Under the Copyright Act, a right is granted by law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.
Copyright ensures certain safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity as well as contributes in development of creativity. 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, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.
Copyright in a work is considered as infringed only if a substantial part is made use of unauthorized. However the Copyright Act also recognizes that the that any exploitation of work which are for social purposes such as education, religious ceremonies etc. shall be exempted from the operation of the rights granted in the Act.
The Act also provides that subject to certain conditions, a fair deal for research, study, criticism, review and news reporting, as well as use of works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In order to protect the interests of users, some exemptions have been prescribed in respect of specific uses of works enjoying copyright. Some of the exemptions are the uses of the work (i) for the purpose of research or private study, (ii) for criticism or review, (iii) for reporting current events, (iv) in connection with judicial proceeding, (v) performance by an amateur club or society if the performance is given to a non-paying audience, and (vi) the making of sound recordings of literary, dramatic or musical works under certain conditions.
Copyright does not ordinarily protect titles by themselves or names, short word combinations, slogans, short phrases, methods, plots or factual information. Copyright does not protect ideas or concepts. To get the protection of copyright a work must be original.
A work means any of the following , namely, a literary, dramatic, musical or artistic work, a cinematograph film, or a sound recording.
Copyright subsists throughout India in the following classes of works:
- Original literary, dramatic, musical and artistic works;
- Cinematograph films; and
- Sound recordings.
An 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.
"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 down to enjoy copyright protection.
"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.
"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.
"Government work" means a work which is made or published by or under the direction or control of
- the government or any department of the government
- any legislature in India, and
- any court, tribunal or other judicial authority in India.
"Indian work" means a literary, dramatic or musical work,
- the author of which is a citizen of India; or
- which is first published in India; or
- the author of which, in the case of an unpublished work is, at the time of the making of the work, a citizen of India.
Copyright protects the rights of authors, i.e., creators of intellectual property in the form of literary, musical, dramatic and artistic works and cinematograph films and sound recordings. Ordinarily the author is the first owner of copyright in a work. An Author under the Copyright Act shall mean
- In the case of a literary or dramatic work the author, i.e., the person who creates the work.
- In the case of a musical work, the composer.
- In the case of a cinematograph film, the producer.
- In the case of a sound recording, the producer.
- In the case of a photograph, the photographer.
- In the case of a computer generated work, the person who causes the work to be created.
In a Musical Sound Recording the rights may vest in the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music, and the person or company who produced the sound recording. Thus it would be advisable that a license is obtained from each and every right owner in the sound recording. This would ,inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music.
In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.
In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Copyright is assignable to any person who on the basis of assignment can claim ownership. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof. Assignment must be in writing signed by the assignor or by his duly authorised agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
If the Assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment. If there is no fixed period of assignment then in such case the assignment shall be for a period of five years from the date of assignment. Similarly, if the territorial extent is not defined then the assignment shall be limited to the territory of India.
There are various rights conferred in case of Copyright namely
In the case of a literary work (except computer programme), copyright means the exclusive right
- To reproduce the work
- To issue copies of the work to the public
- To perform the work in public
- To communicate the work to the public.
- To make cinematograph film or sound recording in respect of the work
- To make any translation of the work
- To make any adaptation of the work.
It is not necessary to register a copyright. Copyright vests in an author from the moment the work is conceived and it does not require any formality. However, certificate of registration of copyright and the entries made therein serve as prima facie evidence in a court of law with reference to dispute relating to ownership of copyright. Copyright.
Under the Indian Law infringement of Copyright not only entitles the author to claim damages but he also has a right to initiate criminal proceedings for which the Copyright Act has specific provision. Any person found to be infringing a copyright material makes himself liable for punishment which may include a jail term as well as penalty.
We, at Infini Juridique, are well versed with the provisions of the Copyright and can help and assist you in protecting your copyright on all kinds of work including the Computer Program and its source code, Literary Work, Musical as well as Cinematographic work. We can help in providing legal assistance in infringement action.