What is Copyright?

Copyright is concerned with protecting literary, artistic or scientific work of the human intellect. These include books, wallpapers, pamphlets, catalogues, maps, guides and other writings, music, works of the fine arts such as paintings and sculptures, lectures, addresses, and works of like nature, Dramatic, dramatic musical works, Chronographic works, dumb show, Musical composition, Architecture, sculpture, drawings, engravings, lithographic, phonographic works, Translations, adaptations and technology based works such as computer programs and electronic databases.

Copyright is based on the concepts of originality and reproduction of the work in any material form. Therefore the main criterion for the protection of a work under copyright laws is that it should beoriginal (Not copied). Accordingly copyright laws confers the exclusive right to the owner of the “original” literary, artistic or scientific work to use or authorize others to use it for its reproduction, public performance, translation and adaptation. It is to be noted that copyright protects a work that is the expression of thought based on some idea, and not for the idea as such. For example if I have the idea of painting “sunset over the sea”, anyone else can use the same idea, which is not protected. But when I actually produce my painting of “sunset over the sea” the painting itself is expression, and that is protected.

Copyright provides a bundle of rights. The most typical are the following: the right to copy or otherwise reproduce any kind of work; the right to distribute copies to the public; the right to rent copies of at least certain categories of works (such as computer programs and audiovisual works); the right to make sound recordings of the performances of literary and musical works; the right to perform in public, particularly musical, dramatic or audiovisual works; the right to communicate to the public by cable or otherwise the performances of such works and, particularly, to broadcast, by radio, television or other wireless means, any kind of work; the right to translate literary works; the right to rent, particularly, audiovisual works, works embodied in phonograms and computer programs; the right to adapt any kind of work and particularly the right to make audiovisual works thereof.

Copyright is a protection that covers published and unpublished literary, scientific and artistic works, musical work, cinematographic films, software etc. Whatever be the form of expression, such works should be fixed in a tangible or material form. This means that if you can see it, hear it and/or touch it – it may be protected.

Originality:

Originality in relation to a work means that it is the author’s own creation and is not copied totally or essentially from another work. Originality is required by copyright law for the composition of the contents as well as the form of their expression , but not in relation to mere ideas, information or methods embodied in the work. Originality is not to be confused with novelty: the pre-existence of a similar work unknown to the author does not affect the originality of an independent creation. In the case of a derivative work, originality resides in the individual method of adaptation of the pre-existing work as referred to, among others, in Article 9 of the Mexican Law.

The requirement of originality as a condition of copyright protection is expressed in many national copyright laws by qualifying protectible works as “original”. This sense of the attribute “original” should not be confused with the meaning of the term when used to oppose original works as pre-existing works to derivative works.

LITERARY, ARTISTIC, MUSICAL AND SCIETIFIC WORKS

Strictly speaking, literary work is writing of great value from the standpoint of the beauty and emotional effect of its form and content. From the point of view of copyright, however, a general reference to literary works is commonly understood as meaning all sorts of original written works, be they of a belletristic, scientific, technical or merely practical character, irrespective of their value or purpose.

But an artistic work (or work of art) is a creation intended to appeal to the aesthetic sense of the person perceiving it. The category of artistic works comprises paintings, drawings, sculptures, engravings, and in several copyright laws also works of architecture and photographic works. Although in some countries musical works are considered to be a special category of protected works, in many copyright laws the notion of artistic works comprises musical works too. Works of applied art are in most legislation likewise included in this category.

Musical works are also protected by copyright. Such works comprise all kinds of combinations of sounds (composition) with or without text (lyric or libretto), to be performed by musical instruments and/or the human voice. If the work is also intended for stage performance, it is called a dramatico-musical work. Music usually forms part of cinematographic works too. The author of a musical work is generally referred to as the composer. The most frequent uses of musical works for which protection is granted under copyright laws are reproduction (as sheet music or recording), performance, broadcasting other forms of communication to the public, arrangement and use as background music. Copyright laws making protection subject to fixation in material form only protect music written in musical notation or recorded appropriately

Another area of importance is scientific works. Scientific work deals with problems in such a way as to correspond to the requirements of scientific approach. The coverage of this category of works is not at all restricted to the field of natural sciences or to literary works of a scientific character. A computer program could under certain circumstances also be a scientific work. In copyright laws, a general reference to scientific works is often understood as meaning all kinds of works other than artistic or fictional, such as technical writings, reference books, popular scientific writings, or practical guides. However, scientific works protected by copyright do not comprise scientific inventions, discoveries, research work or scientific undertakings.

Why to protect a work by copyright?

