FAQs – Copyright

Copyright is a form of intellectual property which relates to artistic creations, such as books, literary, paintings & sculptures, dramatic, musical, producers of cinematographic works, sound recordings, artistic work, or technology-based works such as computer programs and electronic databases; provided by the government to the authors of original works of authorship. In fact, it is a bundle of rights including, rights of reproduction, communication to the public, adaptation and translation of the work.

The object of copyright law is to encourage authors, composers and artists and designers to create original works to claim by rewarding them with exclusive right for specified period to exploit the work for monetary gain, reproduce the works for publishing and selling them to public and protect the original work from an unlawful reproduction or exploitation of work.

No. There is no copyright in ideas. Copyright subsists only in the material form to which the ideas are translated. For instance, a person may have a brilliant idea for a story or for a picture but if he communicates that idea to an artistic or play writer then the production which is the result of the communication of the form and the owner of the idea has no rights in that product. Since there is no copyright in ideas or information, it is no infringement of copyright to adopt the ideas of another or to publish information derived from another.

Copyright in India is covered under the Copyright Act, 1957 and the accompanying Copyright Rules, 1958.

No. Titles of book or literary articles, pseudonyms are not protected under the copyright law. Besides, there is no copyright in titles of cartoons. For instance, a newspaper publisher who employs a cartoonist to produce cartoons for him does not acquire a property right in the names of such characters even though he becomes the owner of the copyright in the cartoons published during the term of employment of the cartoonist

The protection and safeguards of the rights provided by copyright to the rights and efforts of creators namely, writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software over their creations are beneficial to protecting and rewarding creativity. Creators are assured that their works can be circulated without fear of unauthorized copying or piracy.

Copyright subsists throughout India in the following classes of works:
Original literary, artistic, dramatic, musical works; Cinematograph films; and Sound recordings

Copyright law protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is creativity in the choice and arrangement of words, musical notes, colors and shapes. So copyright law protects the owner of property rights against those who copy or otherwise take and use the form in which the original work was expressed by the author.

Books, pamphlets and other writings; dramatic or dramatic-musical works; choreographic works; musical compositions with or without words; cinematographic works, drawing, painting, architecture, sculpture, engraving and lithography; photographic works, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science; translations, adaptations, arrangements of music and other alterations of a literary or artistic work, are protected as original works without prejudice to the copyright in the original work. Collections of literary or artistic works such as encyclopedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations are to be protected as such, without prejudice to the copyright in each of the works forming part of such collections.

Publication means making a work available to the public by issue of copies or by communicating the work to the public

No. The term of copyright varies according to the nature of the work. Section 22 to 29, 37(2) and 38(2) of the Copyright Act covers the term of copyrights.

The normal term of the copyright is fixed, to be the life of the author, plus a period of 60 years after his death in case of literary, dramatic, musical or artistic work, published within the lifetime of the author. In the case of a work of joint authorship, the author who dies last plus a period of 60 yrs would be the term for such a copyright. Shorter terms are fixed for anonymous or pseudonymous works, cinematograph films, mechanical contrivances, photographs, etc.

If published within the life time of the author of a literary work, the term is for the life time of the author plus 60 years. (b) For cinematographic films, records, photographs, posthumous publication, anonymous publication, works of government and international agencies, the term is 60 years from the beginning, of the calendar year following the year in which the work was published. (c) For broadcasting, the term is 25 years from the beginning of the calendar year following the year, in which the broadcast was made.

Once registered, the registration is valid for the full term of the copyright. There is no requirement of renewal.

A registration is prima facie evidence of the entries made therein. An extract from the Registrar showing its registration is an admissible evidence of the particulars therein.

• the positive condition that the work has to be original;
• the negative condition that the protection can extend only to expression and not to ideas; and
• the condition of fixation which is implicit under the Act.

Berne Convention grants “inherent protection” which means the holder does not have to be necessarily complying with any formalities for the purposes of copyright protection. It is recommended to obtain registration because registration is a prima facie proof of ownership and it helps to persuade judicial and administrative authorities to grant you interim relief even without notice to the infringers.

