Hana Onderkova | 2nd April 2022
What is Copyright?
Copyright is an intellectual property right that law gives to a creator of literary, dramatic, musical, and artistic work and a producer of cinematograph films and sound recordings. It also applies to architectural works and computer program/software. It can be understood as a bundle of rights that include the right of reproduction, communication, adaptation, and translation of the work. Copyright ensures protection to the rights of authors over their creations and in turn aims at rewarding creativity.
The Copyright Law in India
The Copyright Act, 1957 (Act) along with Copyright Rules, govern the laws related to copyright protection in India. Mere ideas, knowledge or concepts are not copyrightable. Having said that copyright protects the original expression of information and ideas. Copyright can be claimed by either the creator or the person who has inherited the rights of ownership from the original creator or an agent who is allowed to act on behalf of the creator.
The Copyright Act provides an economic right to the author to reproduce the work, to issue copies, to perform or communicate it to the public, to make any cinematograph film or sound recording or to make any adaptation or translation of the work. The Act also provides a paternity right- right to claim authorship of the work; an integrity right- right to protect one’s honor and reputation and a general right- right to not have a work falsely attributed to oneself. These moral rights remain with the author even after assignment of the copyright.
When it comes to enforcement, Copyright Board used to adjudicate certain cases pertaining to copyright, however with the passing of the Finance Bill in 2017, the board was dissolved, and its functions were transferred to the Intellectual Property Appellate Board (IPAB). Subsequently, the IBAP was abolished in 2021, and powers were finally transferred to Commercial Courts (a division of High Courts).
India being a signatory to the Berne Convention for the Protection of Literary and Artistic Works, 1886 (Berne Convention), is obligated to give equal protection to the works originating not only in India but also outside India in any of the contracting states. It is an important principle of the Berne Convention that the registration of copyright is not mandatory, in India too it is not mandatory for one to register a copyright for availing the protection of law. Consequently, the Copyright Act 1957 also does not mandate registration.
Having said that when it comes to enforcement there have been inconsistent judicial decisions on the issue of registration. Nevertheless, the latest standing of the Courts is in alignment with the principles of Bern Convention and upholds that registration is not a mandate for the IP right to prevail. Having said that, registering the copyright comes with some advantages. For example, a registered owner can also record the registration with Indian Customs to help in protection against the importation of infringing copies into India. Further advantage is that copyright registration creates a public record of the ownership of the copyright and a registered owner is entitled to statutory damages in case of infringement which otherwise it would be only limited to an award related to actual damages and profits which might quite complicated to establish in Court proceedings.
To register a copyright, the creator of the work has to file an application with the Copyright office along with a requisite fee. Then follows several steps of scrutiny which includes giving an opportunity for objections to be filed in view of the copyright application. In case there are objections the applicant has to successfully defend their position. Finally, the registration process concludes when the registrar enters the details of the copyright in the Register of Copyrights and the applicant is provided with the Extracts of the Register of Copyrights (ROC).
In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is 60 years in addition to the author’s lifespan. Where there are multiple authors, the term is 60 years post the death of the last author.
For cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations, Copyright protection subsists for a period of 60 years from the year of publication. In case of unpublished Cinematograph films, Photographs, and computer programs the copyright subsites up to 60 years from the year in which the original work was created.
Copyright for Sound recordings is valid for 60 years from the end of the year in which that sound recording is published for the first time. Broadcast reproduction rights are valid for 25 years from the year of broadcast and performers rights last for 50 years from the year the performance was made.
On 30 March 2021, the Copyright (Amendment) Rules, 2021 was brought into effect with the primary objective of bringing the existing rules in parity with other relevant legislations and ensuring accountability and transparency. Moreover, the amendemnt of the Copyright rules aimed at facilitating smoother functioning by adopting electronic means as primary mode of communication and working in the Copyright Office. The amendments have incorporated a new provision of publication of a copyrights journal which is available at the official website of the Copyright Office.
Moreover, for better accountability and transparency, the Copyright Societies are now required to draw up an Annual Transparency Report for the public. Such a report typically contains information on license refusals, royalties collected and distributed, transactions with foreign societies or organization and many more.
The time limit for the Registrar of Copyrights to either accept or reject an application for registration of a copyright society has been extended from sixty days (60) to one hundred and eighty days (180), for comprehensive examination.
As per the new amendments, an applicant does not have to submit the entire "source and object code" for registration of software. The present requirement is the submission of the first 10 and last 10 pages of source code, or the entire source code if less than 20 pages, with no blocked out or redacted portions.
This article was originally authored by Hana Onderkova for the European Commission's IP Helpdesk. You can read the original article here: https://intellectual-property-helpdesk.ec.europa.eu/news-events/news/copyright-protection-india-overview-and-recent-developments-2022-03-02_en
copyright, protection, India