Copyright: An important element of Intellectual Property Rights

Copyright: An important element of Intellectual Property Rights

Abstract:

When Intellectual Property Rights (IPR) are put on the market, they have their own economic value. IPR gives intellectual property ownership rights and is inherently intangible. For its worthy creation or invention, IPR grants the inventor or creator exclusive rights. IPR’s main goal is to safeguard and reward the invention for its creativity. IPR encourages and encourages talented creators to be created.

Any commercially used invention, unique name, emblem, logo, or design is considered intellectual property. One of the most common forms of intellectual property is copyright. In India, the Copyright Act of 1957 offers copyright protection, which is divided into two categories: economic rights of the author and moral rights of the author. This article discusses intellectual property classification, copyrights and associated rights, copyright length, and a few examples of copyright infringement.

Introduction:

It is important to be ahead of the curve in terms of technology, developments, and trade in today’s globalised world. India is well-known for its technical prowess in fields such as software engineering, satellite technology, Moon, Mars, and Jupiter missions, among others. India, on the other hand, lags behind in terms of filing patents, manufacturing designs, trademarks, and copyrights. This is a very concerning situation for India, as the growth of every society is inextricably linked to intellectual property rights and policy frameworks.

The key cause of this condition may be a lack of knowledge of intellectual property rights. In light of this, India took a significant move forward in 1995 by signing the World Trade Organization’s Trade Related Intellectual Property Rights (TRIPS) Agreement (WTO). The TRIPS agreement has established itself as the global structure for intellectual property rights. The TRIPS agreement is critical in settling intellectual property disputes. TRIPS clauses must be included in all WTO members’ domestic intellectual property laws.

In the last fifteen years, India has increased its presence in the international patent system as a result of this campaign. In 2018, India filed 1583 foreign patent applications with the World Intellectual Property Organization (WIPO), with the highest growth rate (27%) among countries in terms of patent applications.

Intellectual Property and their Classification:

The word “intellectual property” gained popularity after the World Intellectual Property Organization (WIPO) was founded in 1967 [1]. In 1974, WIPO becomes one of the United Nations’ departments. WIPO’s main goal is to establish a fair and open international intellectual property scheme, as well as to govern various IPR policies around the world.

Intellectual Property (IP) is described by the World Intellectual Property Organization (WIPO) as “mind creations such as invention, literary and artistic work, designs, symbols, titles, and pictures.” IP is legally protected, allowing people to be recognised for their inventions or creations and to profit from them.

Intellectual Property is Classified into Six types:

1. Patent

Patent is an exclusive right granted to inventor by concerned government office for his/her novel technical invention [2]. The patent owner must make his or her invention freely accessible in return for this privilege. With the permission of the patent owner, others may use the invention. To be eligible for a patent, an invention must meet three key criteria: utility, novelty, and non-obviousness. The patent act explains the meaning of each of these words. Frivolous innovations, inventions against natural rules, inventions that are not fair to human, plant, or environmental health, and inventions related to atomic energy are not patentable, according to Section 3 of the Indian Patent Act 1970 [3]. According to the Indian Patent Act of 1970, every patent has a 20-year initial term.

2. Trademark

Trademark is already in use from ancient world. A trademark can be a sign or logo which distinguishes the goods or services of one enterprise from other enterprises. Trademark helps company to make their recognition, reputation amongst the customers. Most of the times, customers rely on trademark and buy products without inspecting its quality [4-5].

According to the UK Trademarks Act of 1994, there are some requirements for trademark registration. Any mark that is distinctive and capable of distinguishing products and services can be registered as a trademark under the Indian trademark act [6]. The initial period of trademark registration in India is ten years, after which it must be renewed on a regular basis.

