in a work.

10.2.Civil Remedies 10.2.1.Procedure The procedure before the court in a suit for infringement copyright is governed by the Code of Civil Procedure.

10.2.2.The plaintiff has to establish the following: (1) he is the owner of the copyright,

(2) copyright subsisted in the work infringed at the time the defendant committed the infringement,

(3) particulars of the alleged infringement,

(4) what the defendant has done constitutes infringement of the copyright,

(5) the nature of damage if any suffered by him or likely to suffer.

10.2.3.The defendant may set-up one or more of the following defences: (1) no copyright subsists in the work alleged to be infringed,

(2) the plaintiff is not entitled to sue (not the owner of copyright),

(3) the alleged copyright work is not original,

(4) the alleged copyright is not entitled to protection being immoral, seditious or otherwise against public policy,

(5) the defendants' work is independent and is not copied from the plaintiffs' work,

(6) the defendants' action does not constitute infringement of the plaintiffs' work and is permitted under one or more of the exceptions to infringement,

(7) the suit is barred by limitation,

(8) the plaintiff is guilty of estoppel, laches and acquiescence or consent,

(9) the infringement is innocent and the plaintiff is only entitled to the profits made by the defendants on the sale of the infringing copies.

Innocent infringement is not a defence against infringement as such. But if the defendant proves that at the date of infringement he was not aware and had no reasonable ground for believing that copyright sub-sisted in the work, the plaintiff will be entitled to only an injunction and a decree for the whole or part of the infringing copies. Plaintiff will not be entitled to any remedy in respect of conversion of infringing copies.

10.3.Anton Piller Order In appropriate cases the court may on an application by the plaintiff pass an ex parte order requiring the defendant to permit the plaintiff accompanied by solicitor or attorney to enter his premises and take inspection of relevant documents and articles and take copies thereof or remove them for safe custody. The necessity for such an order arises where there is a grave danger of relevant documents and infringing articles being removed or destroyed so that the ends of justice will be defeated. Such an order is called in the United Kingdom as an Anton Piller Order (named after a plaintiff in a case where such an order was first passed). It is similar to an ex parte interlocutory order to inspect the premises of the defendant and take inventory of the offending articles etc., passed in an ordinary suit in India.

In passing an order of this nature the basic safeguards of equity must be strictly enforced.

The plaintiff in his application must make the fullest possible disclosure of all material facts within his knowledge, and if he fails to discharge this obligation he will not be entitled to any advantage from the proceedings and he will be deprived of any advantage already obtained by the order.

10.4.Interlocutory Injunction In order to secure immediate protection from a threatened infringement or from the continuance of an infringement, a plaintiff may apply for an interlocutory injunction pending the trial of the action or further orders. An application for such relief is made along with the plaint supported by affidavit evidence. Very often an ex parte injunction is also sought, i.e. a temporary injunction granted for a short period, for a week or so,before the defendant has notice of the suit or is heard.

For obtaining an interlocutory injunction the plaintiff has to establish a prima facie case and that the balance of convenience is in his favour and that if the interim order is not granted it will cause irreparable injury to the plaintiff.

The defendant if injured as a result of the injunction, will be entitled to compensation by virtue of an undertaking as to damages by the plaintiff which is an invariable condition of the granting of such an injunction. An interlocutory injunction will not be granted where the defendant might suffer irreparable injury from an injunction pending trial and the plaintiff can be protected by the defendant being ordered to keep an account, nor will it normally be granted where a bona fide defence of fair dealing has been pleaded, or if the plaintiff has been guilty of undue drill coming to the court or his conduct amounted to acquiescence in the infringement or if there is any substantial doubt as to the plaintiff's right to succeed. It has been held that in considering whether to grant an interlocutory injunction the court must look at the whole case. It must have regard not only to the strength of the claim, but also to the strength of the defence and then decide what is best to be done. The remedy by way of interlocutory injunction must not be made the subject

of strict rules.

10.5.Damages or Account of Profits There are two types of damages available to a successful plaintiff, one under S. 55 for infringement and the other under S. 58 for conversion. The copyright owner is entitled to treat all infringing copies of his work as if they were his own property. He will have to take civil proceedings for the recovery of possession thereof or in respect of conversion thereof. The plaintiff may also claim special damages for the flagrancy of infringement.

