Sep 25, 2024 | Copyright
The assignment of copyright is dealt under S.18 of the Copyright Act, 1957. The assignment of copyright, as per S. 18(1) means the transfer of rights of the copyright from the owner (assignor) to another entity (assignee). This transfer can be done either wholly or partially or subject to some limitations and in respect of work already existing or some future work when it comes into existence.
The steps and process of copyright assignment in India are as follows-
- There should be a proof of ownership of the copyright or copyright registration certificate
- A copyright assignment agreement. The essentials of the agreement are prescribed under 19 of the Act and are as follows
- The agreement shall be made in writing and should be duly signed by the assignor or by his duly authorised agent. (S.19(1)).
- It shall identify the work and specify the scope of rights assigned (S.19(2)).
- It should also provide the consideration or royalty payable. It also prescribes that the matters of revision, extension or termination of the copyright assignment shall be decided upon mutual agreement of the parties. (S.19(3)).
- It should mention the duration and territorial extent of the assignment. As per S. 19(5), if the period of assignment is not stated, it will be presumed to be for a period of five years (5). Under 19(6), it provides that if the territorial extent of the assignment is not mentioned, it is to be presumed to extend to the whole of India.
- Under 19(4), if the copyright has been assigned and the assignee does not exercise the rights conferred upon him within a period of one year, the assignment of such rights shall deem to have been lapsed, unless the agreement provides otherwise.
- An assignment of copyright can be done either before or after the work comes into existence. In cases where assignment follows the registration of copyright, a request under Form XV (registration of changes in particulars of copyright provided under the Copyright Rules, 2013 as per Rule 71)
The following documents are required-
- Notarized copy of the Assignment Deed
- An affidavit certifying that there is no pending matter in any court regarding the Assignment
- Attested copies of the deed
- If any authorised agent is appointed, a power of attorney should be filed
- If the original owner is deceased, attested copy of the death certificate of the owner has to be produced.
- Address and ID proof of the assignor and assignee are required.
As per Schedule 2 and Rule 83, for any application of change in particulars of a copyright entered in the Register of Copyrights in respect of a
- Literary, dramatic, musical or artistic work- Fee-Rs. 200/work
- Provided that in respect of 3[***] Artistic work which is used or is capable of being used in relation to any goods 4[or services] (section 45).- Fee-Rs 1,000/work
- For an application for registration of changes in particulars of copyright entered in the Register of Cinematograph Film- Rs 2,000/work
- For an application for registration of changes in particulars of copyright entered in the Register of Copyrights in respect of a Sound Recording-Rs. 1,000/-
All the above documents and the form should be registered with the Copyright Office with the prescribed fee as mentioned above.
- The Copyright Office will examine the agreement and if found acceptable, will register the assignment. . Registration creates a legal record of the transfer and gives notice of the assignment to the public.
The assignment takes effect as soon as it is registered. A certificate of registration for the assignment, which provides additional evidence of the transfer of rights, may be issued by the Copyright Office. Following a successful registration, the parties concerned may receive a confirmation or acknowledgment letter from the Copyright Office confirming the registration. The Copyright Office may occasionally publish the assignment’s specifics in the Official Gazette, which acts as a public notice.
The effect of registration of assignment deed-
- Dilution of Rights: The assignor’s rights are diminished to the degree that the third party’s (assignee) rights are increased
- Royalty: The rights that are assigned and the amount of royalty that is paid to the creator should be clearly stated in the assignment agreement.
Author: Rachana Koushik (Symbiosis Law School, Hyderabad) & Harish Kumar P (VIT University, Chennai Campus)
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May 6, 2024 | Copyright, General
Copyright is a form of intellectual property.[1] Copyright law offers multiple advantages that support in protecting the rights of original creators while also allowing room for creative expression and commentary through the usage.
The Fair Use Doctrine permits the legal copying of a copyrighted work, and it is prescribed under Section 52 of The Copyright Act, 1957[2]. This Doctrine provides an exception against the protections of copyright when the copying of the work is done with the intent and goal of studying, reviewing or even criticising it. As an extension of the same, parody or satire of a copyrighted work is deemed to be covered under this exception. However, from a practical perspective, parody operates in a legal indeterminate area.
Parody and satire are terms used interchangeably, but the two are not identical or equivalent. Although Parody and Satire are both tools of humour that are often used to criticise, review or even merely poke fun at something. However, it is important to note that these two must be necessarily differentiated in order to determine the legality of the same in the context of intellectual property infringement.
While both parody and satire use humor as a tool to effectuate a message, again, the purpose of a parody is to comment on or criticize the work that is the subject of the parody. By definition, a parody is a comedic commentary about a work that requires an imitation of the work. Satire, on the other hand, even when it uses a creative work as the vehicle for the message, offers commentary and criticism about the world, not that specific creative work. Therefore, parodies use copyrighted works for purposes that fair use was designed to protect in the first place.[3] While the difference between parody and satire has been exclaimed on numerous circumstances, the judicial bodies however, tend to club these two terms as the same while passing out their ratio decidendi.