3. Geographical Indications (GI)

Certain agricultural products have unique characteristics that are influenced by the climate or soil in which they are grown. Such items are eligible for GI registration. The word “geographic indication” (GI) is described by the World Intellectual Property Organization (WIPO) as “all existing means of protecting names, symbols, or position as a product’s origin” [7]. Havana, Darjeeling tea, Arabian horses, Alphanso mangos, Nagpur oranges, Basmati rice, and other GI products are well-known. In India, GIs can be registered in Chennai under the Act 1999 and Rules 2001. The term of GI is ten years, after which it must be renewed.

4. Industrial designs

According to WIPO, an industrial design can comprise of ornament or aesthetic aspect of an article. Design may consist of three dimensional features such as shape or surface of an article or two dimensional features such as patterns or lines or color. Layout design of semiconductor integrated design is one of the examples of industrial design which can be registered. Indian Semiconductor Integrated Circuits Layout Design (SICLD) Act 2000 protects an electronic industry design which is in compliance with TRIPS agreement [8]. This act allows for the registration of any layout that is unique and original for a period of ten years. The Department of Information Technology, which is part of the Ministry of Information Technology, was in charge of putting this law into effect.

5. Trade Secrets

Trade secrets are Intellectual Property Rights on confidential information which may sold or licensed. Any invention which is not patentable but useful for business and provide financial benefits can be kept as trade secret. Any commercial information or secrete in the form of any data compliance or data bases, financial information, or any technical information or method such as a recipe, concept, software, formulas, charts, or any commercial information or secrete in the form of any data compliance or data bases can be kept as a trade secret. However, developing a trade secret takes years of research and expertise. Coca-formula Cola’s is a well-known example of a trade secret. Trade secrets are governed differently in different countries. Under common law, TRIPS recognises trade secrets.

6. Copyright

Copyright protects the rights of creators for his/her own literary and artistic works. The term copyright refers to the ‘Right to Copy’ which is available only to the author or the creator. Thus, any other person who copies the original work is treated as an infringement under Copyright Act. Copyright protects the expression of an idea and not the content or idea as such. The idea is protected under the Patent law and not under Copyright Act.

Under Copyright, following literary and artistic works are covered [9]:

• Musical work: songs, choruses, solos, band, orchestras etc.
• Artistic works: painting, drawings, sculpture, architecture, advertisements etc.
• Photographic work: landscapes, fashion or event photograph, portraits etc.
• Motion pictures: films, drama, documentary, television broadcasting, video tape, DVDs.
• Computer programs: Computer programmes, software and their related databases etc.

In India, Intellectual Property is governed under the Patent Act 1970, Trademarks Act 1999, Copyright Act 1957, Designs Act 2001 etc.

History of Copyright Act in India

The law of Copyright was spread in India over three phases. In 1911, during the rule of the British, the statute was enacted. In 1914, the second section of the legislation was enacted. It was identical to the Copyright Act of 1911 in the United Kingdom. The criminal penalty for infringement was a major change in this act. The legislation was continuously revised after that, and in 1957, an independent India adopted the third phase of the law, which included the provisions of the Berne Convention. The Copyright Act of 1957 is still in effect in India.
Copyright is only valid within India’s boundaries, according to the Indian Copyright Act 1957. India has concluded agreements with the Berne Convention for the Protection of Literary and Creative Works, the Universal Copyright Convention, the Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties, and TRIPs to ensure copyright protection in other countries. Since 1995, India’s intellectual property regime has undergone numerous changes.

Copyright and related rights

After completing a high-quality piece of work, the copyright is automatically granted. As a result, copyright registration is not needed. The author, on the other hand, profits greatly from copyright registration. Copyright should provide evidence to show that copyright exists and that the author is the rightful owner.

