Introduction to Copyright
Copyright can also be defined as the right to make copies which is for a particular period. It even includes authorization given by the owner of the copyright to person or group of person to-
To recreate the work in any material form, to share copies of the work with the public other than the copies which already exist in the public domain, to produce any cinematograph film or to develop any translation or adaptation of the work.
Copyright is the right to protect the original content of the creator. It includes [i] –
| Audio visual or only visual content | Audio content | Paper content |
| video, movies, tv shows and broadcasts, video games, paintings, photographs. | songs, music composition, sound recording, voice recording. | books, dramas, handwritten documents, articles, musical scores. |
[ii]The content should be original and creative at the same time to be protected under the copyright act. Names, title, slogans, or brief sentences are not considered original content. Copyright does not protect facts and ideas, but it can safeguard an individual’s own words and images it has created. In many cases, the court observed that the word original means not expressing the original work[iii]. The work must be copied from the original work of the owner to be considered an infringement. In the case (University London Press Ltd. V. University Tutorial Press Ltd, 1916) the same observations were made by the court. In Fredrick Limenson v. Chaos Davies, the same originality principle is observed.
It is a category of intellectual property right. it includes artistic, musical, educational, literary forms etc. these types of rights are not natural rights but are the ones that are provided by law. Intellectual property rights are territorial in nature. That is the reason due to which copyright created in one country cannot be protected by another country. Each country has its separate intellectual property laws. Usually, laws in different countries around the globe are more or less similar. But many nations have signed agreements to deal with any contradictions arising while dealing within separate jurisdictions.
[iv]At times it is difficult to access that the content posted is fair or not. Some aspects are framed by the law to identify fairness- The purpose for which the content is used, it should not be for commercial purpose, the nature of the content is an important facet to consider and If the content is copied what will be the market impact or value of the original content. All these guidelines were taken into consideration while testing the case for fair use in [v]Harper and Row v. Nation Enterprises.
There are certain other case studies involved testing of fair use, guidelines to be followed on determining the fair use of the content etc. in Folsom et al. v. Marsh et al, the court said that various provisions are to be taken into consideration, nature, and other attributes must be checked before concluding that the content is infringed or not. In [vii]Cambell v. Acuff-Rose-Music, the court stated that all the conditions determining fair use must be treated together and not in segregation.
[viii]Who can file a suit in case of infringement?
• The original owner of the copyright
• An assignee of copyright
• The person authorized to use or licensee
• The publisher of the work.
Civil Remedies
- Injunction- it is the legal process through which a person can be restrained from performing or if commenced restraining him from continuing such an illegal act. An injunction can be interlocutory or final. In some cases, interlocutory relief is also available which includes an interim injunction, search, and freezing orders etc. Interlocutory relief is not provided in every situation, if some other relief or method is possible to safeguard the rights of plaintiff that can be awarded. The court stated some guidelines to be followed before issuing interlocutory orders which were stated in the judgement in Brink’s Mat Ltd v. Elcombe (1988).[ix]
- Damages and accounts of profits- the copyright owner can claim for either damages or accounts of profits. Damages are claimed usually to compensate for the loss caused to the original owner due to infringement of its rights. Accounts of profits are the reimbursement of profits earned by the defaulter on illegally using copyrighted content.
- Punitive damages- compensatory damages are different from punitive damages. The compensatory damages are claimed to compensate for the loss. Nowadays courts are also awarding punitive damages to send a message to wrongdoers that courts are not casual about any breach. They do not take is only as a matter of rivalry between two individuals.
Other civil remedies include- deliver back the infringed copies, forfeiture of copyright content etc.
What is defined under Infringement?
Infringement occurs when a person without the consent of the copyright owner does the following-
[x]In case of literary, dramatic, or musical work or artistic work-
- If the work is imitated in any form including creating repository of such work in any medium which is electronic means.
