Copyright Law India

 The  copyright  means  the sole & exclusive  right   to publish  the   work   or  any substantial  part   thereof and or  reproduction of the  publication    or reproduction of the translation of the work as per  Section  14 of the copy right  Act 1957 [D.S.G Sidhanti   versus Venkateshwara   publishing house, (1968)  1 An WR 323, 328].

There can be no copy right in works which have not yet come into existence. It can   subsist only in respect of works already   published or   composed.  It may   attach upon each successive publication but work we have no present existence can not be the subject of copy right.

Copyright is incorporeal property-copy right is the right to prevent copyright, or issuing the copies of the work to the public or the right to prevent the making for sale of selling infringing   copies   of the work.   It  is incorporeal property distinguishable from physical  ownership  of the work in which copyright subsists. It is the    right to make the   copies of the  work, and to do  various other acts.

Author -  Section  2  (d)  of the copyright Act, 1957  defines  the  meaning of the authors as the  person who  causes  the work to be created.  A person who merely suggests the idea of the work to author is not the author, nor even a joint author of the work.  A short hand  writer  who  takes down   the notes is not the author. Authorship is the organization of a meritorious production, embodying the author or the  thought of the author as well as the thought of the other, in an organized  and communicable  form and  bearing the  impress  of the distinctive  individuality  of  the  mind  which  produced it. 

Section 13 (1) the copyright Act, 1957 copyright shall subsist throughout India   in  the following classes  of  original literary, dramatic, musical and artistic work, cinematograph films and sound  recording subject to provisions of this section and the other provision of this  Act.

Copyright     shall   not   subsist  in  any   work   specified   in subsection (1), other than a work  to which the provision  of section 40 or section   41  apply unless in  the  case  of  the  published work, the work  is   first      published in India,  or  where  the  work  is  first published outside India, the author is at the date of such publication, or in a case  where the   author was   dead  at   that date, was at the time of his death, a citizen of India and in case  of  an unpublished work other than work of    architecture, the author    is   at the date of  the  making  of the  work a   citizen of   India  or domiciled in India ; and in the case   of  work    of architecture, the  work is located  in India .  In   the case of a work  of  joint  authorship the   condition     conferring Copyright specified   in  this     sub-section  shall be  satisfied  by   all the author  of  the work.   

Original work and originality.- section 13 (1)   provides that copyright subsists  in original literary,dramatic musical and  artistic works .What is a concept of ‘originality’?

The word “original” does not mean that the work must be the expression of original or inventive thought. The originality which is required relates to the expression of the thought but the Act does not require that the expression must be in an original or novel form, but that the work not be copied from another work that should originate from the  author.  Any new and original plan, arrangement or compilation of materials entitle author to copy right therein. Whether the material themselves old or new. A good literary work requires considerable thought, skill and labour. However, the existence of “originality” is a question of fact and degree.

There is no common "international copyright protection". However, most countries do offer protection to foreign works under certain conditions under various international copyright treaties and conventions. India is a member of both the Berne convention and Universal copyright convention.

Acquisition of copyright is automatic and it does not require any registration. However, certificate of registration of copyright serve as prima facie evidence in a court of law with reference to disputes relating to ownership of copyright.  Application for registration is to be made on Form IV (Including Statement of Particulars and Statement of Further Particulars) along with the prescribed fees and the same can be signed by the advocate as well.

Both published and unpublished works can be registered. When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright.

The term of the copyright is for life that is 60 years. In the case of original literary, dramatic, musical and artistic works the 60 year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, the 60 year period is counted from the date of publication.

ASSIGNMENT OF COPYRIGHT

Section   18   of  the copyright  Act, 1957  provide the  provisions  for  the assignment  of copyright. The owner of the copyright in an existing work or the prospective owner of the copyright  in future work may assign to any person the copyright either wholly or partially and  either generally or subject to limitations and either for the whole term of the copyright or any part thereof. In the case of the   assignment of copyright in any future work, the assignment shall take effect only when  the  works comes into existence. The expression ‘assignee’ as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.”  

It is essential for assignment of copyright that the work must be identifiable and specification of the rights assigned and duration and extent of such assignment be specified. The period of assignment is to be deemed to be five years from   the date of assignment if period of assignment not stated. If territorial extent is not specified it shall be presumed to extend within India. The assignment must specify amount of royalty payable, if any, to author or his legal heir during currency of assignment.

INFRINGEMENT OF COPYRIGHT    

Section  51   of  the  copyright  Act , 1957   deals with the infringement of copyright  and copyright in a work shall be deemed to be infringed when any person, without a licence granted  by the  owner  of  the copyright   or the Registrar of copyright under this Act or in  contravention  of  the   conditions of a licence  so  granted  or  of any  condition imposed by a  competent authority under this Act-

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

(ii)       permits for profit any  place to  be used  for  the  communication  of  the work in 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, or  

(b)       when any person-

(i)    makes for sale or hire , or sells or lets for hire or by way of trade displays or offers for sale or hire,  or

    (ii) distributes    either  for  the  purpose  of  trade  or  to  such  an  extent  as  to  effect Prejudicially the owner of the copyright ,or

    (iii) by way of trade exhibits in public , or

    (vi) imports  into India ,

Any infringing copies of the work;

Provided that nothing in sub-clause (vi) shell apply to the import of two copies of  any work, other than a cinematograph film or record, for the private and  domestic use  of the importer.

Explanation.-  for the  purposes  of  this section , the reproduction of a literary, dramatic musical or artistic  work  in  the form of a  cinematograph film shell be deemed  to be an ‘infringing copy’.”   

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