Friday, 1 August 2014

Copyright Act 1957

What is Copyright Protects

Copyright law protects expressions of ideas rather than the ideas themselves. Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. 
Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works. The Courts in India have declared that copyright subsists in various literary works such as dissertation, question papers, encyclopedias, dictionaries. 
 As per Section 17 of the Act, the author or creator of the work is the first owner of copyright. An exception to this rule is that, the employer becomes the owner of copyright in circumstances where the employee creates a work in the course of and scope of employment.

 Copyright registration is important to a copyright holder who wishes to take a civil or criminal action against the infringe. Registration formalities are simple and the paperwork is least. 

RIGHTS OF THE AUTHOR WHO CAN CLAIM OWNERSHIP?
The Copyright Act, 1957 protects not only the economic or commercial interests of the author, but also his social interests in the form of moral rights or certain special rights.Under section 57 of the Act, the author of a work has the right to claim the authorship of the work. He also has a right to restrain the distortion or mutilation of his work or to claim damages for the distortion even after assigning the copyright.

WHAT YOU MEAN By an  AUTHOR UNDER THE Section 2(d) of the Copyright Act, 1957

i. the author of the work in relation to a literary or dramatic work;
ii. the composer in relation to a musical work;
iii. the artist in relation to an artistic work other than a photograph;
iv. the person taking the photograph, in relation to a photograph;
v. the producer in relation to a cinematograph film or sound recording; and
vi. the person who causes the work to be created in relation to any literary, dramatic, musical and artistic work which is computer generated.

Who are not the AUTHOR!

The Copyright Act provides for such classes of persons, who though not the authors of the work, but someone else for whom work is done in course of employment .

The Copyright Act, 1957, is applicable to all the branches of media, in some areas it is specific to a particular genre. Copyright is usually thought of as a bundle of rights that are available to the owner, and these are:

I. The Economic rights.

The Economic rights confer upon the author of the work to derive profits by exploitation of his work. For the purpose of convenience we can classify economic rights as: The Copyright Act grants five rights to a copyright owner, which are described in more detail below. 

1. Right to Reproduce work;
2. Right to Adaptation and Translation of work;
3. Right to Distribute Copies of work or Commercial Rental;
4. Right of Public Performance; and
5. Right to Broadcast work

1.RIGHT TO REPRODUCE WORK :

The most fundamental and valuable right of the author is the right to reproduce his work. This right is recognized by the Berne Convention 1886, by the Universal Copyright Convention, 1952 and also by the Indian law on copyright contained in the Copyright Act, 1957.

 Section 14 of the Copyright Act confers the right to the author of the work to reproduce his work or to authorize others to do so the reproduction of the work can be done in any material form, including the storing of it in any medium by electronic means 

In case of artistic works, the right extends to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work  substituted by the Copyright (Amendment) Act, 2012) .

Case StudyIn Phoolan Devi v. Shekar Kapoor, case  the plaintiff claimed that the basis of the film, is based on  a novel dictated by the illiterate plaintiff herself ‘ it had been considerably mutilated by the film producer. The plaintiff sought a restraint order against the defendant, from exhibiting publicly or privately, selling, entering into film festivals, promoting, advertising, producing in any format or medium, wholly or partially, the film “Bandit Queen” in India or else where. Yje court. held, that “the defendant had no right to exhibit the film as produced violating the privacy of plaintiff’s body and person. No amount of money can compensate the indignities, torture, and feeling of guilt and shame which has been ascribed to the plaintiff in the film. Therefore, the defendants were refrained from exhibiting the film in its censored version till the final decision of the suit.”

What is the meaning of right to reproduce Under Section 14 (d) of the Copyright Act of 1957with respect to the cinematograph film?

The plaintiff who was the owner of television serial ‘Kyon Ki Saas Bhi Kabhi Bahu Thi’ . He complained that   telecast of commercial by the defendants (in February 2000) contended that the overall impression of  the original work of the plaintiffs.   The question which came for the consideration for the court was whether the commercial made by the defendants is a copy of the work of the plaintiff. The while explaining the meaning of the term ‘reproduction’ and the ‘copy of the work’, used in Section 14, where one confers the exclusive right to reproduce the work in any mater form which means making of the physical copy of  the film itself. So the court gave a green signal to the telecast of the commercial that could not be treated as the copy of the work and the production of same cinematograph film by another would not amount the infringement of the copyright of the first film as making copy of the work without consent of the owner would constitute an infringement of the work. In case of cinematograph film, the reproduction right extends to the making of copies of the film including photographs of any images forming part of the film and storing it in any medium by electronic or other means substituted by the Copyright (Amendment) Act, 2012).


 2.RIGHT TO ADAPTATION AND TRANSLATION OF WORK
Adaptation is usually understood to involve adapting an already existing work, in which the copyright subsists, from one form to another, for example, from novel to a drama or film, or from two dimensional to three dimensional form, etc.  However, adaptations also permit alterations to the work in same form, as publication of the new edition of the book, where modifications in the law book so as to incorporate new developments in the field.

The owner of the copyright can prevent others from reducing the contents of the work and by simply omitting certain material  others would not entitle the author of that work a copyright.  In case of translated works, reproduction of that work in any other language, without the consent of the owner, would amount to infringement of the original work. 