- Issue of its copies to public not been the ones already available in public domain
- Performance of such work in public or communication of such work
- Creating an adaptation or translation of such work
- Created any cinematographic film or recording of any kind in relation to such work.
[xi]In case of cinematograph film or sound recording-
- Cloning the film or sound recording or any of its kind including taking a picture of a particular scene of a film.
- Trading such work including sale or hire irrespective of it has been sold priorly or not.
- Presenting such film or sound recording in front of the public.
Criminal Liabilities
If a person is convicted of infringement of copyright, the magistrate court has got powers to award a punishment including imprisonment of 6 months and/or a fine of up to 50,000 euros.
If the conviction is proved in the crown court the maximum term of imprisonment is 10 years and/or an unlimited fine.
[xii]The corporations can also be held liable in cases of copyright infringement. If the offence is committed by a company, every person who at the time of commission of such offence oversaw conducting a business will be held guilty and punished accordingly. If the person proves that the illegal conduct happens without its knowledge or it has practiced everything possible to prevent it, it will not be liable to punishment.
International Framework for protection of copyrights
Berne Convention
This convention came into force with merely the objective of protecting literary, artistic, musical works etc. the convention has updated its terms several times to cope up with new changes in technologies relating to copyright in the international regime. After the recent amendment, the berne convention is now called the Paris act. It is signed by various countries including India on April 1, 1928, United Kingdom on December 5, 1887, and United States of America on March 1, 1989 etc.[xiii]
This agreement provides 3 benefits to the member states-
The work registered or created in one country will be provided the same treatment in other countries if they are member states or signatories to the scheme. It provides for involuntary protection without any additional paperwork, compliance, or other requirement. The rights granted by the convention are independent of its protection in the home country.
Universal copyright convention
This convention was formulated by united nations educational, scientific, and cultural organization (UNESCO). It is developed for those countries who did not agree with the terms of berne convention but wanted to be part of a copyright agreement. India is the signatory of both the conventions.[xiv]
Trips Agreement
Trade related facets of Intellectual Property Rights, it is the most extensive and detailed agreement covering all kinds of Intellectual Property Rights. Trips has three characteristics-[xv]
Settlement of disputes– Most important feature of Trips is it provides for resolution of disputes unlike other agreements.
Enforcement– it provides for enforcement of intellectual property rights taking into consideration the origin country’s procedures and remedies.
Standards– Trips provide for minimum criterion of protection to be provided by each member. It provides for additional responsibilities of areas to which already existing conventions are silent or on such matters which are not given much importance.
Frequently Asked Questions
What is copyright Infringement?
When the work of original creator who has granted protection under the copyright act, if its work is copied, altered, mutilated, reproduced in any form, offered for sale, shared in public etc. all such cases lead to copyright infringement.
What is copyright?
It is the statutory right which protects the original content of the owner and even provides rights to other by taking prior permission or license from the owner to use it, make copies of it etc.
What copyright Protects?
Copyright provides protection to audio, video, literary work in any form, artistic work, educational related work etc. it does not protect facts and ideas.
Can copyright be Transferred, inherited, or assigned?
Yes, the copyright can be transferred, assigned, or inherited. When the owner gets a copyright of its work it gets a right automatically to assign it to someone else. Copyright can be jointly owned, if one owner dies it will be inherited to its legal heirs. Just like other properties, copyrights are also subject to transfer.
Referene
[ii] Ibid
[iii] Indira Gandhi National Open University School of Law, Basics of Copyright, October 2019
[iv] M.facebook.com/copyright
[v] Indira Gandhi National Open University School of Law, Copyright Piracy, October 2019
[vi] Ibid
[vii] Ibid
[viii] Ibid
[ix] Ibid
[x] Ibid
[xi] Ibid
[xii] Ibid
[xiii] Indira Gandhi National Open University School of Law, Related Rights and International Protection of Copyright, October 2019
[xiv] Ibid
[xv] Ibid