Even though the work is protected by the fact of its creation some sort of proof is needed which can be obtained by the registration of the work under copyright law of the nation. In civil-law countries, the work is typically protected from the moment of its creation. On the other hand under common law you need have to have it fixed in some way, perhaps written down or recorded on tape. It implies thatthe work has to be fixed before it is protected. The difference here is really not that important, it is basically a question of the kind of proof you would need in a court in the very rare cases of works that are not fixed in the normal way.

There are no “international copyrights’ that enable you protect your work throughout the world. However, most countries are members of the Berne Convention and the Universal Copyright Convention (UCC), which allow you to protect your works in countries of which you are not a citizen or national. In Berne Convention countries, all foreign owners of rights or authors from other Berne countries qualify for protection under the Convention without any formalities, so there’s no need to make any registration. Under these treaties, the following works may be protected (i) both unpublished and published works of an author who is a national or resident of a country that is a member of these treaties; or (ii) publishedworks, with permission, of an author who is not a national or resident of a country that is a member of these treaties. In this case a work may be considered simultaneously published in several countries if it has been published in two or more Berne Union countries within 30 days of its first publication

Berne Convention:

Berne convention established in 1886 is the oldest international convention concerning copyright. The Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979. The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO. It is to be noted that WTO Members, even if they are not party to the Berne Convention (e.g., Indonesia), must comply with the substantive law provisions of the Berne Convention, except that WTO Members not party to the Berne Convention are not bound by the moral rights provisions of the Berne Convention. It should also be noted that developing and “transition” countries may, at least until 2000, delay the application of most of the obligations provided for in the TRIPS Agreement (Article 65). Naturally, States party to the Berne Convention cannot delay the application of their obligations provided for in the Berne Convention. The Berne Union has an Assembly and an Executive Committee. Every country member of the Union which has adhered to at least the administrative and final provisions of the Stockholm Act is a member of the Assembly. The members of the Executive Committee are elected from among the members of the Union, except for Switzerland, which is a member ex officio. On January 1, 1997, the Executive Committee had 30 members.

According to this convention the contracting states should not show discrimination to works from other member countries. Article 2 of Berne convention gives a list of works eligible for protection, which covers all literary, artistic and scientific works. Protection is not available to computer programs and multimedia productions according to this convention, which are latest developments. According to Berne convention a work is protected in all the member countries by virtue of its creation itself. Berne convention provides a minimum protection for the work that is lifetime of the author plus 50 years but article 9(2) provides the free use of the protected work in certain cases.

Copyright act in India provides the protection for a period of life time of the author plus 60 years.

COMPUTER PROGRAM & MULTIMEDIA PRODUCTIONS

Computer programs are a good example of a type of work which is not included in the list contained in the Berne Convention, but which is undoubtedly included in the notion of a “production in the literary, scientific and artistic domain” within the meaning of Article 2 of the Convention; indeed, computer programs are protected under the copyright laws of a number of countries, and under the TRIPSAgreement. A computer program is a set of instructions, which controls the operations of a computer in order to enable it to perform a specific task, such as the storage and retrieval of information. A computer program is produced by one or more human authors but, in its final “mode or form of expression,” it can be understood directly only by a machine (the computer), not by humans.

Another, recent example of a type of work not listed in Article 2 of the Berne Convention, but which is clearly included in the notion of a creation “in the literary, scientific and artistic domain,” is multimedia productions. While no acceptable legal definition has been developed, there is a consensus that the combination of sound, text and images in a digital format, which is made accessible by a computer program, embodies an original expression of authorship sufficient to justify the protection of multimedia productions under the umbrella of copyright.

WIPO Copyright Treaty (WCT)

In December of 1996, a Diplomatic Conference was held, which concluded the newest international agreement protecting copyright – the WIPO Copyright Treaty (WCT). This treaty responded to the need to protect works when transmitted by digital means, including via the Internet. The subject matter to be protected through copyright by the WCT includes that of computer programs, whatever may be the mode or form of their expression, and compilations of data or other material, (databases) in any form, which by reason of the selection or arrangement of their content constitute intellectual creations. The rights of authors include the previously mentioned rights of distribution, rental, and communication to the public, and it is made clear that the right of communication to the public covers the transmission of works through digital networks such as the Internet. These rights, as is normal, are subject to certain limitations and exceptions.
RELATED RIGHTS

Related rights also termed as neighboring rights provide legal protection to the interest of the persons or organizations that add substantial creative, technical or organizational skill in the process of bringing a work available to public. The protection is available to performing artists; producers of phonograms and broadcasting organizations from unauthorized exploitation of their rights resulted from the financial and organizational resources that they add to the copyright protected work. Protection under related rights also extends to broadcasting of live events and folklores.

