Copyright

What is Copyright?

Copyright is an intellectual property right that grants the holder an exclusive right over their creations. It is a bundle of rights, providing rights of reproduction, communication to the public, adaptation and translation of the work. Copyright safeguards the creation of an author, ensuring that they are rewarded and protected. It is essential to maintain the flow of creativity in a society.

What is the ‘Copyright Office’?

The Copyright Office is established under Section 9(1) of the Copyright Act, 1957. It was established to undertake the registration of copyrights. The Copyright Office is under the immediate control of a Registrar of Copyrights who is appointed by the Central Government and acts under the superintendence and directions of the Central Government.

Relevant Legal Provisions

Official Definition of Copyright

‘Copyright’ as defined in the Copyright Act, 1957 protects original literary, dramatic, musical and artistic works, and sound recordings. It does not protect ideas but their expression which is known as ‘idea-expression distinction’.

Eligibility Criteria for Copyright

The most crucial requirement for copyright is originality which means that the work must originate from the author due to his skills and labor and shall not be a copy of someone else’s work. Additionally, the work must be in tangible form and should not be an idea. This comes in compliance with Article 9(2) of Trade Intellectual Property Rights (TRIPS) which states that copyright should not subsist in ideas.

Statutory Exclusions on Copyright

As specified above, copyright is not granted to ideas and intangible goods. Copyright does not usually protect titles, names, factual information, short word combinations, methods, or slogans. However, the method of presentation might qualify it for copyright. Judicial decisions are a part of the public domain, thus, they cannot be subject to copyright. However, headnotes and editorial notes accompanying judgments are treated as original literary works protected under copyright law. A cinematograph film loses copyright protection if a substantial portion infringes upon another copyrighted work. The same stands true for sound recordings derived from literary, dramatic, or musical works. They are not awarded copyright if they infringe on the copyright of the original.  In the case of architecture, copyright safeguards the artistic design elements but does not cover construction methods or techniques.

Types of Works which qualify for Copyright Protection:

There exists an exhaustive list of categories that are protected under the copyright regime, including literary, dramatic, musical, and artistic works, cinematograph films, and sound recordings. However, the definitions of these categories are broad and inclusive.

Literary Works:

A literary work is given a broad definition, encompassing traditional literature to computer programs, including databases.

Dramatic works

Dramatic works include any piece of recitation, choreographic work, entertainment in a dumb show, and scenic arrangement or an acting form that is fixed in writing or otherwise.

Artistic Works

The definition includes a painting, a sculpture, a drawing, including a diagram, map, chart or plan, an engraving, or photograph irrespective of their respective artistic quality. Further, any work of architecture and artistic craftsmanship also qualifies for copyright.

Cinematograph Films

Under cinematograph films, sound recording along with visual recording or any work produced by any process analogous to cinematography is considered a part of the category.

Musical Works

Musical works mean a work consisting of music and includes any graphical notation of such work, however, it does not include any words or action intended to be sung, spoken or performed with the music.

Sound Recordings

Sound recordings include the recordings of sounds, regardless of the medium in which such recording is made or the method used to produce such recordings.

Rights given to Copyrighted Material

The Act clearly lays  down and authorizes different rights for various categories of works which are as follows:

For literary, dramatic, or musical works (other than a computer program which is a literary work)

The owner of the copyright may, inter alia, prevent acts including reproduction in any material form of the work itself, such as printing and interactive digital media (including storage); issuing copies of the work to the public not previously exhausted; performing the work in public or communicating it to the public; making cinematograph film or sound recording of it; and doing any of these acts in relation to an adaptation or translation of the work.

For computer programs:

In addition to rights given to literary works, the rights holders are allowed to prohibit or restrict the sale, rental, or commercial offering of copies of the program, where the rental is made through a terminal equipped for duplication and is directly related to the original copy of the computer program.

For artistic works

The right holders can restrict reproducing the work in any material form (including electronic storage), creating a three-dimensional representation of a two-dimensional work (or vice versa), issuing copies to the public if not already circulated, performing or communicating the work publicly, creating a cinematograph film based on the work, making adaptations, or performing any of these actions with respect to an adaptation of the work.

