Copyright And Related Rights

Copyright and Related Rights: Basic Concepts and Scope Plan of Presentation Nature, Basic Principles and History of Copyright Works Protected Rights and Owners Duration of Copyright International Protection Related Rights.

Nature of Copyright A Legally Created Right An Intellectual Property Right An Exclusive Right Right of Limited Duration Bundle of Rights National in Nature.

Basic Principles of Copyright To Protect Author’s Personality and Ensure Economic Return for Him –Exclusive Rights to do certain things with reference to Creative Works

Balance Between Rights of Individual and Interest of Society –Limited Duration –Permitted Uses –Compulsory Licences.

Copyright Protection: History Invention of Printing Press in 15th century Copyright Act, 1709 of Queen Anne of England Copyright Act, 1847 in India Copyright Act, 1914 Copyright Act, 1957 Amendments in 1983, 1984, 1991, 1994 and 1999.

What is Protected? Classes of Works Section 13

Original Literary, Dramatic, Musical and Artistic Works Cinematograph Films Sound Recordings.

What is Protected? Substance Original Expressions not Ideas “There is no copyright in ideas. Copyright subsists only in the material form in which the ideas are translated.” (Jeffreys v. Boosey, 1885, 4 H.L.C. 815) Originality in Expression “What is protected is not original thought or information, but the original expression of thought or information in some concrete form.” (Copinger and Skone James on Copyright).

What is Protected? Substance The manner of expression of the thought must be original

(Univ.of London Press v. Univ. Tutorial Press; Cunniah Seo & Co, v. Balraj & Co. , AIR 1961, Madras 111) “What is worth copying is prima facie worth protecting.” (Privy Council in Macmillan v. Cooper, 1923, 40 T.L.R. 186)

Work Work: Ideas expressed in material form (Jefferys v. Boosey) Expending of Sufficient Labour, Skill and Capital (Macmillan & Co v. K.J.Cooper 51 1A 109)

Work must not be copied from another work. It should not originate from another author or work.

Originality No copyright in facts, historical, scientific or otherwise, but if the manner of presentation in a work is unique to its author, it becomes an original work

“To constitute original artistic work neither original thought nor original research is essential and the standard of originality is a low one. It is original skill or labour in execution and not originality of thought which is required.” (Associated Publishers v. K. Bashyam, AIR 1961 Mad. 114)

Works Protected I Literary Works - 1 Literary work includes computer programmes, tables and

compilations including computer databases (Sec. 2[0]) Works expressed in Print or Writing irrespective of literary quality (Agarwala Publishing House v. Board of Higher Secondary and Intermediate Education, UP AIR 1967,All. 91).

Works Protected II Literary Works - 2 Book of Arithmetic,e.g. Saral Middle School Ank Ganit (Misra Bandhu Karyalaya v. Shiv Ratan Lal Koshal, AIR 1970 MP 261)

Question Papers (Jagdish Prasad v. Parameshwar Prasad Singh AIR 1966 Patna 33)

Guide Books (E.M.Forster v. A.N.Parasuram AIR 1964 Mad. 331 Dictionaries (V.Govindan v. E.M.Gopalakrishna Kone, AIR, 1955 Mad. 391).

Works Protected III Literary Works - 3 Catalogues (Collis v. Carter Stoffell & Fortt.Ltd. 1898 78 L.T. 613) Compilations Tambola Tickets (Rai Toys Industries v. Munir Printing Press 1982 PTC 85 Del) Letters –Private letters –Commercial letters –Government letters.

Works Protected IV Literary Works - 4 Questionnaire for collecting statistical information –Involves sufficient skill, judgment and labour

Research theses and dissertations (Fateh Singh Mehta v. Singhal 1990 Rajasthan 1 PLR 69)

Parodies( Suntrust Bank v. Houghton Miffin Company, US 11th circuit court of appeal, dt. 10.10.2001) (Gone With the Wind v. The Wind Done Gone).

Works Protected V Literary Works - 5 Works Not Protected Titles: “There is no copyright in the title” (EM Forster v. AN Parasuram) Single word –Not as literary work, may be as artistic work (Associated Electronics v. Sharp Tools, AIR 1991 Knt. 406) (word sharp)

Advertisement Slogans: No copyright –Viswanath Iyer v. Muthukumaran, AIR 1948 Madras 139 –Pepsi Co. v. Hindustan Coco Cola 2001 (3) RAJ 458 Del.

Works Protected VI Literary Works - 6 Exemptions Court Judgments –Head Notes (Eastern Book Co. v. Navin J. Desai 2001 PTC 57 Del; Eastern Book co. v. D.M. Modek 2003 (1) RAJ 293 Del)

Acts of Legislatures Matter Published in Official Gazette.