Once your creation has been fixed in a tangible medium of expression the copyright on your work is protected by copyright law. By registering your copyright you will have irrefutable proof of first ownership of your intellectual property. This proof can be used in a court of law in alleged cases of copyright infringement. When faced with an alleged case of copyright infringement you need this proof. Proving the date of creation can be a problem. Copyright registration can make the proof on this point a lot easier. By registering it you will have an individually numbered certificate of registration of copyright relating to that particular copyright work.

Some creations do not meet copyright protection requirements: ideas; information as itself; mathematical theories; algorithms; works which are not original can not be protected under Copyright

Yes. Both published and unpublished works can be registered

A web-site contains several works such as literary works, artistic works (photographs etc.), sound recordings, video clips, cinematograph films and broadcastings and computer software too. Therefore, separate applications to be filed for registration of all these works.

As per the principles of natural justice’ no one can be deprived without being heard. As per the rule 27 of the Copyright Rules, 1958 no application is rejected without giving an opportunity to be heard. The applicant himself or his/her pleader may appear in the hearing. As per section 72 of the Copyright Act, 1957 any person aggrieved by the final decision or order of the Registrar of Copyrights may, within three months from the date of the order or decision, appeal to the Copyright Board.

The duration of the protection depends on the type of copyright. In case of ‘literary work’ Copyright lasts for the life span of the author and for sixty years after the author’s death. The same principle applies to joint authorship (two or more), with the copyright lasting for the life span of the longest surviving author and sixty years after the longest surviving authors death. In the case of anonymous and psydonoumous work the copyright will subsist for sixty years from the date of publication.

Yes, copyright can be licensed to another person by the owner. In practice, most of the computer software are issued by license and are not outright sale.

Yes, under section 19 of The Copyright Act, it is permissible. 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. Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. Copyright is a kind of personal movable property. It can be transferred by assignment, testamentary disposition or by operation of law.

The owner of the copyright in an existing work or prospective owner of the copyright in a future work may assign to any person the copyright, either wholly or partially in the following manner:
• for the entire world or for a specific country or territory;
• or for the full term of copyright or part thereof;
• or relating to all the rights comprising the copyright or only part of such rights.

Complying the process of an Assignment Deed is the mode of assignment of a Copyright. Assignment of copyright is not valid till it is in writing, signed by the assignee or by his authorized agent. The assignment should identify the work and specify the rights assigned, the duration and territorial extent of the assignment. The assignment deed must also specify the royalty payable, if any. These details need to be recorded while registering copyright in the Statement of Particulars.

The use of a copyrighted work created by a third party requires prior consent if the planned exploitation implies the use of all or part of the rights granted to the author. Without the prior consent of the author, the author and/or the copyright owner can claim copyright infringement and damages.

Copyright in work is considered to be infringed-
• when any person without a license granted by the owner of the Copyright or the Registrar of Copyrights or in contravention of the conditions of a license so granted or of any conditions imposed by a competent authority under Copyright act – does anything, the exclusive right to do which is, by Copyright act, conferred upon the owner of Copyright, or permits for profit any place to be used for the communication of the work to public where such communication constitutes an infringement of the Copyright in the work.

• when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the Copyright, or by way of trade exhibits in public, any infringing copies of the work. It is not necessary that the alleged infringement should be an exact or verbatim copy of the original but its resemblance with the original in a large measure is sufficient to indicate that it is a copy.

If there has been copyright infringement, then legal action through appropriate court may be necessary to stop it continuing, and the copyright owner can claim financial compensation too.

Yes. Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act.

No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Copyright Act. The District Court concerned has the jurisdiction in civil suits regarding copyright infringement.

The District Court has the jurisdiction in civil suits regarding copyright infringement. A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts.

A copyright owner may bring an action for infringement seeking injunction, damages or account of profits. The law also makes provisions for criminal action against the alleged infringer.

When a work is published by authority of the copyright owner, a notice of, copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works to which India is a signatory use of copyright notice is optional. It is however, a good idea to incorporate a copyright notice.

