COPYRIGHT IN INDIA
1. What is a Copyright?
Copyright is a right recognized by law for the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It includes inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. In India this right is recognized and protected under the Copyright Act, 1957.
2. What material does copyright protect?
The protection provided by copyright is to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, in order to create an atmosphere conducive for creativity, which encourages them to create more original works and motivates others to create such works too. Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity.
3. Who can claim copyright? Can copyright be given to companies or only persons?
Copyright can be claimed by an author that includes a composer, artists, photographers, producers or any person who causes the work to be created. The Copyright Act, 1957 does not define the term “person” but recognizes the term “author”. Hence any person who is an author of the literary or dramatic work, musical work, artistic work, photograph, cinematographic film, sound recording, etc can claim copyright.
A company can never be considered as an author of a work. However, it can become the owner, if the author creates a work while he was having employer-employee relation with the company.
4. How does it affect a business? What kind of businesses should be aware of it?
Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive for creativity. In essence, the business or the profession associated with the world of creativity is guarded by the law of copyright.
5. What is the procedure to get copyright?
Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. In other words, it is not compulsory to register Copyright. According to Berne Convention “inherent protection” is available; which means that the holder does not have to comply with any formalities for the purpose of claiming copyright protection. However in order to register a copyright an application in prescribed format should be made before the Registrar of Copyright. Registration of a copyright is a prima facie proof of ownership and it might be easier to persuade judicial and administrative authorities to grant interim relief even without notice to the infringers. The entries made in the Register of Copyrights serve as prima-facie evidence in the court of law.
6. How long does it take to get a copyright for one’s work? How much does the procedure cost?
An application for registration of copyright should be made in the prescribed format before the Registrar of Copyright. The person applying for registration shall give notice of his application to every person who claims or has any interest in the subject matter. If no objection to such registration is received by the Registrar within thirty days of the receipt of application and if Registrar is otherwise satisfied about the correctness of particulars given in the application, then he will enter such particulars of work in the Register of Copyright. The procedural costs are affordable.
7. What provision is available for the breach of copyright?
The following are some of the commonly known acts involving violation 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
The Law provides civil and criminal remedies in case of infringement of copyright. Copyright infringement is a cognizable offence where a Police Officer not below the Rank of a Sub-Inspector can arrest the offender without the warrant and conduct the search even without prior authorization of a Court. Copyright infringement if proved in a Court of Law carries a minimum mandatory sentence of imprisonment of six months and minimum fine of Rs. 50,000 which can extend upto Rs. 2 lakh. The Act further provides that there will be an enhanced penalty in case of second and subsequent convictions.
In Civil Cases, the District Court can be persuaded not only to give an interim injunction without notice to the other party but also usually gives a direction under Order 39 Rule 7 of C.P.C. where a Commissioner appointed by the Court will visit the premises of the infringers and will be empowered to conduct a search of the inventors premises and cease infringing material from the infringers premises. The seized material can be used at a later point of time to establish infringement.
8. What is the difference between copyright, patent and trademark
A Trade Mark is a visual symbol in the form of a word , a device ,or a label applied to articles of commerce with a view to indicate to the purchasing public that is a good manufactured or other wise dealt in by a particular person as distinguished from similar goods dealt or manufacture by other persons. Trademark registration protects the goodwill of a business and also helps to identify and distinguish the source of the goods or services of one party from those of others. Trademark registration is an evidence of ownership of the trademark and also a confirmation of the constructive notice nationwide issued to the trademark owner’s claim on it. Trademark registration in India can also be used as a basis for obtaining registration in foreign countries.
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. It includes inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.
A patent is granted for exclusivity of use of the invention within a particular territory. Thus, the owner of a patent has the exclusive right to stop others from making, selling, offering for sale, importing or using the patented invention in any other way. This however applies only for the term of the patent within the country where the patent has been obtained. Patents are technically national, given that the designated authority in each country grants patents in that country. But with many multilateral agreements, like TRIPs, Patent Cooperation Treaty (PCT) and Substantive Patent Law Treaty patenting systems are increasingly being globalized.
In simple words, these three categories of Intellectual property rights serve three different purposes. A Trademark protects the brand or the goodwill of a trade. A copyright protects creative pursuits in the forms of art; literature etc. Patent is entirely a different category of right and is associated with inventions thereby giving protection to the corporations and intellectuals engaged in the world of science, technology, research and development.