COPYRIGHT REGISTRATION: COPYRIGHT LAW & APPLICATION INDIA

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1 COPYRIGHT REGISTRATION: COPYRIGHT LAW & APPLICATION INDIA Copyright is a form of intellectual property protection granted to the creators of original works of authorship such as literary works (including computer programmes, tables and compilations), dramatic, musical and artistic works, cinematographic films and sound recordings. Copyright is the exclusive right to do certain Acts in relation to Artistic, Literary, Dramatic, Musical Work, Cinematographic Film and Sound Recording Software. Basically, Copyrights means the Right to Copy or reproduce the work in which Copyright sub-sites. The Copyright vests in original work in whatever form it may be i.e. Literary, Artistic, etc. The registration of Copyright in India is not mandatory but useful in courts where Civil and /or Criminal Proceeding can be taken to protect it. Shop and Establishment Act is one of the most important State Government regulations which governs the functioning of businesses engaged within its Jurisdiction. The Shop and Establishment license is a primary proof of existence of business in a specified jurisdiction. Copyright Registration in India gives the creators of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts, economic rights enabling them to control use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. It also gives moral rights to be identified as the creator of certain kinds of material and to object to its distortion or its mutilation. (Material protected by copyright is termed a "work".) However, copyright does not protect ideas, names or titles. The purpose of copyright law in India is to allow copyright registrants to gain economic rewards for their efforts and so encourage future creativity and the development of new material which benefits us all. Copyright material is usually the result of creative skill and/or significant labour and/or investment and without protection; it would often be very easy for others to exploit material without paying the creator. Most uses of copyright material therefore require permission from the copyright owner. However there are exceptions to copyright, so that some minor uses may not result in copyright infringements. Copyright protection is automatic as soon as there is a record in any form of the material that has been created. Under the Indian Copyright Act there is a provision to register copyright although this is voluntary. DIFFERENT TYPES OF WORK COVERED UNDER COPYRIGHT Dramatic and musical work (i.e. Drama, Skit, Play, Movie etc.)

2 Artistic work (i.e. Logo, monogram, design etc.) Software / Computer Programme Work of Architecture Cinematograph Film Sound Recording (i.e. A Cassette or a Record) Website, Web Contents, Home Page. WHY COPYRIGHT REGISTRATION IS ESSENTIAL? Copyright registration of the work is highly recommended; as registration is helpful in an infringement suit. As per the Copyright Act, the Register of copyrights (where the details of the work are entered on registration) is prima facie evidence in all courts. WHO OWNS COPYRIGHT IN A WORK? In India, the first owner of copyright in a work is the author. If the work is done in course of employment then employee is the first owner, unless there is an agreement to the contrary. Where the work includes material from different owners, or for example is a translation of an original work, several owners may each have copyright in the final work. No objection certificate or relevant transfer documents to be obtained from the employees or appointed designers. In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author. In the case of a film, the principal director and the film producer are joint authors and first owners of the economic rights and similar provisions as referred to above apply where the director is employed. In the case of a sound recording the record producer is the author and first owner of copyright; in the case of a broadcast, the broadcaster; and in case of a published edition, the publisher. Copyright is, however, a form of property which, like physical property, can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the first owner. In contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic works and film directors remain with the author or director or pass to his or her heirs on death. Copyright in material produced by a Government department belongs to the Government of India.

3 Copyright owners generally have the right to authorize or prohibit any of the following things in relation to their works: Copying of the work in any way e.g. photocopying / reproducing a printed page by handwriting, typing or scanning into a computer / taping live or recorded music. Issuing copies of the work to the public. Public delivery of lectures or speeches etc. Broadcasting of the work, audio / video or including it in a cable programme. Making an adaptation of the work such as by translating a literary or dramatic work, transcribing a musical work and converting a computer program into a different computer language or code. Copyright is infringed when any of the above acts are done without authorization, whether directly or indirectly and whether the whole or a substantial part of a work, unless what is done falls within the scope of exceptions to copyright permitting certain minor uses of material. There are a number of exceptions to copyright that allow limited use of copyright works without the permission of the copyright owner. For example, limited use of works may be possible for research and private study, criticism or review, reporting current events, judicial proceedings, teaching in schools and other educational establishments and not for profit playing of sound recordings. But if you are copying large amounts of material and/or making multiple copies then you may still need permission. Also where a copyright exception covers publication of excerpts from a copyright work, it is generally necessary to include an acknowledgement. Sometimes more than one exception may apply to the use you are thinking of. Exceptions to copyright do not generally give you rights to use copyright material; they just state that certain activities do not infringe copyright. So it is possible that an exception could be overridden by a contract you have signed limiting your ability to do things that would otherwise fall within the scope of an exception. It is important to remember that just buying or owning the original or a copy of a copyright work does not give you permission to use it the way you wish. For example, buying a copy of a book, CD, video, computer program etc does not necessarily give you the right to make copies (even for private use), play or show them in public. Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work. So, permission is generally needed. Also, use going beyond an agreed Licence will require further permission. RIGHTS OF A COPYRIGHT HOLDER ON REGISTRATION 1. Your logo, style, font, get-up, color, scheme of your brand name cannot be copied by any other business firm.

