INTRODUCTION
Only human beings are capable of creativity. They can be authors, composers, artists and designers for creating their original works. Generally, it is they alone who will be entitled to enjoy the exclusive rights to do or authorize others to do certain acts in relation to rights vests with them. Copyright was the first intellectual property which received legal recognition in the world. “The right which a person acquires in a work which is the result of his intellectual labour is called copyright.”
In ancient days, creative writers, musicians and artists wrote, composers and made their work for fame and recognition rather than to earn a living. The importance of copyright was recognised only after the invention of printing press in 15th century which enabled the reproduction of books in large number practicable. The first copyright Act in England which was in fact first copyright Act in the world was passed in 1709 called the “Statute of Anne” which provided that the author of any book already printed will have sole right of printing. Donaldson V. Beckett, 1774 is the ruling by the United Kingdom House of Lords that denied the continued existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.
Copyright is a kind of intellectual property the importance of which has increased enormously in this era of modernisation where rapid changes are taking place in the field of printing, entertainment, film, media and music and computer industries.
As an intellectual property right, copyright has a great advantage that it arises automatically. It comes into existence as soon as the work is created. There is no registration form or fee.It is noteworthy that there are strict limits to the protection copyright affords. Unlike a patent, copyright is not a true monopoly. It does not protect the idea as such. What copyright protects is the form in which the work is expressed.
As regards the aspect enforcement, Indian enforcement agencies are now working very effectively and there has been a notable decline in the levels of piracy in India. In addition to intensifying raids against copyright infringers, the government has taken a number of measures to strengthen the enforcement of copyright law. It include setting up of Copyright Enforcement Advisory Council, organisation of seminars/workshops to create greater awareness about copyright law among the enforcement personnel and the general public, setting up of collective administrative societies and creation of separate cells in state police headquarters. Copyright enforcement can be enforced through court of law and the copyright Act is now fully conformity with the TRIPs obligations.
The Act provides not only civil but also criminal remedies, in case of infringement of copyright, against infringer. The two remedies are distinct and independent and can be availed of simultaneously. The Copyright Act, 1957 prescribes mandatory punishment for piracy of copyrighted matter commensurate with the gravity of the offense with an effect to deter infringement, in compliance with the TRIPs agreement.
INTERNATIONAL CONVENTIONS DEALINGS WITH COPYRIGHT INFRINGEMET
There is no such thing as “international copyright” that will automatically protect an author’s writing throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on national laws of the country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international treaties and conventions[1]. As the worldwide economy and international trade has grown, it has become crucial that copyright property be protected on international basis poses substantial problems because each country operates independently with its own laws. There is no such thing as an international copyright law that would provide copyright protection on world basis. Instead most countries have their own copyright laws, which are not applicable outside of their borders. The US copyright Act, for instance has no effect outsides of their borders of the US. If a work copyrighted under US copyright law is infringed in another country, the US has no jurisdiction over that infringement.
2.1 The Berne Convention
The Berne Convention was concluded in 1886, and now has over 100 member countries. It aims to protect the rights of authors by providing certain established standards of protection for their works. Two major international principles underlying the Berne Convention are: The principle of national treatment; The principle of automatic protection.
The principle of national treatment allows the courts of a country to apply their national law to acts that occur within that country, rather than a foreign law. Decisions are therefore more likely to be soundly based, since judges will apply a law with which they are familiar.
Under the principle of automatic protection, a work will be granted protection even if it fails to satisfy formalities, such as registration or legal deposit, under the national law of a member country.
The Berne Convention covers a wide range of works including books, pamphlets and other writings, lectures, dramatic works and illustrations. Translations, adaptations, arrangements and collections are also protected. Generally, works are protected for 70 years after the author’s death.
The works of nationals of all Berne Convention member countries are protected. Some works of authors who are not nationals of Berne Convention member countries may also be protected if the work was first or simultaneously published in a member country.
The Berne Convention gives authors certain exclusive rights, including making or authorizing translation, reproductions and public recitations; and protection of moral rights.
Each member country may permit certain uses of works in its legislation, such as a statutory license for reproduction and communication of works by educational institutions. The Berne Convention limits the impact of such exceptions to the copyright owner’s exclusive rights by providing that the normal exploitation of the work and legitimate interests of the author must not be affected.
