Copyright
Copyright provides free and automatic protection for an author's original expression of ideas once they are captured in a specific medium, such as in a written or recorded format. There is no need to register for copyright; it is granted automatically when you write a poem, a book, or an article.
The most common works protected by copyright include books, films, music, artwork, newspapers, and sound recordings. It also extends to typographical arrangements, databases, computer programs, and compilations like academic journals. The scope of copyright covers a wide range of literary and artistic works, including:
Books and lectures
Dramatic and musical works
Choreography and cinematography
Drawings, paintings, and sculptures
Photographs, maps, and sketches
Rights Under Copyright
Copyright includes two main types of rights:
Moral Rights: These include the author's right of paternity (the right to be identified as the author). These rights are non-alienable, meaning they cannot be sold or transferred. Even if you assign the copyright to a publisher, you continue to be recognized as the author of the work.
Economic Rights: These are the rights to exploit the work for economic benefit. They include rights to performance and translation. Unlike moral rights, economic rights can be transferred, assigned, or licensed like any other property. These rights always belong to the owner of the copyright.
Who are the Authors?
Under copyright law, the "author" can be:
The writer of a book.
The painter of a picture.
The music composer.
The translator.
The cinematographer.
The photographer.
Duration of Protection
The duration of copyright protection is significantly longer than for other forms of IP.
Copyrights: The TRIPS agreement prescribes a minimum of 50 years for books and cinematographic works, and 25 years for photographic works.
Patents: 20 years.
Trademarks & Geographical Indications: 10 years (can be renewed).
Copyright Registration Procedure in India
Step 1: File an Application
The author, claimant, or owner of the work can file an application physically at the copyrights office, by post, or online. A separate application with the requisite fee is required for each work. Application fees vary by the type of work (e.g., ₹500 for an artistic work, ₹5,000 for a cinematograph film) and can range from ₹5,000 to ₹40,000. Payment can be made via demand draft, Indian postal order, or e-payment.
Step 2: Examination
After an application is filed and a dairy number is issued, there is a mandatory 30-day waiting period. During this time, the application is reviewed by a copyright examiner, and it is open for public objections.
Case 1: No Objections Raised: If there are no objections, the examiner scrutinizes the application for any discrepancies. If the application is complete and correct, it proceeds to the next step. If discrepancies are found, a letter is sent to the applicant, and a hearing may be conducted. Once the issue is resolved, the application moves forward.
Case 2: Objections Raised: If an objection is filed, letters are sent to both parties, who are then called for a hearing before the registrar. If the objection is rejected, the application proceeds to scrutiny as described above. If the objection is upheld or the discrepancy is not resolved, the application is rejected, and the process ends for the applicant.
Step 3: Registration
The registrar may ask for additional documents. Once the registrar is fully satisfied with the claim, the details of the copyright are entered into the Register of Copyrights, and a certificate of registration is issued. The process is complete when the applicant receives the Extracts of the Register of Copyrights (ROC).
Copyright Infringement and Issues
Copyright infringement is the unauthorized use of someone's copyrighted work. This occurs when a person uses a work without permission, thereby violating the copyright holder's exclusive rights, such as the right to reproduce, distribute, display, or perform the protected work.
What Constitutes Infringement?
According to Section 51 of the Copyright Act, infringement occurs when a person does any of the following:
Performs any act that only the copyright holder is authorized to do, without obtaining their permission.
Reproduces the work in any form without authority from the copyright holder.
Imports infringing copies of a work.
Permits a place to be used for the communication, sale, distribution, or exhibition of an infringing work, unless they were unaware or had no reason to believe it would result in a copyright violation.
Common Copyright Issues
Plagiarism: This involves copying copyrighted material and passing it off as one's own original work. While quoting or referencing a work is allowed, credit must be given to the copyright holder.
Ownership: If a person is an employee, the organization typically holds the copyright. However, if the person is a freelance writer, they are the sole owner of the copyrighted material.
Derivative Works: This is a new version of an existing work, such as translating a book into another language. A license is required to create a derivative work; without one, the creator can be held liable for copyright infringement.
Examples of Infringement
Using someone's song as background music in a music video without permission.
Downloading movies or songs from an unauthorized source.
Recording a TV program to watch later is permissible, but distributing or transferring it to others is an infringement.
Copyright Ownership and Rights
Determining Ownership
Initial Ownership: Initially, ownership belongs to the creator of the work. For example, if person A writes novel P, person A is the initial owner.
The "Work Made for Hire" Rule: If a person is hired to create a work, the employer or hirer is the owner of the copyright, not the original creator, unless an agreement states otherwise.
Joint Ownership: If two or more authors collaborate to create a work, they will have joint ownership.
Assignment: This refers to the transfer of copyright ownership. The person or company to whom the rights are assigned becomes the new owner, known as the assignee.
Rights of Copyright Owners
The Copyright Act of 1957 grants several rights to the copyright holder:
Right to Reproduction: The owner can make copies of their work in any form and can take legal action against unauthorized reproduction.
Right to Distribute: The owner has the right to distribute their work as they see fit and can transfer some or all of these rights (e.g., allowing someone to translate the work).
Right to Make Derivative Works: The owner has the exclusive right to create derivative works. To make a movie based on a novel, for instance, one must get permission from the novel's author.
Right to Publicly Perform: The owner has the right to perform their work publicly, such as adapting a novel into a play or concert.
Right of Paternity: This allows the copyright holder to claim authorship and receive due credit. If a movie is based on a novel but fails to acknowledge the author, the author can take legal action.
Sui Generis Right: This specific right is available to the creators of databases and software and lasts for 15 years.
Royalties in IPR
A royalty is a legally binding payment made to an individual or company for the ongoing use of their assets, including copyrighted works, franchises, and natural resources. It is paid by a third party to the owner for the use of a product or patent. The terms of these payments are detailed in a licensing agreement, and royalty agreements should benefit both the person paying (licensee) and the person receiving (licensor). The royalty rate is typically a percentage based on factors like exclusivity, technology, and available alternatives.
Types of Royalties
Book Royalties: Paid by publishers to authors, typically as an agreed amount for each book sold.
Performance Royalties: Paid to the owner of copyrighted music whenever the song is played on the radio, used in a movie, or otherwise used by a third party.
Patent Royalties: Paid by a third party to a patent owner through a licensing agreement to use their patented product.
Franchise Royalties: Paid by a franchisee to a franchisor for the right to open a branch under the company's name and brand.
Mineral Royalties: Paid by mineral extractors to property owners for the right to extract minerals from their land.
Key Considerations
Licensing Agreements: These agreements define the limits and restrictions of the royalties, including geographic limitations, the duration of the agreement, and the types of products covered. They are regulated differently depending on whether the owner is a government or a private entity.
Royalty Rates: Rates are defined as a percentage of sales or a payment per unit. They are affected by many factors, including the exclusivity of rights, available alternatives, market demand, and the level of innovation. To be estimated accurately, the transactions must be willingly executed between the parties.