The value of a brand parody
Courts and observers appear to agree that parody has societal significance as critical speech, irrespective to think a particular parody deserves legal protection.
As the Supreme Court has stated, “Like less ostensibly humorous forms of criticism, parody can provide social benefit, by shedding light on an earlier work, and, in the process, creating a new one.” [4]
Although courts generally acknowledge parody, they are noticeably less appreciative of parodies that act as brands.
The First Amendment5 and jurisprudence governing trademark, both grant non-commercial communication a distinct standing. However, the issue with brand parodies goes past doctrine; courts appear to disagree on whether a defendant’s commercial goals conflict with the free speech interest in the parody.
However, there is a compelling argument that, at least in the context of trademarks, the inclusion of parody in a brand achieves expressive purposes that are not at all possible through regular, non-branding speech. Most branding parodies, if not all of them, carry a double-intended message. They are not just making fun of the targeted brand when they use its name.
Beyond just doing a parody for some trademark, brand parodies also capture the branding mechanism and use it to provoke the critical thought about the atmosphere of brands in our society.
Therefore, brand parody that are genuine in nature have societal value and are not likely to lead to confusion or a loss of the uniqueness of the target mark; as a result, trademark courts should rarely forbid them. however, disputes over brand parodies can go on for years as courts disagree on how and when the law should apply in that circumstance.
Because of the commercial nature of these parodies or because of the impression of exploitation and clout riding that has been created, there may be ambiguity and incorrect application of the law.
Circumstances when parody cannot be used as a defence
While parody may be protected under the fair use doctrine in some cases, it is not an absolute defence, and each situation should be evaluated on the basis of the case and legal jurisdiction in order to determine its validity. Even while there is no existence of an absolute defence for parody, common sense and rationality suggests that it may be difficult to prove what does and does not amount to a ‘successful parody’, which could be where the idea of humour is directly communicated to the target audience. Hence, proving infringement against a strongly- alleged claim of parody is likely to be very challenging. There are instances where parody is not subject to blanket protection under the doctrine of fair use provided by the statute.
In the case of Leibovitz v. Paramount Pictures Corporation[5], an acclaimed photographer by the name Leibovitz had taken a picture of actress Demi Moore during her pregnancy during a professional photoshoot. She was seen to be making passionate facial expressions in the picture. Certain aspects of the picture stood out, such as the way the subject was positioned and posed, the kind of lightning, etc. that gave a distinct feel for the same. The controversy now, which led to the case, stemmed from the fact that Paramount Pictures released a picture of actress Leslie Nielsen shortly after the Leibovitz photo, suggesting ideas that were similar to those in Demi Moore’s image.
The stance taken by the court made the concerned parties realize that anything under the sun does not become a parody simply because it involves a trace of humor. If it is discovered that the defendant has tried to take advantage of a reputed work only to make commercial gains by simply involving some humor in the work, then such a work can be denied the defence of parody.
Similarly, in the famous Superman Logo case of 2015[6], in the United States of America, The defendant was an apparel line that featured the well-established and recognisable Superman shield design on its items. The word “Dad” was shaped like a superman emblem on the T-shirts. The defendant said that there was little chance that customers would confuse their SuperDad T-Shirts for the iconic Superman insignia because they were a blatant and obvious mimic of it.
The defendants of this particular dispute had the contentions that the word ‘dad’ relates to the acknowledgment of the real-life hero which a father is to their children and the undue self-importance that is given. While this was a creative argument stirred up by the Counsel for defendants, it was not enough for convincing the honourable court. The court dismissed the contentions laid down by the defendants and held that although the defendant’s use of the word ‘Dad’ was with the intent of humour, the purpose is only to promote their t-shirts using the famous logo of the plaintiff, and this certainly cannot be protected as a parody under the law.
Conclusion
In conclusion, the Fair Use Doctrine and copyright laws offer an essential balance between defending the rights of the original creators and permitting parody as a form of creative expression and commentary. Parodies can be regarded as a tool for critical discourse since they provide new light on past works and generate new points of view when the intention is present. However, the legal landscape for brand parodies is complex, as courts grapple with the intersection of commercial interests and free speech rights. While genuine brand parodies have societal value, disputes can be prolonged and contentious. Parody is not an absolute defense, and its validity depends on the specific circumstances and legal jurisdiction for which the dispute can be handled in the interests of justice, equity and good conscious
Author: Ayushman Kumar B.