2.2 Universal Copyright Convention (UCC)
The UCC was concluded in 1952 under the auspices of the United Nations Education, Science and Cultural Organization (UNESCO) in an attempt to incorporate a greater number of countries into the international copyright community. UCC protection is lower and more flexible than the Berne Convention. It was felt that it was better suited to the needs of developing countries. The UCC embodies the principle of national treatment, but not automatic protection. A UCC member country is not required to give a foreign work automatic protection if national formalities for protection have not been met. Consequently, the © symbol, name and date of first publication should be placed on the work to give reasonable notice of claim of copyright.
Literary, scientific and artistic works are protected by the UCC. Generally, works will be protected for a minimum of 25 years beyond the life of the author. The UCC requires member countries to provide minimum rights to rights holders. Exceptions to these rights may be made as long as they do not conflict with “the spirit and provisions of this Convention”.
2.3 The Geneva and Rome Convention
Many countries including US have been hesitant to recognize the producers of sound recordings and performers and author under copyright law. Consequently, ownership rights in sound recording have historically been protected by several neighboring is related rights treaties that are not technically part of copyright law. The convention for the protection of producers of phonograms against unauthorized duplication their phonograms (the Geneva Convention) were passed in 1971 and became effective in US from 10 March 1974. The Geneva Convention is designed to provide the international protection against the record piracy by recognizing the rights of reproduction, distribution and importation of the sound recordings. Another treaty, the international protection for the performers, producers of phonograms and broadcasting organization (the Rome convention) provides a higher level of protection than Geneva Convention. However, the US has not joined the Rome Convention.
2.4 The North American Free Trade Agreement
Starting in the 1980’s the US began a campaign to link IP protection into multinational trade-based Agreements more closely to international trade by incorporating the copyright protection in to multinational trade-based agreements. This resulted from newly developed economic rights philosophy for copyright protection and rests on the exemption that the failure to adequately protect the intellectual property on an international basis is an unfair trade practice. The NAFTA (http:/www.fas.usada.gov/itp/policy/NAFTA/nafta.asp North American Free Trade Agreement) was entered in to 1992 by the US, Canada and Mexico. NAFTA requires copyright protection for computer programs, data compilations and sound recordings, recognition of rental rights for sound recordings, limitations on compulsory licensing and recognition of rights against unauthorized importations of copies of the protected work.
NAFTA contains detailed provisions providing for the protection of sound recordings. Producers of sound recordings can authorize or prohibit a recordings direct or indirect reproduction, importations of unauthorized copies, first public distribution and commercial rental. It also provides for a minimum copyright term of 50 years for sound recordings.
2.5 The General Agreement of Trade and Tariffs
The GATT is a multinational treaty designated to encourage free international trade. GATT includes an agreement on Intellectual Property called the trade related aspects of intellectual property rights. Under trips, member countries must agree to enact copyright laws that give effect to the substantive provisions of the Berne Convention. Trips incorporate most of the minimum standards specified by the Berne convention. However, give primarily pressure by the U.S., trips does not require the recognition of moral rights. Trips incorporate the Berne convention requirement of a minimum term of copyright protection lasting for the life of the author plus 50 years. If a works term is not based on the life of natural person, the term must be at least 50 years from either the year of the publication or the creation of the work if the work has not been published within 50 years of publication of its creation[2].
3. INFRINGEMENT OF COPYRIGHT IN INDIA
Copyright law confers upon the owner of the work a bundle of rights in respect of reproduction of the work and the other acts which enables the owner to get financial benefits by exercising such rights. If any of these rights relating to the work is carried out by a person other than the owner without the license of the owner or a competent authority under the act, it constitutes infringement of copyright in the work. Since copyright is granted for a limited period, there will be no infringement if the reproductions of the work or other acts concerned are carried out after the term of the copyright has expired. The exclusive rights conferred on the owner depends on the nature of the work in which copyright subsists. Accordingly the type of acts which will constitute infringement will also depend on the nature of work. Section 51 defines infringement of copyright generally. Section 52 defines a long list of acts which do not constitute infringement of copyright. These are in nature of exceptions to the exclusive rights conferred up on the copyright owner. They also serve as defences in an action for infringement of copyright.
The exclusive right granted under the Act extends also a translation or adaptation of the work or to a substantial part thereof. Thus copyright will be infringed if the substantial part of the work was reproduced. What amounts to substantial part of work will depends on the circumstances of the case.[3]
3.1. Meaning and types of infringement
Copyright infringement issue has raised an alarm in today’s world. When a person intentionally or unintentionally copies or uses the work of another creator, without his prior consent or permission, or any contract or license or assignment with the author as covered by the copyright law, it amounts to infringement.[4] Infringement can be broadly classified into two:-
1. Primary infringement;
2. Secondary infringement.
Primary infringement deals with the real act of copying, while secondary infringement deals with other kinds of dealing like selling the pirated books, importing etc.
