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Copyright - FAQs |
1. What is Copyright?
Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work.
2. How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be protected under the copyright law.
3. What does copyright cover?
It mainly covers: -
(i) Artistic work.
(ii) Literary, dramatic and musical work. Computer programs / software are covered within the definition of literary work.
(iii) Cinematographic films which include sound track and video films.
(iv) Sound recording-any disc, tape, perforated roll or other device.
4. What is an artistic work, as under the Copyright Act?
An artistic work means-
o a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
o a work of architecture; and
o any other work of artistic craftsmanship.
5. What is a musical work, as under the Copyright Act?
"Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. A musical work need not be written down to enjoy copyright protection.
6. What is a sound recording, as under the Copyright Act?
"Sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings.
7. What is a cinematograph film, as under the Copyright Act?
"Cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films.
8. What is a computer program, as under the Copyright Act?
Computer program means a set of instructions expressed in words, codes, schemes or any other form, including a machine-readable medium, capable of causing a computer to perform a particular task or achieve a particular result.
9. Does copyright protect architecture?
Yes. Architectural works can be protected under the Copyright Law. As per the copyright law “work of architecture” means any building or structure having an artistic character or design, or any building for such building or structure.
10. Can domain names be protected under the copyright law?
Copyright law does not protect domain names. The Internet Corporation for Assigned Names and Numbers (ICANN), a nonprofit organization that has assumed the responsibility for domain name system management, administers the assignation of domain names through accredited registers.
11. Does the copyright law protect the ideas of the author and the future commercial expressions of the same idea?
No. The copyright law does not protect the idea of the author and protects only the method of expression of idea. If an idea can only be expressed in a single way, such expressions cannot be protected under the Law of Copyright. Future commercial expressions of the idea also cannot be protected under the Law of Copyright, it can only be protected under the Law of Patent.
12. What is the term of a copyright?
If published within the lifetime of the author of an artistic (other than photograph), musical, literary, dramatic work, the term is for the lifetime of the author plus 60 years. For cinematography films, sound recording, photographs, posthumous publications, 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.
For broadcasting the term is 25 years from the beginning of the calendar year following the year, in which the broadcast was made.
13. Is it mandatory to have registration for copyright protection?
No, it is not mandatory to register Copyright. Berne Convention grants “inherent protection” which means the holder does not have to comply with any formalities for the purposes of copyright protection.
But obtaining registration should be preferred because registration is a prima facie proof of ownership and it might be easier to persuade judicial and administrative authorities to grant you interim relief even without notice to the infringers.
14. What are the rights of a copyright holder, which when violated lead to infringement?
(a) In the case of an artistic work –
i. to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
ii. to communicate the work to the public;
iii. to issue copies of the work to the public not being copies already in circulation;
iv. to include the work in any cinematography film .
v. to make any adaptation of the work;
to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (v);
(b) In the case of literary, dramatic or musical work, not being a computer program –
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 cinematography film or sound recording in respect of the work;
v. to make any translation of the work; to make any adaptation of the work;
vi. to do, in relation to a translation or an adaptation of the Work, any of the acts specified in relation to the work in Sub-clauses (i) to (v);
(c) in the case of computer program –
i. to do any acts specified in clauses (a);
ii. to sell or give on hire, or offer for sale or hire any copy of the computer program, regardless of whether such copy has been sold or given on hire on earlier occasions;
(d) in the case of a cinematography film –
i. to make a copy of the film including a photograph of. any image forming part thereof;
ii. to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
iii. to communicate the film to the public;
(e) in the case of sound recording –
i. to make any other sound recording embodying it;
ii. to sell or give on hire or offer for sale or hire, any copy of the ,sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;
iii. to communicate the sound recording to the public;
Explanation: - For the purpose of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.
15. What kind of use does not amount to copyright infringement?
Section 52 of the Copyright Act lays down that certain types of uses of Copyright will not amount to a copyright infringement. Under the fair use doctrine, it is permissible to use limited portions of a work including quotes, for purposes such as commentary, criticism, news reporting, scholarly reports etc; such use shall not amount to infringement.
16. What are the remedies in case of an infringement of copyright?
The Law provides civil and criminal remedies in case of infringement of copyright. Copyright infringement is a cognizable offence where a Police Officer not below the Rank of a Sub-Inspector can arrest the offender without the warrant and conduct the search even without prior authorization of a Court.
Copyright infringement if proved in a Court of Law carries a minimum mandatory sentence of imprisonment of six months and minimum fine of Rs. 50,000 which can extend upto Rs. 2 lakh. The Act further provides that there will be an enhanced penalty in case of second and subsequent convictions.
In Civil Cases, the District Court can be persuaded not only to give an interim injunction without notice to the other party but also usually gives a direction under Order 39 Rule 7 of C.P.C. where a Commissioner appointed by the Court will visit the premises of the infringers and will be empowered to conduct a search of the inventors premises and cease infringing material from the infringers premises. The seized material can be used at a later point of time to establish infringement.
In UK these types of orders are called ANTON PILLOR ORDERS.
17. Who is an author, as under the Copyright Act?
Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer or commissioning party is considered to be the author.
18. What are the rights of an author?
The rights of an author are different from that of the owner of the work. The author is entitled to moral rights also which the owner is not. The moral rights enable the author to have the right to be identified as an author and the right against mutilation of his work.
19. Will a company become the author of a work if a person creates the same while working in the company?
A company cannot be author of a work, but it can be owner of the work created by a person who is working under a contract of employment.
20. What is the benefit of protecting my work?
Once your creation has been fixed in a tangible medium of expression the copyright on your work is protected by copyright law. By registering your copyright you will have irrefutable proof of first ownership of your intellectual property. This proof can be used in a court of law in alleged cases of copyright infringement. When faced with an alleged case of copyright infringement you need this proof. Proving the date of creation can be a problem. Copyright registration can make the proof on this point a lot easier. By registering it you will have an individually numbered certificate of registration of copyright relating to that particular copyright work.
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