What is a copyright?
A copyright is an exclusive right given to the author of an original work for a specified number of years. There are three classes of work for which a copyright can be applied — original literary, dramatic, musical, and artistic works, including software programs; cinematograph films; and sound recordings.
The owner of the copyright has the exclusive right to, or to authorize others to, reproduce the work, issue copies of the work to the public, perform the work in public, communicate the work to the public, make cinematographic film or sound recording in respect of the work, make translations of the work, and make adaptations of the work.
According to Rodney D Ryder of Preconcept, “Copyright is the only right that accrues upon creation, that is, for example, if you write a story or create a computer software, you are entitled to protection from the minute you create the work.” A copyright is valid not only for the particular country that you are in, but all over the world, due to the Berne Convention, an international agreement governing copyright that requires its member countries (members of the Berne Union) to recognize the copyright granted by other signatory countries in the same way it recognizes its own.
Who can copyright?
As stated earlier, copyright is granted to the author of an original work in the classes mentioned earlier. This brings us to the question: who is an author? In the case of a literary or dramatic work, it is the person who creates the work; in the case of a musical work, it is the composer; in the case of a cinematographic film and sound recording, it is the producer; in the case of a photograph, it is the photographer; and in the case of computer-generated work, the person who causes the work to be created is the author.
What is the duration of a copyright?
A copyright on literary, dramatic, musical, or artistic work is valid for the lifetime of the author plus 60 years after his or her death. For all other types of work, including anonymous work, the copyright is valid for 60 years from the year it was published or produced. After the copyright expires, the material enters the public domain and can be used freely by anyone.
Is registration necessary?
One does not need to register to be entitled to a copyright. Registration is a legal formality for making a record of a copyright. However, it adds proof to one’s ownership and helps in case of copyright infringement. It is important to note that registration does not give one any additional rights over those received when the work was first created. The process of registration takes about six to nine months.
| Conventions that protect Indian work in foreign countries |
| • Berne Convention for the Protection of Literary and Artistic Works |
| • Universal Copyright Convention |
| • Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of Their Phonograms |
| • Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties |
| • Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement |
What cannot be copyrighted?
The term “original” has a narrower meaning when it comes to the copyright law. It is important to note that the copyright law does not seek to protect ideas, but only unique expressions. For example, if you are creating an action adventure gaming software, you cannot copyright the idea of action adventure gaming software, but your versions of it, for example, The Legend of Zelda Series or Tomb Raider Series. The reason behind this is, if ideas are protected, it would lead to blocking them from further development.
There can be no copyright in subject matter, themes, plots, historical or legendary facts, titles by themselves, or names, short word combinations, slogans, short phrases, etc.
When is a copyright infringed? What is the redressal?
A copyright is said to be infringed under two conditions. One, when a person who does not have a copyright license does something that only the owner of the copyright has the exclusive right to, such as making copies, selling, etc. Two, when a person permits the use of a place for the communication of a copyrighted work to the public without permission and for profit.
According to Ryder, “A copyright infringement is both a civil as well as a criminal offense. If it is an economic loss, you can claim damages in the civil court of law. You can also file a police complaint; an officer above the rank of a sub-inspector can take cognizance without a magistrate’s warrant. Copyright infringement is a non-bailable offense.”
Works covered under the Copyright Act |
a) Original, literary, dramatic, musical, and artistic works:
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| b) Cinematograph films: A visual recording, which is a combination of various arts and music (for example, soundtrack, acting, dancing, etc.) |
| c) Sound recording: Recording of sound regardless of the medium or method in which such recording is made |
What is fair use under the Copyright Act?
The doctrine of fair use allows copyrighted material to be used under certain circumstances without invoking infringement. A copyrighted work can be used without the permission of the copyright holder to facilitate education and research, to disseminate knowledge and information for the promotion of the economy and society, for criticism or review, for reporting current events, in connection with judicial proceedings, for performance by an amateur club or society if the performance is given to a non-paying audience, and the making of sound recordings of literary, dramatic, or musical works under certain conditions. The doctrine of fair use is incorporated in Section 52 of the Indian Copyrights Act, 1957, which explains what is not legally an infringement.
| Creative Commons Licenses |
| Creative Commons Licenses are several copyright licenses released by Creative Commons (CC), a US non-profit corporation. A Creative Commons license is based on the copyright law, so is applicable to works protected under the copyright law. It provides a middle path between the two extremes of “All Rights Reserved” and the “Public Domain,” and gives information about how the material can be used by others — such as the right to copy your work, make adaptations of your work, and to distribute your work. |
| The Creative Commons licenses are based on four elements: Attribution (people can copy, distribute, display, perform, and remix copyrighted work, as long as they give credit as requested; all CC licenses contain this property); Non-commercial (people can use the work for non-commercial purpose); No Derivatives (the work cannot be altered or modified); and Share Alike (people can create derivative works on a copyrighted material provided it is published under the same license as the original work). |
How is copyright different from trademarks and patents?
There are three types of protection available for intellectual property — copyright, patent, and trademark. While patents protect inventions and improvements to existing inventions and trademarks protect brand names and designs, a copyright protection is for literary, artistic, and musical work.
| Copyright Term Extension Act of the US (Sonny Bono Act) |
| In 1998, the Copyright Term Extension Act (CTEA) extended copyright terms in the US by 20 years. Before this Act came into being, a copyright would have lasted for the author’s lifetime plus 50 years, or 75 years in case of corporate authorship. This Act extended the duration to the life of the author plus 70 years, or in case of corporate authorship to 120 years after creation or 95 years after publication, whichever is earlier. Though this Act affected copyright terms for copyrighted works published before January 1, 1978, it did not revive copyrights that had already expired. |
How does one license a copyrighted property?
A copyright can be either licensed or assigned. While assigning a license, the author of the work can fully or partially sell the copyright either for the whole term of the copyright or any part of it, subject to certain limitations. In this model, the author or the creator, after assigning the copyright, will generally not have any control over how the third party uses those rights. For example, a musician may assign rights of his creation to a record company in exchange of royalties and other considerations. On the other hand, the record company may invest in promoting the video and gain out of it commercially.
A license is an agreement where the copyright owner maintains his ownership, but allows the licensee to exercise some or all of the rights without fear of a copyright infringement. Hence, the author or the creator will continue to exercise control over how the third party uses the copyright owner’s rights. For example, a software license agreement is generally a copyright license agreement.
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written by krishna gopal sengupta, December 24, 2009
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