3.2 Causal Connection
When two works are similar and when the defendant has access and opportunity to copy the plaintiffs work the court may infer causal connection. One factor which may be very helpful in providing this causal link is the fact that infringing works contain the same mistakes that occur in the first work.
What is copying? It can be accumulation of insubstantial taking, subconscious copying. Music composers sometimes subconsciously copy songs that they had heard a decade ago.
3.4 Copyright protection
Copyright protection is automatic. The work is protected the moment it is created and copyright notice is placed on work for its protection. Registration of copyright is not compulsory either for acquiring copyright or for by enforcing by way of suit against the infringement of the copyright[5].
A copyright notice should contain: I the word “copyright” II A “©” in a circle III the name of either the author or the owner of all the copyright rights in the published work. For example Copyright ©2002 NID, means the work was published in the year of 2002 and the copyright belongs to NID[6]. As per Berne Convention (to which India is a signatory) for protection of literary and artistic works, use of copyright notice is optional. However, it is advisable to incorporate a copyright notice.
3.5 Rights of Copyright Owner
The Copyright owner is authorized to do the following:
1. To produce the work in a material form
2. To publish the work
3. To perform work in public
4. To produce, reproduce, perform or publish any translation of the work
5. To make any cinematograph film, or a record in respect of the work
6. To communicate the work by broadcast by radio, cable or satellite
7. To make any adaptation of the work
8. To do in relation to a translation or any adaptation of the work
Copyright provides a bundle of rights enjoyed by the original author and their heirs. They have exclusive rights to:
1. Make copies of the work
2. Make derivative work based on the original work
3. Distribute the work
4. Perform the work publicly
5. Display the work in a commercial setting
6. Prevent others from making unauthorized use of copyrighted work
3.6 Term of Copyright
In case of literary, dramatic, musical or artistic works, the term is lifetime of the author plus sixty years. In case of cinematograph films, records, photographs, posthumous publication, works of Government and international agencies, the term is sixty years from the date of publication. In case of broadcasting the term is of twenty-five years from the year in which the broadcast was made[7].
Assignment
Assignment of copyright has to be in writing and signed by the assignor or by his duly authorised agent[8]. Copyright is a multiple right, consisting of a bundle of different rights in the same work, which can be assigned or licensed either as a whole to one party or separately to different parties. For example, take any book say ““ONE WITH THE WINDE””- separate right exist in the same work – viz. reproduction in hard back and paperback edition, right of serial publication in a magazine, right of dramatic version or cinematograph version, translation, adaptation etc.
The deed of assignment must specify the `rights assigned’, the duration and territorial extent of assignment. When duration of assignment is not specified, it is presumed to be for five years and when territorial extent is not specified, it is presumed to extend within India (this presumption is applicable to assignments made after 1994).
An assignment of a Copyright is exempted from Stamp Duty[9]. In the Deed of Assignment, assigning copyright along with some other property say trademarks, it is advisable to state as to what part of consideration is towards the assignment of copyright.
Other rights
In addition to Copyrights, the Act also recognises moral rights of the author, which exist with the author even after assignment of the work. These rights are – to claim authorship of the work; and to restrain and claim damages in respect of any distortion, mutilation, modification or other act in relation to the work, which is done before the expiration of the term of copyright, if such distortion etc. would be prejudicial to his honour or reputation.
3.10 Extent of copyright protection
In case of a published work the copyright will subsists in India if, the work is published in India OR if the work is published outside India – the author at the time of publication (if alive at that date) or at the time of his death is citizen of India.
In case of an unpublished work, the copyright subsists in India if: The author at the time of making of work was a citizen or domicile of India. In case of architectural work, if work is located in India.
4. INDIAN PERSPECTIVE OF FAIR DEALING UNDER COPYRIGHT LAW
The doctrine of fair use or fair dealing is an integral part of copyright law[10]. It permits reproduction of the copyrighted work or use in a manner, which but for the exception carved out would have amounted to infringement of copyright. It has, thus, kept out the mischief of the copyright law[11]. The defence of fair dealing originated as an equitable doctrine allowing certain uses of literary works that copyright would otherwise have prohibited, if prohibiting such uses would stifle the very creativity which that law is designated to foster[12]. Fair dealing also serves as an answer to those “fair” copyright proponents who actively argue that copyright, not being a patent, is not an absolute right and should therefore be balance against user rights[13]. Indeed the fair dealing doctrine is “a key part of the social bargain at the heart of the copyright law, in which as a society we concede certain limited individual property rights to ensure the benefits of creativity to a living culture”[14].