Performers (singers, actors, dancers, musicians etc.) are eligible for protection because of their creative interpretations giving life to the work. The protection for such performance is 20 years from the end of year in which the performance took place according to Rome convention. But the term is 50 years according to TRIPS agreement. Unauthorized fixation, broadcasting etc. can be prevented by virtue of the protection granted.

Producers of phonograms need protection because they are the most immediate victims of piracy. They have the right to authorize and prevent direct or indirect reproduction, importation and distribution of their phonograms. The protection is for 20 years from the end of year in which the fixation is made according to Rome convention and is for 50 years according to TRIPS provisions.

Protection is also available to broadcasters for the investments and technical skill they put together so that the unauthorized re-broadcasting and recording could be prevented. The protection is for 20 years from the end of the year in which the broadcast took place according to both Rome convention and TRIPS agreement. The WIPO Performance and Phonograms Treaty (WPPT) that entered into force on May 20, 2002 offer protection to economic and moral rights as regards exploitation in digital form including that over Internet.

What are the Rights bestowed by Copyright?

The copyright holder has a set of different rights, which are governed partly by the Berne Convention, where there are minimum rights, and partly by national law, which often takes the rights even further. There are basically two types of rights 1) economic rights, which allow the owner of rights to derive financial reward from the use of his works by others, and 2) moral rights, which allow the author to take certain actions to preserve the personal link between himself and the work.

Moral rights:

These rights comprise the right to decide on disclosure of the work; the right to claim authorship thereof (to have the name of the author and the title of the work mentioned in connection with the use of the work); the right to prevent the mention of the author’s name if the author of the work wishes to remain anonymous; the right to choose a pseudonym in connection with the use of the work; the right to object to unauthorized modification of the work, to mutilation thereof and to any derogatory action in relation thereto; the right of withdrawal of the work from public use against payment of compensation for damages caused to any person who has previously received proper authorization to use the work. Most of the copyright laws recognize moral rights as an inalienable part of the copyright, distinct from the so-called economic rights. Some laws also provide for moral rights of performers to protect them against distortion of their performances and grant them the right to claim the mention of their name in connection with their performances.
Economic Rights

These are the rights providing financial benefits to the author. They imply as a rule that within the limitations set by the copyright law, the owner of the copyright may make all public use of the work conditional on payment of remuneration. Economic rights comprise, in particular, the faculty to do or to authorize the doing of any of the following: to publish or otherwise reproduce the work for public distribution; to communicate it to the public by performance, by broadcasting or by wire; to make translations or any kind of adaptation of the work and to use these in public.

The right of reproduction is the basic right of the right holder to prevent others from making copies of his/her works in printed form, CD ROM etc. The right holder can also authorize distribution of copies of the work by assigning the right. But the above right doesn’t prevent individuals to make single copies of the work for private, personal and noncommercial purposes.

The rights of Public performance, Broadcasting and Communication to Public are another bundle of rights owned by the copyright holder. The rights include prevention of others from the above acts and the right to authorize it. Public performance means the performance not only in a public place but also where a substantial number of persons outside the normal circle of a family and its closest social acquaintances is present i.e. the presentation of a play in a theatre or an orchestra performance of a symphony in a concert hall etc. Broadcasting covers the emission by wireless means within a range and Communication to public is that by means of wires and cables.

Another right is the right of translation and adaptation. Translation is the expression of a work to a different language and Adaptation is the modification of a work to create another work such as adapting a novel for making a cinema. In order to reproduce and publish a translation or adaptation authorization must be obtained from the owner of the copyright in the original work even if the owner of the copyright in the translation or adaptation grants permission.

PECULIARITIES OF COPYRIGHT

* Copyright doesn’t prevent individuals to make single copies of the work for private, personal and noncommercial purposes.

* In order to reproduce and publish a translation or adaptation authorization must be obtained from the owner of the copyright in the original work even if the owner of the copyright in the translation or adaptation grants permission.

* Copyright offers protection for a minimum period of lifetime of the author plus 50 years in almost all the countries

* Both civil and criminal remedies are available against infringement and piracy of the protected work.
* Copyright is not territorial.