The owner of the Copyright has following rights:

• Right of Reproduction
  • Copyright holders have the ability to reproduce their work. Without the permission of the copyright owner, no one other than the author can make copies of the work or parts of the work in any form.
• Right of Communication
  • Communication to the public entails making any work accessible to the public under the author’s copyright. If a work is protected by the copyright act, it cannot be made available to the public without the author’s permission.
• Right of Adaption
  • The planning of new work in a particular manner based on existing work is known as adaptation, modifications, or alterations. The Copyright Act describes adaptation as the transformation of a dramatic work into a non-dramatic work, the transformation of a literary or artistic work into a dramatic work, the rearrangement of a literary or dramatic work, the transcription of a musical work, or any other act involving the rearrangement or modification of an existing work. Only a concept is taken in accordance with this right, and then adjustments are made in accordance with the specifications. Films based on Chetan Bhagat’s novels Five Point Someone and Half Girlfriend, for example, have been made. Here, idea from the book is taken and not the whole expression is copied.
• Right of Translation
  • The owner has complete control over the translation of his work into other languages. Any other person who does so without the owner’s permission is infringing on the privilege. Before translating a copyrighted work, the person interested in doing so should obtain permission from the owner.
• Moral Rights
  • Moral rights are only granted to individual writers, and they are often linked to economic rights in many countries. The right to assert authorship of a work and the right to object to any distortion or altering of a work were also protected by moral rights. And after the copyright is assigned, he retains moral rights.

According to the Indian Copyright Act 1957, other rights related to various types of copyright stated in handbook [10] are as follows:

• Rights in dramatic and artistic work
  • Exclusive rights to reproduce, contact, or perform the work in public, to issue copies of the work to the public, to include the work in any cinematograph film, and to make any adaptation of the work are all included in the copyright to dramatic or creative work.
• Rights in musical work
  • The exclusive rights to reproduce, give copies to the public, include the work in any cinematograph film or sound recording in respect of the work, and make any adaptation and translation of the work are all examples of copyright of musical works.
• Rights in sound recording
  • Copyright of a sound recording refers to the ability to produce some other sound recording that incorporates it, to sell or rent a copy of the sound recording, and to communicate the sound recording to the public.

Registration Procedure for Copyrights

Copyrights automatically come into existence as soon as the work is created. However, if the job is registered, the owner receives financial benefits. The Department of Education’s Copyright Office, located on Kasturba Gandhi Marg in New Delhi, is where copyrights are registered. In a court of law, the entries made in the Register of Copyrights serve as prima facie proof.

According to the Chapter VI of the Copyright Rules, 1956, as amended, the procedure for the registration of a work is as follows:

I. Application for registration is to be made on form IV.
II. Separate application should be made for registration of each work.
III. Each application should be accompanied by the prescribed fees as mentioned in the rules.
IV. The claimant, Power of Attorney, or the advocate in whose favour a Vakalatnama has been issued, must sign the application. The Power of Attorney should be sealed, signed by the party and approved by the advocate.

In the future, each column of the Statement of Particulars should be addressed. The application must be accompanied by a copy of the manuscript. The cost of copyright registration varies from Rs. 400 to Rs. 600 per work. India protects the copyrights of works from the countries listed in the International Copyright Order.

Copyrights of the countries who are the members of the Berne Convention for the protection of Literary and Artistic works, Universal Copyright Convention and TRIPS agreement are protected in India. Copyright provided by the Indian Copyright Act is valid only within the borders of the country.

India has joined the Berne Convention for the Protection of Literary and Artistic Works, the Universal Copyright Convention, the Convention for the Protection of Manufacturers of Phonograms against Unauthorized Duplication of their Phonograms, and the Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties and Trade Related Matters to ensure that Indian works are protected in foreign countries.

Duration of Copyrights

Copyright is given for a term of 60 years as a general law. The 60-year cycle begins the year after the author’s death in the case of original literary, dramatic, musical, and artistic works. The 60-year cycle begins on the date of publication for cinematograph films, sound recordings, photos, posthumous publications, anonymous and pseudonymous publications, works of government, and works of international organisations.

Infringements

It’s worth noting that Copyright only protects originality, not novelty. Only the word, not the concept, is protected by copyright. As a result, it cannot be covered if it is the only means of communicating the job. Copyright infringement is described as profiting financially from a copyrighted work without the owner’s permission.