India’s fair dealing doctrine, along with that of other former UK colonies, has been perceived as having the weak imperial import. Fair dealing, as found in the United Kingdom’s copyright framework has been widely characterized as restrictive, featuring an exhaustive list of defined exceptions[15]. In contrast to Indian and UK provision, which are traditionally applied only to a work used one of the closed list of enumerated purposes, fair use in the US allows any use of a work to be fair pursuant to a set of factors that aid in the decision making process. Apart from this, the US copyright code offers an open list of permissible purposes[16]. The US fair use defence is said to offer flexibility at the expense of certainty, fair dealing, on the other hand, is said to offer certainty but is very rigid[17].
Members of WTO are obliged to conform with the essential factors of exceptions to copyright as provided by the Berne Convention and Article 13 of the TRIPS agreement which lay down a 3 step test[18], i.e.; exception must be ‘special’; it must not conflict with normal exploitation and it must not be unreasonably prejudice the legitimate interests of rights holders. It is to be noted that even the TRIPS equations of fair dealing has been considered to be closely aligned with the US doctrine of fair use[19]. Therefore, the US doctrine fair use provision has been construed as the ‘fairest’ of all.[20]
4.1. Legislative context of fair dealing in India
In India, the doctrine of fair dealing is statutorily entrenched under Section 52 of the Indian Copyright Act, 1957. The English Copyright Act, 1842 was held to be applicable in India by the Bombay High Court in McMillan V. Khan Bahadur, even when the Act was not made expressly applicable to India.[21] In 1914, the Indian Legislature passed the Copyright Act 1914, which was essentially the extension of the British Copyright Act, 1911. The Indian Legislature; however had a very limited power of modification and addition.[22]
Fair dealing was first statutorily introduced in 1914 as a more duplication of section 2(1)(i) of the UK Copyright Act, 1911, providing that copyright would not be infringed by ‘any fair dealing with any work for the purposes of private study, research, criticism, review or news paper summary”.[23] The current Indian Copyright Act increased the scope of fair dealing and section 52 of the same Act has been amended thrice.
4.2. Raison D’etre
The Indian Copyright Act, 1957 amended the law prevailing before its enforcement and consolidates the law relating to copyrights. The statement of objects and reasons of the Indian Copyright act reflects the recognition that the new copyright regime in India was to be built on the bedrock of growing public consciousness of the rights and obligations of the authors. The new statute also sought to acclimatize the legislation to advances in technology and make the domestic copyright law consonant with India’s international obligations.[24]
Recently, the Delhi High Court, in the case of Chancellors Masters, has aptly summed up the policy behind the defence of fair dealing. The court held that fair dealing ‘….legitimizes the reproduction of the copyrightable work. Coupled with a limited copyright term, it guarantees not only a public pool of ideas and information, but also a vibrant public domain in expression, from which an individual can draw as well as replenish. Fair use provisions then must be interpreted so as to strike a balance between the exclusive rights granted to the copyright holder, and the often competing interest of enriching the public domain.
5. REMEDIES
The remedies for copyright infringement are:
a) Civil
b) Criminal, and
c) Administrative
It is only the first two remedies, namely civil and criminal, which are
of any real practical importance.
CIVIL REMEDIES:
The most importance civil remedy is the grant of interlocutory injunction since most actions start with an application for some interlocutory relief and in most cases the matter never goes beyond the interlocutory stage. The other civil remedies include damages – actual and conversion; rendition of accounts of profits and delivery up.
1) INTERLOCUTORY INJUCTIONS: The principles on which interlocutory injunctions should be granted were discussed in detail in the English case of American Cyanamid v Ethicon Ltd. (1975). After this case, it was believed that the classic requirements for the grant of interim injunction, namely,
a) Prima facie case
b) Balance of Convenience; and
c) Irreparable injury
2) PECUNIARY REMEDIES: Under Indian law, however, there is a departure made and the plaintiff, under sections 55 and 58, can seek recovery of all three remedies, namely (a) account of profits (b) compensatory damages and (c) conversion damages which are assessed on the basis of value of the article converted.
3) ANTON PILLER ORDERS: The Anton Pillar Order derives its name from a Court of Appeal decision in Anton Pillar AG V. Manufacturing Processes [1976]. An Anton Piller Order has the following elements:
a) An injunction restraining the defendant from dealing in the infringing goods or destroying, them;
b) An order that the plaintiffs solicitors be permitted to enter the premises of the defendants, search the same and take goods in their safe custody; and
c) An order that defendant be directed to disclose the names and addresses of suppliers and customers and also to file an affidavit will a specified time giving this information.