The Berne Convention is the most ancient global treaty in copyrights and is open to all countries. The Berne Convention has been modified many times to enhance the global system of protection envisioned in the convention. The first major modification was effected in 1908, followed by further modifications in Rome in 1928, in Brussels in 1948, in Stockholm in 1967, and in Paris in 1971. The primary purpose of the Berne Convention is to safeguard the rights of authors in literary and artistic works in the most effective and integrated way.

The various international copyright conventions include:
• Universal Copyright Convention at Geneva in 1952.
• Universal Copyright Convention as revised at Paris on 24th July 1971.
• Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24th July 1971 as amended on September 28th 1979.
• WIPO World Intellectual Property Organization Diplomatic Conference Geneva, December 2 to 20, 1996 WIPO Copyright Treaty of December 20th 1996.
• WIPO Performances and Phonograms Treaty of December 20th 1996
• The World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, Final Act Marrakech on 15th April 1994.

Under the Copyright Act there is a Registrar of Copyright and a Copyright Board, which specifically ascertain roles and responsibilities. Copyright Office is an Administrative Authority and Copyright Board is a quasi–judicial body headed by a retired Supreme Court Judge

It is an authority constituted by the Central Government constituting of a Chairman and not less than two members. The Chairman shall be a person who is qualified for appointment as a High Court Judge. Apart from hearing an appeal against the order of Registrar of Copyright, the Board has certain other functions too.

The Copyright Act provides for a quasi-judicial body called the Copyright Board consisting of a Chairman and two or more, but not exceeding fourteen, other members for adjudicating certain kinds of copyright cases. The Chairman of the Board is of the level of a judge of a High Court. The Board has the power to:
• hear appeals against the orders of the Registrar of Copyright;
• hear applications for rectification of entries in the Register of Copyrights;
• adjudicate upon disputes on assignment of copyright;
• grant compulsory licenses to publish or republish works (in certain circumstances);
• grant compulsory license to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work;
• hear and decide disputes as to whether a work has been published or about the date of publication or about the term of copyright of a work in another country;
• fix rates of royalties in respect of sound recordings under the cover-version provision; and
• fix the resale share right in original copies of a painting, a sculpture or a drawing and of original manuscripts of a literary or dramatic or musical work.

According to provisions of section 17 of the Copyright Act, the author of the work is the first owner of the copyright in the work.

India is one of the countries party to the Paris Convention, so the provisions for the right of priority are applicable. On the basis of a regular first application filed in one of the contracting state, the applicant may, within six months apply for protection in other contracting states; later application will be regarded as if it had been filed on the same day as the first application.

A notice of copyright is desirable on the copies made available to public. As per the Berne Convention for protection of literary and artistic works, use of copyright notice is optional.

According to section 2(d) of the Copyright Act ‘author’ means:
• in relation to a literary or dramatic work, the author of the work;
• in relation to a musical work, the composer;
• in relation to an artistic work other than a photograph, the artist;
• in relation to a photograph, the person taking the photograph;
• in relation to a cinematograph film or sound recording, the producer; and
• in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created.

Copyright confers on the author the exclusive right in respect of the various acts in relation to the work.

Except in relation to computer programs and sound recording, these include the right to:
• Reproduce the work
• Issue copies of the work to the public
• Perform the work in public
• Make a cinematograph film or sound recording
• Make translation of work
• Make adaptation of the work

In respect of computer programs it includes the right to:
• Do any of the acts afforded to the other works
• Sell or give on commercial rental a copy of the work

The economic rights of an author are the rights of reproduction, broadcasting, public performance, adaptation, translation, public recitation, public display, distribution and others as exhaustively elaborated in section 14 of the Act.

The moral rights of an author include the author’s right to object to any distortion, mutilation or other modification of his work that might be prejudicial to his honor or reputation.

A work of joint author means a work produced by the collaboration of two or more authors in which contribution of one author is not distinct from the contribution of the other author or authors. A work maybe created by a single author or by more than one author, a work of joint authorship can also claim copyright.

Yes. Copyright of foreign works are protected in India. Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works.