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Mar 8, 2023 | Contracts, Copyright, Indian Patents Act 1970, IPR & Business, Patent, Startups, Trademark
Video games are amongst the most widely enjoyed forms of entertainment today. While video games are predominantly played by people in their adolescence, these games are making their way into a multimillion-dollar full-fledged industry that is based on competitive playing. With this level of involvement of games in the lives of people everywhere, it then comes as no surprise that there have been cases where popular characters of video games have come under the spotlight of intellectual property theft. Let’s take a look at a case riddled with twists featuring some of the world’s most popular movie and video game characters.
The case
When we picture the word “Mario”, we instantly imagine a character wearing a red plumber’s uniform, bouncing on platforms to save his princess from evil forces. And when we hear the phrase “King Kong”, our minds instantly jump to a massive gorilla waving his arms around, swatting at airplanes atop the empire state building. It may come as a surprise that the owning studios of these productions have in fact gone head-to-head in a rather interesting lawsuit regarding the theft of the idea of the popular oversized gorilla.
The movie King Kong was first released in the year 1933 by Merian C. Cooper. The production house for King Kong was RKO, which later went on to release subsequent sequels of King Kong in the following years. The movie franchise went on to do very well, earning their producers and directors large sums of money throughout the runtime of the movie. In the year 1981, Nintendo released their game Donkey Kong, where Donkey Kong was a large ape and would attempt to stop Mario (then called Jumpman) from reaching Pauline (Mario’s romantic interest, then called Lady). The game was a big hit and it was simply a matter of time before the game caught the eye of Universal Studios, who then apparently held the license for King Kong. Outraged at Nintendo and other game studios for blatantly copying the idea of King Kong, Universal Studios sternly ordered every agency selling products under the name of Donkey Kong to pay Universal Studios royalties for the misuse of Donkey Kong by way of cease-and-desist letters. Almost all the agencies reverted back with the royalty payments, except Nintendo.
Nintendo attempted to settle the suit outside the proceedings of a court in the year 1982 to which the Vice President of Universal Studios Robert Hadl responded by asking Nintendo to stop making copies of Donkey Kong. Nintendo’s attorney Howard Lincoln pointed out that the name King Kong had previously been used on multiple products that were in no way affiliated with Universal Studios, claiming that Universal Studios in fact did not have the rights to King Kong in the first place. Hadl then asked Nintendo to brace themselves for a lawsuit, claiming that Universal Studios saw lawsuits as a way of making money.
John Kirby was brought in by Lincoln to represent Nintendo in the case because he had a history of winning big-name lawsuits for companies like Sony. During the proceedings, Universal Studios claimed that Nintendo’s Donkey Kong and Universal Studios’ King Kong could easily be confused with each other and that the story line of the movie and game were also similar. To counterattack, Nintendo asked a representative to assure the court that the gameplay of Donkey Kong was in no way similar to the storyline of King Kong. Additionally, Nintendo went on to claim that Universal Studios did not own the rights for King Kong and shockingly enough, that Universal Studios were aware of this fact and still decided to demand royalties for King Kong despite knowing they did not have the rights for King Kong.
Historically, the rights of King Kong had always been a territory undefined. When King Kong was initially released by Cooper in 1933, the rights were firmly with Cooper. Later on, Cooper realized that other production houses were making movies with the character King Kong, and that he had no clear documents preventing them from doing so. Cooper tried to find papers to authenticate his rights but found that he had given the rights for only 2 movies to a production house called RKO Pictures and for a book written by his friend Delos W. Lovelace sometime in the decade of 1970, a whole decade before the release of donkey Kong by Nintendo. However, Cooper could not find documents stating that the license was given to RKO Pictures. During this time, Universal Studios wanted to make their own series of movies on King Kong but were stopped as the rights to King Kong were with RKO Pictures. Desperate to win King Kong, Universal Studios argued in court that the copyright on Lovelace’s novel (which was the only existing document proving ownership of any kind) had expired by then and that King Kong was therefore a public domain character. The court decided that King Kong was indeed in the public domain and therefore anyone could make their reproductions of the character as long as the story involving the character was not copied.
The presiding judge during the 1982 case of Nintendo versus Universal Studios kept all this in mind and reprimanded Universal Studios for knowing fully well that Universal Studios had themselves contested that King Kong was a public domain character but still asserted that they owned the character and even demanded royalties from agencies making use of King Kong. The presiding judge further ruled that the game Donkey Kong was not similar to the storyline of King Kong in any way and was “a parody” at best, thus solidifying Nintendo’s case against Universal Studios. The judge declared that any agency that had paid royalties to Universal Studios were free to demand the royalty fee back from Universal Studios and that all cease-and-desist letters from Universal Studios were rendered null and void. Further, the court found that a game released by a company called Tiger Electronics was very similar to Donkey Kong and thus ordered Tiger Electronics to pay Nintendo a sum of $58 million.
