1. LEGISLATION AND REGULATION
1.1 What are the main sources of copyright law?
The Copyright Act, 1957 (the "Act"), supported by the Copyright Rules, 1958 (the "Rules"), is the governing law for copyright protection in India. Substantial amendments were carried out to the Copyright Act, in May 2012.
India follows common law legal system thus relies on case laws to interpret and set precedents in law. As a result there are a number of judicial decisions that contribute to the sources of copyright law in the India.
India is a member of the Berne Conventions and Universal Copyright Convention. The Government of India has also passed the International Copyright Order, 1958. According to this Order, any work first published in any country - which is a member of any of the above conventions - is granted the same treatment as if it was first published in India.
2. SUBSISTENCE OF COPYRIGHT
2.1 What type of works can be protected by copyright?
Copyright subsists throughout India in the following classes of works:
- Original literary, dramatic, musical and artistic works;
- Cinematograph films; and
- Sound recordings.
These are the broad categories, and can be summarised as follows:
The term 'Literary works' covers works that are in print or writing, irrespective of the quality of style of the work. Literary work refers not only to works of prose and poetry, but anything that would be under the ambit of 'literature'. However, there will be no copyright if the work is merely a collection of words, the collection of which involved no literary skill. In India, a computer programme is treated as a "literary work" and is protected as such.
A dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.
Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written to enjoy copyright protection.
Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture; and any other work of artistic craftsmanship. Any colour scheme, getup, layout, or arrangement of any alphabets or features qualifies as an artistic work.
Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.
Sound recording means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings
2.2 What is required for works to qualify for copyright protection?
Any work which falls under any of the categories mentioned above and the work seeking to be copyrighted must be original; however, it is not necessary that the work should have some original thought or idea. The law is only concerned about the originality of the expression of thought.
2.3 What rights does copyright grant to the rights-holder?
A copyright grants protection to the creator and his representatives for the works and prevents such works from being copied or reproduced without his/ their consent.
The creator of a work can prohibit or authorize 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; or
- translate the same to other languages
2.4 Are moral rights protected (for example, rights to be identified as an author of a work or to object to derogatory treatment of a work)?
Yes, the Copyright Act grants an author "special rights," which exist independently of the author's copyright, and subsists even after the assignment (whole or partial) of the said copyright. The author has the right to
- claim authorship of the work; and
- restrain or claim damages with
respect to any distortion, mutilation, modification, or other act
- relation to the said work if such distortion, mutilation, modification, or other act would be prejudicial to
- his honor or repute.
These special rights can also be exercised by the legal representatives of the author.
The right against distortion is available even after the expiry of the term of copyright after recent amendment. Earlier, it was available only against distortion, mutilation etc. done during the term of copyright of the work
What is the duration of copyright in protected works?
2.5 The duration of protection for copyright works varies according to the type of work and the date of creation:
It varies according to the type of work and the date of creation:
|Category of work||Duration|
|Literary, dramatic, musical or artistic works||Copyright expires 60 years from the end of the calendar year in which the author dies. Where a work has a joint author/ co-author, 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.|
|Sounds recordings||Copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the sound recording is published|
|Cinematograph Films||Copyright shall subsist until 60 years from the beginning of the calendar year next following the year in which the film is published|
2.6 For how long do moral rights subsist in copyright works?
An author's moral right as a right against distortion is available even after the expiry of the term of copyright.
2.7 Who is the first owner of a copyright work?
The concept of 'first owner' under Indian copyright law is quite important and may be determined as follows:
In the case of a 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.
If a photograph, painting or portrait 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 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 shall be the first owner of copyright.
In case of a government work, the copyright in the work shall vest with the government
2.8 Can copyright in a work be jointly owned? If so, what are the rights of a co-owner?
As per the Act, "work of joint authorship" 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. Thus the Act recognizes joint authorship. Joint authors fully enjoy all of the rights granted by the Act, as mentioned previously. The term of copyright of a work of joint authorship is calculated with respect to the author that dies last.
2.9 Can you register copyright? If so, what are the benefits of such registration and what other steps, if any, can you take to help you bring an infringement action?
Under Indian law, registration is not a prerequisite for acquiring a copyright in a work. A copyright in a work is created when the work is created and given a material form, provided it is original.
However, the Act provides for a procedure of copyright registration. Such registration does not confer any special rights or privileges with respect to the registered copyrighted work. The Register of Copyright acts as prima facie evidence of the particulars entered therein. The documents purporting to be copies of the entries and extracts from the Register certified by the Registrar of Copyright are admissible in evidence in all courts without further proof of original. Thus, registration only raises a presumption that the person in the Register is the actual author, owner or right holder.
In infringement suits and criminal proceedings, when time is of essence to obtain urgent orders, registration is of tremendous help. Copyright notice is not necessary under the Indian law to claim protection.
2.10 What steps should you take to validly transfer, assign or license copyright?
An assignment of copyright shall be valid only when it is in writing, signed by the assignor or by his duly authorized agent.
2.11 Can moral rights be transferred, assigned or licensed?
No moral rights cannot be assigned or transferred. They can only be ignored by author.
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.