4) MAREVA INJUNCTION: Mareva Injunction is an order which temporarily freezes assets of a defendant thus preventing the defendant from frustrating the judgement by disposal of such assets.
5) NORWICH PHARMACAL ORDERS: These are orders by which information can be discovered from third parties.
B. CRIMINAL REMEDIES:
Criminal remedies for copyright violation include:
I. Punishment through imprisonment which, under Indian law, may not be less than six months but which may extend to three years;
II. Fines which, under Indian law, shall not be less than Rs.50.000. and which may extend to Rs.200, 000.
III. Search and seizure of the infringing goods including plates which are defined as including blocks, moulds, transfers, negatives, duplicating equipment or any other device used or intended to be used for printing or reproducing copies of the work.
IV. Delivery up of infringing copies or plates to the owner of the copyright.
6.CONCLUSION
A copyright infringement case should be approached as if it were a jigsaw puzzle. Your case’s factual, statutory, court-created and practically necessary puzzle pieces should be identified, addressed, and related to each other sooner rather than later. Plaintiff’s case can be
successful if the pieces fit, but a shambles if one does not. Fair dealing is an important concept in Indian Copyright law. However, despite its importance in the copyright regime and the importance in the copyright regime to advancement of technology, the concept remains unexplored in India.
Submitted by:
Kirti Bikram
L.L.M 2nd Yr
NALSAR University of Law,Hyderabad
[1]http://www.lawmart.com/searches/cp-circ1.htm
[2]http://books.google.co.in/books?id=y6mhbFjuOucC&pg=PA147&dq=conventions+dealing+with+copyright&source=web&ots=vO-XmVm&sig=Oc5_kbJvr6DwvZJBDpCR3oT-SY&hl=en#PPA148,M1
[3]Justice P.S.Narayana,”Intellectual Property Rights”, 3rd Ed., 2004.
[4] www.pressreleasepoint.com/copyright-infringement-and-its-remedies.
[5] http:/www.indiainbusiness.nic.in/investment/copyrights.htm
[6]http:/www.nid.edu/national institute of design
[7] http:/www.kipro.org/copyright.htm
[8]Section 19.
[9] Article 25 of Schedule I of the Bombay Stamp Act, 1958
[10] The Chancellors Masters and Scholars of the University of Oxford V. Narendra Publishing House and Ors. 2008(38) PTC 385(Del) at para 2
[11] S.K. Dutt V. Law Book Company & Ors., AIR 1954 All 570 at Para 12
[12] Harper and Row Publishers V Nation Enterprises, 471 US 539 at 550
[13] A.Giuseppina D’Agostino, Healing for Fair Dealing? A comparative copyright analysis of Canada’s fair dealing to UK fair dealing and US fair use, McGill law Journal 53 (2008) 309-363
[14]Association of video and filmmakers, documentary filmmaker’s statement of best practices in fair use (18 november 2005) at 1-2.
[15] Sing Jayakumar, Hansard Parliamentary debates, 78 (2004) 10.
[16]The US copyright code, 17 USC section 107 (2000) provides that the fair use of copyrighted work for purposes such as criticism, comment, news reporting, teaching(including multiple copies for classroom use), scholarship, or research’ does not infringe copyright.
[17] Justice Ladie, Copyright: Over-strength, over-regulated, European Intellectual Property Review, 18 (5) (1996) 253-260.
[18] Ficsor M, How much of What? Three step test and its application in recent WTO dispute settlement cases, RIDA, 192 (2002) 111-251.
[19] Gervais Daniel J, Canadian Copyright Law post-CCH, intellectual property journal, 18 (2004) 131-167.
[20]Nimmer david, Fairest of them all and other fairy tales of fair use, Law & Contemporary problems, 66 (2003)263-287.
[21] (1895) ILR Bom 557 in Lal, The Copyright Act, 3rd Edn (Law Publishers India, Allahabad), 1995, p.6.
[22] (1895) ILR Bom 557 in Lal, The Copyright Act, 3rd Edn (Law Publishers India, Allahabad), 1995, p.7-8.
[23] UK, 1 & 2 Geo V, Clause 46, section 2(1)(i), Burrell Robert, Reining in copyright law: Is fair use the answer? Intellectual Property Quaterly, 4 (2001) 361-388.
[24]Narayana P. Copyright and Industrial Designs, 3rd edn (Eastern Law House, Kolkata).