Works Protected VII Literary Works - 7 Lectures Written speeches and lectures only Lecture notes are protected Extempore speeches and lectures –Action for breach of confidence

Delivery is a performance –Performer’s Rights.

Works Protected VIII Drama and Music Dramatic Works –Plays, Theatre Productions

Musical Works Both written and unwritten –Separate Rights in Lyric and Music.

Works Protected IX Artistic Works - 1 Paintings Cartoons (They are both Literary and Artistic) Photographs Sculptures Artistic Quality not a requirement Any work of Artistic Craftsmanship.

Works Protected XI Artistic Works - 2 Labels (Vijay Grover v. Biocure Labs 2002 (2) RAJ 111 Del. Logos (Celadar Productions v. Gaurav Mehrothra 2003 (26) PTC 140 Del [crorepati.com]; ICC Development International v.Evergreen Service Stations 2003 (26) PTC 228 Del [worldcup logo])

Colour Combinations (Godrej Co. v. Dora Cosmetics 2002 (1) RAJ 371 Del).

Works Protected XII Artistic Works - 3 Architecture Any building or structure having an artistic character or design, or any model for such building or structure (Sec 2 b) Works Protected XIII Derivative Works Cinematograph Films –Feature film, Documentary,Video,TV film

Sound Recordings –Phonograms, LPRs, CD-Roms

Not qualified by the adjective ‘original’ Separate Rights in the Works Embodied in Film or Record

[S.13(4)]

Protection of Concept Anil Gupta v. Kunal Das Gupta 2002 (25) PTC Del

(Swayamvaram v. Subh Vivah) Zee Tele Film v. Sundial Communications 2003 (27) PTC 457 (Bom.) Star India v. Leo Burnett 2003 (27) PTC 81 Bom (Kyon ki saas bhi kabhi bahu dhi v. Bahu bhi banegi kabhi saas)

Rights Moral Rights –Affecting personalaity

Economic Rights –Bringinging economic returns.

Moral Rights Section 57 Right of Authorship Right of Integrity –Digital Manipulation –No Right for Display

Inalienable Rights

Economic Rights Right of Reproduction (Sec. 14) Literary, dramatic, musical work •Reproduce in any material form •Storage in computer memory

Artistic Work •Reproduce in any material form including in 3 dimension of a 2 dimensional and in 2 dimension of a 3 dimensional work

Cinematograph Film •Making a copy including a photograph

Sound Recording •Making another sound recording

Right of Reproduction: Copying

At liberty to draw upon common source of information; but must expend labour and skill and should not copy with colourable variation. (Shyam Shah v. Gaya Prasad Gupta, AIR 1971 Allahabad) A copy is that which comes so near to the original as to give to every person seeing it the idea created by the original.( R.G. Anand v. Delux Films, AIR 1978 SC 1613)

Substantial Copying Volume of material borrowed Substantiality is a question of fact and degree determined on the basis of importance of the parts reproduced.(Landbroke Ltd. v. William Hill, (1964)1 WLR 273) A two and half minute speech in a 3hr. Film held to be a substantial copy (D.Narayan Rao v. V. Prasad, (1979)2APLJ 231) Intention – whether to save labour? Market position

Substantial Copying: Principles laid down by Supreme Court I R.G. Anand v. Delux Films( AIR, 1978 SC 1613) No copyright in an idea, subject matter, theme or plot or

historical or legendary facts Infringement is confined only to form or expression of the idea or the manner of its arrangement.

Substantial Copying: Principles laid down by Supreme Court II Where the source of the two works is common, similarities are necessary result. In such cases, in order to show infringement, it must be proved that the similarity is the subsequent work is substantial and fundamental in mode or presentation of such work.

Substantial Copying: Principles laid down by Supreme Court III Test is comparison by a reader or viewer who has gone through both the works. If such person is of the opinion that the subsequent work is the copy of the copyrighted work, infringement is established. Even if the theme is the same but presentation and treatment are intrinsically different and give a completely new colour to the new work, infringement of copyright is difficult to prove.

Substantial Copying: Principles laid down by Supreme Court IV

Where similarity is broad and material apart from

minor similarity which is coincidental, the intention to copy is negatived thus making it difficult to prove infringement.

Indirect Copying Making a two dimensional copy of a three dimensional

architectural plan. Writing a play based on a novel. Plays based upon novels which in turn were based upon original plays amounted to infringement of the original play Schlesinger v. Turner, (1890).

