We advise on copyright protection and represent creators, actors, performers, authors, publishers, producers and broadcasters.
We regularly assist clients in securing copyright for their works and drafting agreements related to the transfer of such rights, while considering both Contract Law and the Copyright Law.
We take steps to enforce the interest and title of our clients in protected works by taking actions against any third party misuse, by sending cease and desist notices, conducting raids and seizures, infringement suits.
We maintain a system to keep a timely check on the upcoming deadlines and make every effort to stay in touch with our clients regularly.
What is Copyright?
Copyright is a right granted by the law to creators of literary, dramatic, musical and artistic works and the makers / producers of cinematograph films and sound recordings. It is also referred to as a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work.
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, promotes creativity and encourages individuals to create more.
What is the scope of protection in the Copyright Act, 1957?
The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Copyright only protects the expressions and not the ideas. There is no Copyright protection for ideas, procedures and methods of operation or mathematical concepts as such.
What acts constitute primary infringement of Copyright?
Primary infringement occurs where a person performs any of the following acts without the consent of the rights holder.
- copying;
- issuing copies of the work to the public;
- renting or lending the work to the public;
- performing, showing or playing a Copyright work in public;
- communicating the work to the public;
- making an adaptation of a Copyright work or doing any of the acts listed above in relation to an adaption.
What can be protected under Copyright?
The protection and rights under the Copyright laws is granted to original work. However, there is no Copyright protection for titles or names, short word combinations, slogans, phrases, plots or factual information, methods of operation, procedures or mathematical concepts.
What rights does Copyright grant to the rights holder?
A Copyright grants protection to the creator and his or her representatives for the works and prevents such works from being copied or reproduced without their consent.
The creator of a work can prohibit or authorise anyone to:
- reproduce the work in any form, such as print, sound, video, etc.;
- use the work for a public performance, such as a play or a musical work;
- make copies/recordings of the work, such as via compact discs, cassettes, etc.;
- broadcast it in various forms;
- translate the same to other languages.
Is it mandatory to register a work to claim Copyright?
No, it is not mandatory / necessary to register a work as a Copyright. The acquisition of Copyright is automatic and it does not require any formality. Copyright comes into existence as soon as a work is created.
However, certificate of registration of Copyright serve as, prima facie, evidence in a court of law with reference to dispute relating to ownership of Copyright.
Where can the application for registration of Copyright for a work be filed?
The Application for Copyright Protection can be filed at the Copyright Office, which is located in New Delhi.
What is the duration of Copyright in protected works?
The duration of protection for Copyright works varies according to the type of work and the date of creation of the work. It is divided as follows:
- Literary, dramatic, musical or artistic works: The Copyright expires after 60 years from the end of the calendar year in which the author dies. Where a work has a joint author/co-author, it expires 60 years from the end of the calendar year in which the last known author dies. Where the author's identity is unknown, Copyright expires 60 years from the end of the calendar year in which the work was first published.
- Cinematograph films: The Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the film is published.
- Sound recordings: The Copyright shall subsist until 60 years from the beginning of the calendar year following the year in which the sound recording is published.
For how long do moral rights subsist in Copyright works?
An author's moral right, which is a right against distortion, is available even after the expiry of the term of Copyright.
Who is the "first owner" of a Copyright work?
The "first owner" may be determined as follows:
- Literary, dramatic or artistic work (which includes a photograph, painting or a portrait) created during the course of employment or under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the author of such a publication shall, in the absence of a contract to the contrary, be the first owner of Copyright. However, such ownership shall vest with the proprietor of the publication only for the limited purpose of publishing the work or a reproduction of the work in a publication and, for all other purposes, the Copyright shall vest with the author of the work.
- In a photograph, painting or portrait, which has not been made for the purposes of publication in a periodical but has been made for any other purpose, then in the absence of a contract to the contrary, the Copyright in such work shall vest with the person at whose instance the work was created.
- In the case of a cinematograph film, in the absence of a contract to the contrary, the Copyright in the cinematograph film shall vest with the producer of the film (i.e. the person at whose instance the film was made for a valuable consideration).
- In the case of a work made during the course of employment or under a contract of service or apprenticeship, the employer shall, in the absence of a contract to the contrary, be the first owner of Copyright. In the case of a government work, the Copyright in the work shall vest with the Government.
Whether unpublished works are registered?
Yes, both published and unpublished works can be registered.
Whether Computer Software or Programme can be registered?
Yes, computer Software or programme can be registered as a 'literary work'. As per Section 2 (o) of the Copyright Act, 1957 "literary work" includes computer programmes, tables and compilations, including computer databases. "Source Code" and "Object Code" have also to be supplied along with the application for registration of Copyright for software products.
Can Copyright in a work be jointly owned? If so, what are the rights of a co-owner?
Yes, the Copyright Act, 1957 recognises joint authorship which means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.
The joint authors fully enjoy all of the rights granted by the Copyright Act, 1957. The term of Copyright of a work of joint authorship is calculated with respect to the author that dies last.
Can Copyright in a work be jointly owned? If so, what are the rights of a co-owner?