For cinematograph films

The right holders may restrict activities such as making copies of the film, including photographs of any image that forms part of it, storing such copies in any medium by electronic or other means, selling or offering the film for sale or commercial rental, and screening the film to the public.

For sound recordings

The restricted acts include the creation of other sound recordings involving the original, storage of the recording in any medium by electronic or other means, offering copies for commercial sale or rental and communicating the recording to the public.

In addition to the above stated economic rights, there exists a bundle of non-economic rights known as moral rights. These rights allow the author to protect their creation from any distortion, mutilation, modification or degradation. Moral rights include the right of paternity, right to integrity and are given solely to authors.

Copyright Licensing

In India, a license is a permission granted by a copyright owner to an individual or organization to use their work in ways that would otherwise be considered infringement. The licensing of copyrights is governed by Chapter 6 of the Copyright Act, 1957. The assignment, transfer, or granting of rights under copyright at the owner's death may occur either in whole or in part to legal heirs. Licenses can be exclusive or non-exclusive and can exist for existing works or future ones.

There are primarily two kinds of licenses in Indian copyright law:

1. Voluntary License

Section 30 states that a copyright owner can enter into a licence in writing signed either by him or any authorised agent. Licenses relating to future works are deemed effective only on the birth of the work. The voluntary license should also clearly provide the rights granted and territorial jurisdiction, royalty rate, and terms for the change, extension, or revocation. There are exclusive, non-exclusive, co-exclusive, sole, and implied licenses among such subtypes.

2. Statutory License:

Section 31 provides a compulsory license where the copyright owner will not publish or perform a published work in public. The Copyright Board may issue a compulsory license so that "Indian works" are not withheld from the public. Compulsory licenses provide access under reasonable terms, with some variations depending on the country and the treaty from which it stems such as the TRIPS Agreement. The licensing procedure in India involves negotiation between the copyright owner and the licensee, drafting a written agreement that defines the scope, term, territory, and royalty, and final execution with signatures from both parties. If the rights are assigned, the agreement must be registered with the Copyright Office, and fees must be paid.

Copyright Application

Copyright is automatically granted and there does not arise a need to register to acquire a copyright. However, arrangements exist for registration in the Register of Copyrights which is maintained by the Copyright Office. The entries made in the Register of Copyright are prima-facie evidence in the courts. The Register contains the name of the work, addresses of the author, publishers, and owners of copyright, and other such particulars as prescribed.

Process of Copyright Registration

The application of the author, publisher, owner, or any other party having an interest in registering a copyright can be entered into the Register of Copyrights by providing details of the work with the Registrar of Copyrights. For artistic works, the application should carry a declaration to the effect that no trademark that is identical or nearly similar to the artistic work has been registered or applied for under the Trade Marks Act by any other person except the applicant. This declaration shall be accompanied by a certificate issued by the Registrar of Trademarks. After submitting the application, a 30-day period is kept open for any third-party objections.

If no objections are received, the application is considered by an Examiner. If any discrepancy is found, a notice is sent to the applicant. The applicant is given 30 days to respond to the notice. Depending on the response from the applicant, the Registrar is allowed to either approve the application or schedule a hearing if the reply is unsatisfactory. If no discrepancies are found, the application proceeds to registration.

The Register of Copyrights serves as a prima facie evidence of the particulars entered therein. Certified copies or extracts from the register, signed by the Registrar, are construed as evidence in any court without further proof or the original document.

Stages of Copyright Application

There are mainly four steps of Copyright Registration in India including filing the application, objection process, examination and registration. During this process, there are many stages where the applicant may face rejection.

Application Stage

In the Application stage, applicants who are eligible to register for copyright can submit an application either physically at the Copyright Office, via registered/speed post, or electronically through the official website. Every application is for one work and must be accompanied by the fee payable under the Second Schedule of the Copyright Rules, 2013. It can be made by a demand draft drawn upon a scheduled bank or an Indian Postal Order payable to the "Registrar of Copyrights" at New Delhi, or by electronic payment. Form XIV is the application form for registration of copyright and Form XV is used to alter the copyright particulars.

Objection Stage

At the Objection stage, the applicant may need to respond adequately with respect to clarifications or additional information to clear objections. The resolution of objections generally ends within one to three months.