3.RIGHT TO DISTRIBUTE COPIES OF WORK AND COMMERCIAL RENTAL

The right to distribute the copies of the work vests exclusively by the first owner of the work.

  In the case of a computer programme, the Copyright (Amendment) Act, 1999), which confers on the holder of the right, a right to sell or give on commercial rental or offer for sale or commercial rental any copy of the computer programme. 
TRIPA Agreement, which refer to the principles of National Treatment  The Doctrine says that once someone buys a legitimate copy of a work, they can do whatever they want with it,including sell it to others, or lend it out, or whatever. 

4.Right of Public Performance


The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to the following types of works:
  • literary works,
  • musical works,
  • dramatic works,
  • choreographic works,
  • pantomimes,
  • motion pictures, and
  • audio visual works.
Under the public performance right, a copyright holder is allowed to control when the work is performed "publicly." A performance is considered "public" when the work is performed in a "place open to the public " A performance is also considered to be public if it is transmitted to multiple locations, such as through television and radio. Thus, it would be a violation of the public performance right in a motion picture to rent a video and to show it in a public park or theater without obtaining a license from the copyright holder. In contrast, the performance of the video on a home TV where friends and family are gathered would not be considered a "public" performance and would not be prohibited under the Copyright Act.

The public performance right is generally held to cover computer software, since software is considered a literary work under the Copyright Act. In addition, many software programs fall under the definition of an audio visual work; it is clear that a publicly available video game is controlled by this right.

5 . RIGHT TO BROADCAST WORK

the Indian copyright law also defines the term ‘broadcast’ to mean communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images ; or by wire and includes a re-broadcast to the public(Inserted by the Copyright (Amendment) Act, 1983. An explanation is provided to show that the communication through the satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential
rooms of any hotel or hostel shall be deemed to be communication to public. 

 Even simultaneous broadcasting by one broadcasting organization of the broadcast of another broadcasting organization has also been covered by the Convention under the term ‘rebroadcasting.
The court held that a video film to be shown over a Cable Television Network by a person having no video copyright over such film  thus amounted to infringement of the copyright.

 II.Moral Rights: 
Moral Rights of an Author under the Act: The author of a work has the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work, if such distortion, mutilation, modification or other act is prejudicial to his honour or reputation. Moral rights are available to the authors even after the economic rights are assigned. (section 57)

Section 57 of the Act defines the two basic “moral rights” of an author. These are: 

(i) Right of paternity: 

The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work  and 

(ii) Right of integrity: 

Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation.

III. SPECIAL RIGHTS OF THE AUTHOR
The author of the work has the right to preserve and protect his moral rights. The protection accorded by the moral rights, however, is different from the economic rights. Whereas the economic rights protect the economic interests of the author by preventing others from exploiting the work without the consent of the author, the moral rights focus on the protection of the author’s personality.  As amended by the Copyright (Amendment) Act, 2012, Section 57 gives the author of the work a right to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work, if such distortion, mutilation, modification or other act would be prejudicial to his reputation. 
The provisions conferring ownership to others, those who may be:
  1. The proprietor of the newspaper, magazine or similar periodical 
  2. The person who has paid value consideration for the work 
  3. The employer under a contract of service or apprenticeship 
  4. The person who delivers or on whose behalf the speech is delivered or an address is made by the Copyright (Amendment) Act, 1983) ;
  5. Government in case of Government work
  6. Public undertakings Inserted by the Copyright (Amendment Act, 1983
  7. International Organizations [s. 17 (e)].


 

The author of a computer programme

 The author of a computer programme is also protected under this section. The moral rights will subsist with the programmer even after assigning the copyright in a software programme. If the assignee distorts the software as a result of which the programmer’s reputation is harmed, the programmer can sue for restraining
such distortion and for damages. These cyberspace players can be grouped under the following headings:
(1) Internet Service Providers (ISPs),
(2) Bulletin Board Services Operators (BBSO),
(3) Commercial Web Page owner/operators, and
(4) Private users.

Rights of owner of photograph under the Copyright Act, 1957

The provisions of the Copyright Act, 1957 a lucid mechanism appears which safeguards the interest of the photographers.The photographs have also been included under the subject-matter of artistic work and thereby subject-matter of copyright .

The photographer has a right to publish his photographs in public.Also as per Section 17(b) of the Copyright Act, 1957, the photographer is the first owner of the photograph. As per Section 25 of the Copyright Act, 1957 the term of the copyright for a photograph is 60 years after the date of publication of a photograph. 
Though the photograph can be used for the purposes of reporting current events by any other person provided there is no mala fide intention of deriving undue profit and the principles of fair dealings are taken care of. 
Similarly, the photograph can be used in teaching purposes, research purposes, judicial proceedings, for legislative purposes and would not amount to the infringement of the copyright of photographe certain elements in artistic work especially photograph.

Criminal Remedies
¨  Copyright Act 1957, s.64 empowers the Police (any officer not below the rank of sub-inspector) to seize infringing copies without warrant
¨  Police Raids  (Power of search, seizure & arrest without a warrant)
¨  Fines (min. 50,000-200,000 INR)
Imprisonment (6 months to 3 years)

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