Sub-conscious Copying Author already familiar with the work New work bears marked similarity to the original Francis Day and Hunter v. Bron, 1963 2 All ER 16.

Rights of Issuing Copies and Communication to the Public Right of Issuing Copies –Digital Distribution

Right of Communication to the Public –Public Performance

–Internet Communication

Communication to the Public Making any work available for being seen or heard or otherwise

enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member actually sees, hears or otherwise enjoys the work so made available (s.2[ff])

Adaptation Rights Conversion into another form e.g. literary to drama Abridgement Picturizations, comic formats Right to make a cinematograph film or sound recording

Translation Rights Conversion of the source code in a computer programme

often written in hand, into the object code or machine language is a translation. (Apple Computer v. Computer Edge, 1984) A work of translation enjoys copyright.

Rental Rights  To give on hire –Only for computer programs, cinematograph films and sound recordings.

Resale Rights Author’s right to claim a share of the proceeds of each public resale of original copies of works of fine art or original manuscripts within the term of protection (S.53A) Author to be first owner Resale price to exceed Rs. 10,000 Share to be fixed by Copyright Board

Maximum 10%.

Ownership of Rights I Sec. 17 First Owner – Author Literary – author Drama – Dramatist Music – Composer Artistic work – Artist e.g. Painter, sculptor, architect Photograph – Photographer

Ownership of Rights II Author of Computer Programme Person who causes the work to be created “In the case of literary, dramatic, musical or artistic work which

is computer generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.” [UKCDPA 1988, Sec. 9 (3)]

Ownership of Rights III Cinematograph film – producer Sound Recording - producer

Author as Owner of Rights: Exceptions I In the course of employment – employer There could be copyright on a tangible piece of art or literature only but none on ideas. The ideas which become a literary composition after the author left the service were his independent work, not subject to any copyright of his erstwhile employer (V.T.Thomas v. Malayala Manorama AIR 1988 Ker.291).

Employment by newspaper, magazine – employer has publishing right; other rights with author

Work done for Valuable Consideration Photograph, painting, cinema for valuable consideration – person who pays money –Bunny Reuban v. B.J. Panchal 2001 (1) CTMR 143 Bom (Raj Kumar photos taken for valluable consideration; retention of negative not ownership of copyright)

–Vicco Labs v. Art Commercial Advertisers Supreme Court decision dt. 13.8.01 (Yeh Jo Hai Zindagi serial) (Only sponsors not producers; No element of liability to render accounts; hence not employment)

Author as Owner of Rights: Exceptions II Lecture delivered in public – Person delivering Government Work – Government Public Undertaking Work – public undertaking Work of International Organization – International Organization

Author as Owner of Rights: Exceptions III Work of apprentice – to Teacher: Dunk v. George Waller (1970) If a teacher writes a book then teacher because he is employed to teach and not write Question Papers – Paper setter Encyclopedia, dictionary – editor for collection Music under contract by film producer – film producer

Duration of Copyright Literary, dramatic, Musical and Artistic Works published during life time of author: Life + 60 years All Other Works: 60 years from date of publication –Posthumous, Anonymous Works –Works of Government and Organizations –Cinema and Sound Recording –Photograph

International Protection I Treaties Berne Convention for the Protection of Literary and Artistic

works (1886, revised 1908, 1928, 1948, 1967 and 1971) Universal Copyright Convention (1952, revised 1971) Agreement on the Trade Related aspects of Intellectual Property Rights [TRIPS](1994) WIPO Copyright Treaty (1996)

International Protection II How

Harmonization of National Laws through International

Treaties Minimum Rights/Obligations National Treatment Most Favoured Nation Treatment.

International Protection III National Treatment Each Member shall accord to the nationals of other

Members treatment no less favourable than that it accords its own nationals (Art. 3 of TRIPS)

International Protection V Through statute provision Through separate Order In India through separate Order The International Copyright Order, 2000.

RELATED RIGHTS Rights granted by law to communicators of works

to the public –Performers –Broadcasting Organizations

Related Rights Treaties Rome Convention 1961 TRIPS Agreement 1994 WIPO Performances and Phonograms Treaty

(WPPT) 1996

Performer’s Rights Section 38

Recording, broadcasting and communicating to the public of a

live performance Presumption of transfer of performer’s right to cinematographic film producer Duration: 50 years

Rights of Broadcasting Organizations Section 37 Broadcast Reproduction Right Re-broadcasting, Recording and Communicating to the

Public of a Broadcast Duration: 25 Years. T C JAMES E-MAIL: [email protected] Website: http://jamesthanickan.tripod.com