Ownership of copyright and licensing

Owner of copyright is generally understood as being the person to whom the copyright in a work belongs. The original owner of copyright is as a rule, and except for a few special cases, which vary according to the different copyright laws, the author, who acquires copyright by virtue of law upon creation of the work. Owners of copyright may also be the heirs of the author as a result of inheritance. Some copyright laws allow for assignment of copyright in whole or in part and thereby the assignee becomes owner of the copyright in whole, or of the part assigned

Licensing in the field of copyright is the authorization (permission) given by the author or other owner of copyright (licensor) to the user of the work (licensee) to use it in a manner and according to conditions agreed upon between them in the pertinent contract (licensing agreement). Unlike an assignment, a license does not transfer ownership; it only constitutes a right or rights to use the work under the copyright in it, which remains with the licensor, though restricted according to the scope of the license granted. The license is either exclusive or non-exclusive; in the latter case, the owner of the copyright may lawfully grant similar licenses to other licensees too. Often the licensee also obtains the right to exploit his license by allowing other persons to use the work correspondingly (sub-licenses). Copyright conventions and national copyright laws may for compulsory provide licenses and statutory licenses in special cases.

Royalty will be paid to the author, etc. for each copy of a book sold, or for each public performance of a work.

Joint work and joint authorship

A joint work or work of joint authorship is generally understood as meaning a work created by two or more authors in direct collaboration or at least having regard to one another’s contributions, which may not be separated from each other and considered as independent creations. Examples of the most common types of joint works may be dramatico-musical compositions, musical works with lyrics, manuals written by several authors or computer programs created by a team. The authors of such a work are called joint authors or co-authors and their copyright in the whole unitary work in subject to special rules of copyright law. Joint works are not to be confused with either composite or collective works or collections.

According to most copyright laws, joint authors can authorize the use of the work only jointly and the terms of protection of rights to be measured from the death of the author are computed from the death of the last surviving author. The moral rights, in so far as granted by the applicable law, pertain to each of the joint authors individually and can also be exercised separately.

Infringement of copyright, piracy and remedies

1. Infringement of copyright characteristically consists of the unauthorized use itself (e.g. exhibition, reproduction, performance, broadcasting, other communication to the public of the work without permission; unauthorized distribution, exportation, importation of copies thereof; plagiarism; derivative use without the author’s consent, etc.); in countries protecting moral rights, infringement of copyright may also consist of distortion of the work, omission of the mention of authorship, etc.

Piracy is the reproducing of published works or phonograms by any appropriate means for public distribution and also re-broadcasting another’s broadcast without proper authorization. Unlawful fixation of live performances is referred to in common parlance as “bootlegging.” Therefore pirated copyright goods include mean any goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.

Legal proceedings can be instituted before a court or any competent authority for imposing sanctions on the infringement of copyright. There are both civil remedies and criminal remedies are available against infringement. Civil remedies compensate the owner of rights for economic injury suffered because of the infringement, usually in the form of monetary damages, and create an effective deterrent to further infringement, often in the form of a judicial order to destroy the infringing goods and the materials and implements which have been predominantly used for producing them; where there is a danger that infringing acts may be continued, the court may also issue injunctions against such acts, failure to comply with which would subject the infringer to payment of a fine.

Criminal sanctions are intended to punish those who willfully commit acts of piracy of copyright and related rights on a commercial scale, and, as in the case of civil remedies, to deter further infringement. The purpose of punishment is served by the imposition of substantial fines, and by sentences of imprisonment consistent with the level of penalties applied for crimes of corresponding seriousness, particularly in cases of repeat offenses. The purpose of deterrence is served by orders for the seizure, forfeiture and destruction of infringing goods, as well as the materials and implements the predominant use of which has been to commit the offense

Limitations on Rights

The first limitation to the rights is the exclusion of certain categories of works from copyright protection. In some countries works are excluded from protection if they are not fixed in tangible form; for example, a work of choreography would only be protected once the movements were written down in dance notation or recorded on videotape. In some countries, moreover, the texts of laws, court and administrative decisions are excluded from copyright protection.

1)     Free uses, which are acts of exploitation of works that may be carried out without authorization and without an obligation to compensate the owner of rights for the use. Examples of free uses include: the making of quotations from a protected work, provided that the source of the quotation, including the name of the author, is mentioned and that the extent of the quotation is compatible with fair practice; use of works by way of illustration for teaching purposes; and use of works for the purpose of news reporting. In respect of the right of reproduction, the Berne Convention contains a general rule, rather than explicit detailed limitations.

Also numerous laws contain provisions allowing reproduction of a work exclusively for the personal, private and non-commercial use of individuals.

2)     Non-voluntary licenses, under which the acts of exploitation may be carried out without authorization, but with the obligation to compensate the owner of rights.

Non-voluntary licenses are usually created in circumstances where a new technology for the dissemination of works to the public had emerged, and where the national legislature feared that owners of rights would prevent the development of the new technology by refusing to authorize use of works.