Examination Stage

During the Examination stage, a diary number is allotted after filing of the application and there is a waiting period of 30 days during which objections may be made. In case an objection is filed, both the parties are provided with a hearing by the Registrar of Copyright. The decision so made scrutinizes the application; 30 days are granted for rectifying discrepancies. Discrepancies left unattended attract rejection, along with a letter of rejection sent to the applicant.

Registration Stage

At the Registration stage, the Registrar may demand for further documents. When the Registrar has satisfied him or herself of the correctness of the claim, he records particulars in the Register of Copyrights, and a certificate of registration is issued. Registration is accomplished when the applicant receives a signed copy of the register entries.

Term of Copyright

The duration of copyright protection varies depending on the type of work. The differential time period for protection is as follows:

1. Literary, dramatic, musical, and artistic works – the life of the author plus 60 years from the beginning of the calendar year, which follows the year in which the author dies.
2. Cinematograph films – 60 years from the beginning of the calendar year, which follows the year in which the cinematograph film was published.
3. Sound recording – 60 years from the beginning of the calendar year which follows the year in which the sound recording was published.

Exception to Infringement

Activities that come under the doctrine of fair dealing for private or personal use do not constitute copyright infringement. These activities include research, criticism or review, reporting of current events, use in judicial proceedings or its reporting, public reading or recitation of reasonable extracts from published literary or dramatic works, and electronic storage of works by non-commercial libraries for preservation when they have a non-electronic copy of a work already existent.

In addition to these exceptions, several defenses can be raised against a copyright infringement claim. These include questioning the subsistence of copyright by challenging the originality of the work, claiming originality by demonstrating that the defendant developed the work without access to the Plaintiff's creation, challenging the right of the plaintiff to sue by raising a preliminary objection on the maintainability of the suit, or pleading limitation (which is three years) arguing that the suit or complaint is time-barred. Further, lack of knowledge of infringement can also be claimed, where in civil cases, if the defendant can prove they were unaware and had no reasonable grounds to believe the work was copyrighted, the plaintiff is only entitled to an injunction and possibly a share of the profits from infringing sales, as the court may deem appropriate. In the case of crimes, if the infringement was not for commercial benefit, penalties for fines or imprisonment may be diminished.

Remedies for Infringement

The Copyright Act, 1957 provides civil, criminal, and administrative remedies for copyright infringement.

Civil Remedies

Civil remedies include interlocutory injunction and pecuniary damages. An interlocutory injunction is an order made at an interim stage during the trial which compels or prevents a party from doing certain acts pending the final determination of the case. In order to acquire interlocutory injunction, three prerequisites must be fulfilled- establish a prima facie case, the convenience needs to be balanced and lastly, an evidence of irreparable injury must be proved.

A Mareva Injunction is granted if there is an apprehension that the defendant may frustrate the court order. It forces the defendant to have his assets rest in the custody of the court to avoid their destruction. The courts also give options for pecuniary damages: account for profits acquired over the infringement period, compensatory damages calculated at actual losses sustained, or damages for conversion and the value of what was taken.

Criminal Remedies

When an individual intentionally infringes or abets copyright infringement, they are liable for an imprisonment of 6 months which may extend to three years and fine of fifty thousand but which may extend to two lakhs. Further, for the habitual offenders, the minimum given imprisonment term is one year which can be extended to three years. This is accompanied with a fine of Rs 1 lakhs.

Administrative Remedies

The administrative remedies include the option of approaching the Registrar of Copyrights to prohibit the import of infringing copies into India when copyright infringement occurs through importation. Such remedies also include the request for delivery of confiscated infringing copies to the copyright owner.

Official Reports

Annual Report on Intellectual Property 2022-23

The report shows that during the year 2022-23, a total of 29,466 applications were received. Out of this, a total number of 12,082 applications were given the Register of Certificates (ROC). The table signifies an abrupt decline in ROC generation in 2022-23 because since the last few years, registrations were on a rise.

Moreover, in the year 2022-23, the literary/dramatic category received the highest number of Registration of Copyright with 7,267 registrations while the music category received only 35 ROC. The report also shows that the online filing of copyright applications constitutes 96% of the total applications.