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 are:
• for the purpose of research or private study,
• for criticism or review,
• for reporting current events,
• in connection with judicial proceeding,
• performance by an amateur club or society if the performance is given to a non-paying audience, and
• the making of sound recordings of literary, dramatic or musical works under certain conditions.

A computer program is a set of instructions expressed in words, codes, schemes or any other form. Yes. Computer programs are considered to be literary works and are entitled to copyright protection. As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programs, tables and compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application for registration of copyright for software products.

The term ‘database’, which is defined in the Information Technology Act 2000, as a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalized manner and have been produced by a computer, computer system or computer network and are intended for use in computer, computer system or computer network.

Copyright protection would exist in selections and arrangements as long as at least a minimum degree of creativity was involved in forming the compilation. However, copyright in a compilation extends only to what has been created by the person making the compilation and does not confer any new right in pre-existing material that has been compiled. What can be protected as a copyright work is the end result of such compilation and not the matters that have gone into for creating such compilation. For example, in an audio cassette which contains several original songs sung by different persons and who have the copyright in those songs, the copyright exists in the manner the songs are compiled in the cassette.

No. An arbitrary sequence of numbers lacks sufficient originality to be the subject of copyright protection. However, copyright protection can exist in the “architecture” of a computer program even if it was made up of unprotectable elements where it is possible to conclude that there is a degree of expression in establishing interrelationships between the various elements involved.

On the basis of reciprocity, Central Government has by Copyright Control Order 1999, published list of countries where the provisions of Copyright Act has been extended. All works published in those countries are considered as same as works published in India, authors of such countries will be given same treatment as that is offered to an Indian citizen. Government has also extended the Broadcasting reproduction rights to the above countries, if any work was broadcast from the listed countries or any performance was made in those countries.

In relation to a dramatic work, ‘adaptation’ means converting it into a non-dramatic work, for example, converting a drama into a book. In relation to a literary work, it means converting it into dramatic work. In relation to both of the above converting it in a form, where the book or drama is expressed in pictures.

It implies exclusive right to make another sound recording embodying it, to sell or give on hire copies of the work and communicate the work to public.

The term ‘cinematographic film’ includes a sound track associated with the film, that is, the sound embodied in a sound track, which is associated with the film. Also, a film involves performance by various actors, dancers and other performers. Once such performers consent to the incorporation of their performance in a film, they lose their performer’s rights. The copyright in the entire film may cover portions of the film; in other words, the owner of the copyright of the film will be entitled to the right on the portions of the film too.

As per the Copyright Act a ‘performer’ includes an actor, singer, musician, dancer, acrobat, juggler, snake charmer, a person delivering lecture, or any other person who makes a performance. “Performance” in relation to a performer’s right means any visual or acoustic presentation made live by one or more performers.

Where a performer appears or engages in any performance, he shall have a special right known as performer’s right. This shall subsist till fifty years from the year of performance. This right confers on the performer exclusive right to make a sound or visual recording of the performance, reproduce the same, broadcast the performance or communicate the performance to the public through any medium. However, if a performer consents to incorporate his performance in a cinematograph film, all the above rights vest in the producer of the film.

A performer has a special right to do the following:
• To make a sound or visual recording of the performance.
• To reproduce a sound or visual recording of the performance.
• To broadcast the performance.
• To communicate the performance to the public otherwise than through broadcast.

There are many right holders in a musical sound recording. For example, 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.

A sound recording generally comprises various rights. It is necessary to obtain the licenses 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.

Where 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 the territorial extent of assignment of the rights is not specified, it shall be presumed to extent within the whole of India.

The right of reproduction commonly means that no person shall make one or more copies of a work or of a substantial part of it in any material form including sound and film recording without the permission of the copyright owner. The most common kind of reproduction is printing an edition of a work. Reproduction occurs in storing of a work in the computer memory.

The economic and commercial exploitation of copyright may be done by licensing such exclusive right to entrepreneurs like publishers, film producers and record manufacturers for a monetary consideration. People who economically exploit the copyright are greater beneficiaries of the copyright law than the creator’s of works of copyright.