Some of the commonly known acts involving infringement of copyright are:

• making infringing copies for sale
• permitting any place for the performance of works in public
• distributing infringing copies for the purpose of trade
• public exhibition of infringing copies by the way of trade
• importation of infringing copies into India.

Proof of Copyright ownership or proof that the infringer copied the copyrighted work are essential elements of any infringement event. If the owner can show that the work has already been patented under the act, the minimum penalty for infringement is six months in jail and a fine of Rs. 50,000. The person can be held responsible under the Copyright Act if he proves that it was done innocently or even accidentally. The offender’s guilty intent should be taken into account when deciding the amount of damages to be awarded for the alleged infringement.

Recent Cases of Infringements

Top two cases of infringements of India during 2019 are discussed below:

Case 1: Sajeev Pillai v. VenuKunnapalli & Anr [11]

Issue: Whether the author of a work even after assignment of work will have special rights to claim authorship of his work provided under Section 57(1) of the Copyright Act?

Facts: The appellant, Sajeev Pillai, a film director and a script writer claimed to have researched the history of the grand festival Mamankam and prepared a script for a movie based on the same epic. He met VenuKunnapalli and signed a MoU with Kavya Film Company which was associated with Kunnapalli. Sajeev was initially appointed as the director but then his service was terminated and was replaced by someone else. The shooting of the movie was thereafter completed which Sajeev alleged was done by mutilating, distorting and modifying his script. Sajeev in light of that filed a suit seeking various reliefs. An interim injunction application was also filed to restrain the respondents from releasing, publishing, distributing and exploiting the film and issuing pre-release publicity without providing adequate authorship credits to Pillai as per film industry standards.

Judgement: In deciding the issue, the court noted that the first sub-section of Section 57(1) provides the author to restrain third parties and the second sub-section provides the author the entitlement to claim damages by such third party in respect of any distortion, mutilation or other modifications to his work or any other action, in relation thereto which would be prejudicial to his honour or reputation. This provided the appellant an unparalleled advantage in the case and that his assignment of the work would not exhaust the legal right to claim authorship over it.

Case 2 : Tips Industries v Wynk Music [12]

Issue: Whether there exists a statutory licensing scheme under the Copyright Act to online streaming services?

Facts: Tips Industries Ltd (Plaintiff) is an Indian music label that exercises copyright over a significant music repository that, in 2016, granted Wynk Music Ltd (Defendant) license to access this music repository. At the expiry of the said license both the parties attempted to renegotiate the licensing conditions but failed to do so and hence Wynk took refuge by invoking Section 31D of the Copyright Act. Tips challenged Wynk’s invocation of Section 31D, and prosecuted Wynk pursuant to Section 14(1)(e) for breach of their exclusive rights of sound recording.

Judgement: After hearing the contentions of both the parties the Bombay High Court came to a conclusion finding Wynk to be guilty of direct infringement on two counts €“ 1. To offer the copyrighted work under section 14(1) (e) (ii) which allowed the users to download and listen to the plaintiff’s work offline and 2. Under section 14(1) (e) (iii) for communicating the plaintiff’s works to the users via their streaming service.

Conclusion:

Intellectual Property Rights are extremely significant in developing countries like India, and they play a critical role in societal growth. More patents, copyrights, trademarks, and geographical indications should be filed or licenced globally in order to advance and compete with developing countries. As a result, it is important to raise public consciousness about intellectual property rights. IPR can be taught in schools, and IPR registration can be encouraged by rewarding innovators and developers.

Copyright is a crucial component of intellectual property rights. Artists, poets, and musicians should be encouraged to record their work. According to the Copyright Act 1957, the Copyright registration process in India is very easy at the reasonable fees.

For monetary gain, the owner of copyrighted material may grant a licence and pass some of the rights to another person. However, there are several problems with non-profits and the Copyright Act that will be addressed in future blogs.

Author: Naiya Kothari,
Navrachna University, 5th year BBA-LLB