Yes, the Copyright Act, 1957 recognises joint authorship which means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.
The joint authors fully enjoy all of the rights granted by the Copyright Act, 1957. The term of Copyright of a work of joint authorship is calculated with respect to the author that dies last.
What acts fall under "fair use" of any Copyrighted works without the express permission of the owner of Copyright (i.e. what exceptions apply)?
Under the Copyright Act, 1957, there are certain exceptions which constitute fair dealing/fair use, and are not considered an infringement. Section 52 of the Copyright Act, 1957 provides for certain exceptions to infringement of Copyright and the same is reproduced below in the table identifying the various clauses of fair dealing and fair use:
| S. No. | Type of Works |
| A. | All works except Computer Programmes |
| Fair dealing of any work for private or personal use, including research | |
| Fair dealing of any work for criticism or review | |
| Fair dealing of any work for reporting of current events and current affairs | |
| B. | Computer Programmes |
| Use of work for the purpose for which it is supplied or making copies | |
| To obtain information essential for operating inter-operability of an independently created work by a lawful possessor | |
| Observation, study or testing in order to determine the ideas and principles | |
| Making of copies or adaptation of the work from a personally legally obtained copy for non-commercial personal use | |
| C. | All works |
| Transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public | |
| Transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration | |
| Reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding | |
| Reproduction by Legislature | |
| Reproduction for obtaining certified copy | |
| Reproduction by teacher or pupil | |
| Reproduction as part of questions to be answered in examination | |
| Reproduction as part of answers in an examination | |
| Performance in an education institution like school or college | |
| Reproduction in a newspaper, magazine or article | |
| Storing of a work in any medium by electronic means by a non-commercial public library | |
| The reproduction or publication of any matter published in Official Gazette except an Act of a Legislature | |
| A recording to be heard in an enclosed room for common use of residents in any residential premises | |
| Any Act of a Legislature when reproduced or published together with any commentary | |
| Report of any committee, commission, council, board appointed by Government | |
| Any judgement or order by court, tribunal or other judicial authority | |
| Any Act of a Legislature when reproduced or published together with any commentary | |
| Making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge for the use of the library if such book is not available for sale in India; | |
| Report of any committee, commission, council, board appointed by Government | |
| Any judgement or order by court, tribunal or other judicial authority | |
| The production or publication of a translation in any Indian language of an Act of a Legislature if no translation of such Act or rules or orders in that language has been previously been produced or published by the Government | |
| The production or publication of a translation in any Indian language of an Act of a Legislature if the translation is not available for sale to the public | |
| D. | Artistic work |
| The making or publishing of a painting, drawing, engraving or photograph of a work | |
| The making or publishing of a painting, drawing, engraving or photograph of a sculpture if such work is permanently situated in a public place | |
| The inclusion in a cinematograph film of any work permanently situated in a public place | |
| The inclusion in a cinematograph film of any other work by way of background or incidental to the principal matters | |
| The use by the creator of work, where the creator of such work made by him for the purpose of the work | |
| Making three dimensional object from two dimensional work | |
| E. | Architectural drawings |
| Reconstruction | |
| F. | Cinematographic films |
| Exhibition | |
| G. | Sound recordings and Cinematographic films |
| Storage | |
| H. | Literary, musical, dramatic works or sound recordings |
| Performance in religious ceremony or ceremony held by Central Government, Statement Government or local authority or marriages | |
| I. | Literary, dramatic or musical works |
| Reproduction for purposes of research, private study or publication | |
| Performance by an amateur club and performance is given to a non-paying audience, or for the benefit of a religious institution | |
| J. | Literary or artistic works |
| Importation of promotional materials | |
| Reading or reciting extracts in public | |
| Publication in collection of non- Copyright matter, bona fide intended for instructional use |
What acts constitute secondary infringement of Copyright?
Secondary infringement occurs where a person, with knowledge or reasonable grounds for such knowledge, carries out any of the following actions in relation to infringing copies of the work:
- makes for sale or hire, or sells or lets for hire, or byway of trade displays or offers for sale or hire;
- distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the Copyright;
- by way of trade exhibits in public;
- imports into India.
What remedies are available against a Copyright infringer?
The Copyright Act, 1957, provides the following remedies for Copyright infringement:
- Civil;
- Criminal;
- Administrative.
Are there any specific remedies for online Copyright infringement?
The courts can direct that infringing websites be blocked by internet service providers (ISPs) either as part of a John Doe order or a website-blocking order. The Copyright Act, 1957, says that any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by the Copyright Act, 1957, with the intention of infringing such rights, shall be punishable.
Under what circumstances is Copyright infringement a criminal act and what sanctions may apply?
The Copyright Act, 1957, prescribes that the intentional infringement or abetment of an infringement of the Copyright in a work would be considered as criminal act. Criminal remedies for Copyright infringement include:
- punishment through imprisonment which may not be less than six months but which may extend to three years;
- fines which shall not be less than Rs.50,000 and which may extend to Rs.200,000;
- search and seizure of the infringing goods including plates, which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work;
- delivery up of infringing copies or plates to the owner of the Copyright.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