4 2. The registration certificate is valid for lifetime of the Proprietor of the brand name. 3. If the Copyrighted work is infringed it is a cognizable offence i.e. one can directly file a police complaint to stop the misuse of the work. 4. If the Copyright Registration is done, the complaint / civil suit can be filed at the place where the owner of the Copyright is situated. For Example: if you are situated at Mumbai and some other person is copying your brand name at, say New Delhi. You can file a case at Mumbai. The person who has infringed your brand name will have to appear at the court at Mumbai. To reproduce the work in any material form including the storing of it in any medium including electronic means. To perform the work in public, or communicate it to the public. To make any cinematograph film or sound recording in respect of the work. To make any translation of the work. In case of computer programme the rights also includes to sell or give on hire, any copy of the computer programme HOW TO PUBLICIZE MY CLAIM TO COPYRIGHT? All copyright work should be marked with the International Copyright symbol, All rights reserved or with the word Copyright, the name of the owner and the date or year the work was created, thus: BMC All rights reserved WHAT IS THE TERM DURATION OF COPYRIGHT PROTECTION? The term of copyright varies according to the nature of work and whether the author is a natural or legal person (e.g.: Company). In the case of literary, dramatic, musical or artistic work (other than a photograph), when published during the lifetime of the author, copyright subsists during the lifetime of the author, plus sixty years. In the case of photographs, cinematograph films and sounds recordings; the term is sixty years from the date of publication. When the first owner of copyright is the government or a public undertaking, the term of copyright is sixty years from the date of publication. THE REMEDIES AVAILABLE TO THE OWNER FOR COPYRIGHT INFRINGEMENT- COURTS ARE EMPOWERED TO GRANT THE FOLLOWING RELIEF IN CASE OF INFRINGEMENT OF COPYRIGHT:

5 Temporary and permanent injunction (Prohibition to continue the act of infringement). Impounding and destruction of all infringing copies. Actual monetary damages plus the infringer s profits. Statutory Costs - Court charges and reasonable attorneys fees. The Court trying any offence, under the Copyright Act may, whether the alleged offender is convicted or not, order that all copies of the work in the possession of the alleged offender, which appear to be infringing copies be delivered up to the owner of copyright. In addition to civil remedy, the Copyright Act enables the owner of a copyright to take criminal proceedings against the infringer. The offence of infringement of copyright is punishable with imprisonment which may extend from a minimum period of six months to a maximum period of three years and a fine of Rs 50,000 to Rs 2 lakh. PROCEDURE OF REGISTRATION OF COPYRIGHT FOR SERVICE INDUSTRIES : 1. To apply for search to ascertain, whether any work is on record which is similar to your artistic work 2. If the search is positive, procuring the required documents for application 3. Preparation of Power of Attorney on stamp paper 4. Application for Registration and along with copies of the work 5. Attending to the proceedings and obtaining Provisional Papers after necessary follow up FOR OTHER THAN SERVICE INDUSTRIES : 1. Prior application for Trademark Registration is mandatory for Copyright Registration 2. To apply for search to ascertain, whether any work is on record which is similar to your artistic work 3. If the search is positive, procuring the required documents for application 4. Preparation of Power of Attorney on stamp paper 5. Preparation of Power of Attorney on stamp paper 6. Preparation of Power of Attorney on stamp paper REQUIREMENTS FOR MAKING COPYRIGHT APPLICATION Full Name, Address and Nationality of applicant (s) & that of author

6 The year & country of first publication of the work List of Countries where the work has been published & the year of publication The year & The Country of last publication Six copies of the work Power of Attorney COPYRIGHTS - FREQUENTLY ASKED QUESTIONS Q: What are the different types of work covered under copyright? A: Copyright Covers. i) Literary, dramatic and musical work. ii) Artistic work. iii) Cinematographic film includes sound track and video film. iv) Computer programmes/software. Q: What are the rights of a copyright holder (which when violated lead to infringement? A: (a) The rights of copyright holder are i) to reproduce the work in any material form including the storing of it in any medium by electronic means. ii) to issue copies of the work to the public not being copies already in circulation. iii) to perform the work in public, or communicate it to the public. iv) to make any cinematograph film or sound recording in respect of the work v) to make any translation of the work vi) to make any adaptation of the work b) In case of computer programme the rights also includes - i) to sell or give on hire, or offer for sale or hire any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions. Q: What is the term of a copyright? A: a) 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. Q: What is the rule for the transfer of copyright? A: The owner of the copyright in an existing work or prospective owner of the copyright in a future work may assign to any

7 person the copyright, either wholly or partially in the following manner: i) for the entire world or for a specific country or territory; or ii) for the full term of copyright or part thereof; or iii) relating to all the rights comprising the copyright or only part of such rights. Q: What notice needs to be put on a work to Seek copyright protection? A: 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. Q: Is it necessary to deposit computer program for which copyright is being sought? A: Documentation which normally accompanies the program is regarded as separate work and for this reason if the same has to be registered, it must be separately registered and not combined with the computer program in a single application. Q: If an employee in a company develops a program, would this employee own the copyright? A: No. In the case of a program made in the course of 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. Q: If an independent third party develops a program for a company, who owns the copyright? A: Works created by third parties on commission do not automatically vest the copyright in the commissioning party. If the third party is an independent contractor, it is essential for the commissioning party to obtain the copyright through a written deed of assignment. It is a common misconception that the copyright automatically belongs to the commissioning party. Thus, it is only where the developer is an employee creating the work under a contract of service that the rights belong to the employer. Q: Is there a possibility of divulging trade secrets through deposit of source Code? A: Although the Copyright Office has procedures designed to protect trade secrets but once the Copyright is registered, the work is open to public inspection. For this reason, it is advisable, only to file a small extract of the computer program rather

8 than the full program itself. It is important however to know that the part of the computer program which is not being filed would remain the trade secret of the owner and can be subject matter of a protection against any person who wrongfully obtains and utilizes the said program. Q: In some of the programs, the screens could be the most commercially Significant aspect, Is it necessary to register the program screen separately from the underlying code? A: Generally, all copyrightable expressions embodied in a computer program, including screen displays, are protectable. However, unlike a computer program which is a literary work, screen displays are artistic works and cannot therefore be registered in the same application as that covering the computer program. A separate application giving graphic representations of all copyrightable elements of the screen display is necessary.