As an alternative to damages a successful plaintiff may claim account of profits.

10.6.Criminal Proceedings [Ss. 63-70] In addition to civil remedies the Copyright Act enables the owner of the copyright to take criminal proceedings against an infringer. Knowledge or mens rea is an essential ingredient of the offence. These two remedies are distinct and independent and can be availed of simultaneously. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum of three years and with a fine of the order of Rs. 50,000 to Rs. 2.00 lakhs. A Police Officer of the rank of Sub-inspector and above is given the power to seize without warrant, all infringing copies of the work and accessories for making infringing copies wherever found, to be produced before a Magistrate.

All infringing copies of the work in which copyright subsists and all plates used for the production of such copies are deemed to be the property of the owner of the copyright in the work. The court trying the offence may order that all copies of the work appearing to be infringing copies or plates for making infringing copies in the possession of the alleged offender be delivered up to the owner of the copyright without any further proceedings. This is so whether the accused is convicted or not. However, for compensation in respect of conversion of infringing copies the owner of the copyright will have to take civil proceedings.

No court inferior to that of a presidency magistrate or a magistrate of the first class can try an offence under the Act. Any person can make a criminal complaint and a magistrate will be competent to take cognizance of any offence upon receiving a complaint of facts which constitutes such offence irrespective of the qualifications or eligibility of the complainant to file a complaint. Ordinarily, however, it is the owner of the copyright or any person who has an interest in the copyright, e.g the licensee, who files a complaint. A joint author can also file a complaint. The conduct of the criminal proceeding is governed by the Criminal Procedure Code.

10.7.Threat of Legal Proceedings and Slander of Title [S. 60] 10.7.1.Threat action When the owner of the copyright in a work comes to know that his copyright is being infringed by a person he normally sends a notice to that person requesting him to forthwith discontinue the act which constitutes infringement of the copyright. If the person complies with the request the matter ends there subject to the question of compensation for damages and conversion, if any, being settled by mutual agreement.

This procedure is adopted only where the nature of the infringement involved is such that it is not likely to be repeated, e.g. the performance in public of a dramatic or musical work where the damages involved will be negligible. But where the infringement involves the reproduction of a copyright work in large numbers and the damages involved might be heavy the owner of the copyright sends notices to the persons involved in the infringing acts, threatening them with legal proceedings. The threat may be direct or indirect. It may be addressed to particular persons or generally and it may be made through circulars, advertisements or otherwise.

10.7.2.Slander of Title If a publisher publishes the work of A under the name of B with the approval of B and without the consent of A, A may, in the absence of any express or implied contract, sue the publisher and B for malicious falsehood or slander of title.

Copyright Act provides that the author of a work has the right to claim the authorship of the work. The Berne Copyright Convention also recognizes this right. If this right is infringed the author can take proceedings against the persons concerned for the relief of injunction and damages. The right to claim authorship exists even after the assignment of the copyright in the work and can be exercised by the legal representatives of the author.

The plaintiff has to prove that the statement or representations complained of were false or untrue; that they were made maliciously, that is, without just cause or excuse, and that the plaintiff has suffered special damage thereby.

Malice in the law of slander of title and other forms of injurious falsehood means some

dishonest or otherwise improper motive. An intent to injure without just cause or excuse

is sufficient.

11.Write a note on copyright societies Section 33 to 36 deals with Performing Rights Societies which carry on the business of issuing or granting licenses for the performance in India of any work in which copyright is subsisted.

A owner of copyright shall in his individual capacity, continue to have the right to grant licenses in respect of his own works consistent with his obligation as a member of the registered copyright society.

Copyright Societies are formed to license the works of owners of copyright to those interested in the re-production, performance or communication to public of the works. They are authorized to do this service by the owners on payment of suitable fees. The Societies are also authorized to watch out for infringement of the copyright and take appropriate legal action against the infringers.

Section 33(3) says the Central Government will not register more than one copyright society to do business in respect of the same class of work. If a copyright society is managed in a manner detrimental to the interest of owners of the rights conferred the Central Government may cancel its registration