Universal Studios was the one to push this lawsuit against Nintendo in order to extract money from them by means of a character that they didn’t have the rights for. Universal Studios knew this in fact because a few years ago they themselves had gone to court to prove that King Kong was a public domain character, and anyone was free to use the character. Nintendo had initially planned to settle the matter outside of the court but went against the movie giant Universal Studios and even won with getting money from profits from a by-product of the ruling. This case shows us that it is never a good idea to underestimate the court or your opponents, and to assume that all secrets regarding ownerships and rights are out in the open for everyone to access. Universal Studios underestimated the court and Nintendo and subsequently ended up losing the case.
Author: Udit Sharma, Graduate student in Additive Manufacturing, Uppsala University, Sweden
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Feb 18, 2022 | Copyright, IPR & Business, Patent, Startups
The provision of Section 3(k) of Indian Patent Law, that says computer software per se is not patentable till it has technical applications, puts most of the inventors down. Knowing the fact that software patent in India is tough; the next question from the inventor is that, if not patent, can we at least get a copyright?
The fact of the matter is that the statutory right that one gets in the case of patent cannot be substituted by a copyright and it is important to understand difference between the two. Copyright and patents fall under separate legal regimes and for one single product, one may file for patent as well as copyright.
Prime difference between copyright and patent is that copyright protects only expression of the idea but not the idea itself, whereas, patent protects the concept as well. For example, if there is a product, meant for administration of a hospital, the idea or concept is administration of a hospital, which does not get protection under copyright law. However, the way code has been written is the expression of the idea and the author who has written the code has copyright over it. If any other person writes another code (without copying code from first author), he also has his copyright on the product. On the other hand, if there is a patent for the product, the patent holder can prevent everyone else from making, using, selling, offering for sale or even importing the patented product in the jurisdiction (s) where he has valid patent rights.
Independent creation of copyright is not an infringement whereas the same is not true for a patent. This means that if the work is not directly copied from the copyright holder, and created independently, it is not deemed to be copyright infringement. On the other hand, independent creation of patented product is deemed to be infringement.
As soon as patent application is filed, the applicant may write ‘patent applied for’ or ‘patent pending’ on the product, whereas copyright notice, such as ‘(c) copyright, Origiin IP Solutions LLP’ can be written without registration as well. Though copyright is an inherent right and needs no formal registration as such, but registration becomes important and registration certificate serves as a proof of ownership in case of copyright infringement or even in case of merging/acquisition or to obtain funding/loan from bank or venture capital.
Novelty-Critical Requirement
Novelty is the most critical requirement for a patent which means that before the date of filing a patent application, there shall not be any disclosure of the invention. Whereas copyright, though requires originality in the work, does not have novelty as a critical requirement that enables one to file backdated application as well. Term of a patent is 20 years from the date of filing whereas term of copyright is 50-70 years from the date of death of last author.
It is interesting to note that copyright registered in any country which is a member of Berne Convention hold good in all countries which are members of Berne Convention. In order to get patent rights in multiple countries application shall be filed separately in each country. Though we have single patent application filing platform like PCT, patent rights are granted only by national offices.
Case study
In order to understand difference between copyright and patent, lets have a look at Stac vs Microsoft, an interesting court case in the USA, which Microsoft lost and was required to pay $120 mn for its willful infringement of #4,701,745 (a compression software patent). Stac had a software patent on the algorithm for its PC hard disc data compression software product. Microsoft expressed interest in working with Stac and in the process copied the compressed algorithm of the Stac product. Microsoft then wrote its own code to execute the Stac algorithm and used the code in MS DOS 6.2 product. Stac sued Microsoft for patent, trade secret, and copyright infringement.
A permanent injunction was given against Microsoft and was ordered to pay Stac $120 mn. Calculation of the damage was calculated on basis that Microsoft had included the infringed code which prevented Stac from marketing millions of copies of its separate data compression software. After litigation, for about a week, a lobotomized version of DOS was shipped with the compression feature disabled. DOS manuals were shipped with stickers on the cover warning to ignore the chapter on compression. MS finally got license to use the algorithm in DOS and agreed to pay $1 mn per month for 43 months and to purchase about $40 mn of Stac convertible preferred stock.
Since Microsoft did not copy the source code and wrote a new code for same algorithm, Stac could only prove patent infringement in the Court but not copyright infringement as independent creation of the work is not copyright infringement. Patents can protect the basic concept of a software product, regardless of the actual source code but copyright only protects source code.
Before you decide between copyright and patent protection for the software product, it is essential to understand the difference between the two so that you are clear about what rights you are getting. Though both patent and copyright have their own pros and cons, it makes a lot of sense to consider registration process based on requirements.
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Aug 25, 2021 | Copyright
From Elbert Woods’ ‘Ickey Shuffle’ to Stephen Curry’s signature point to the sky in praise after scoring a three-point basket to the iconic ‘Sii!’ move adopted by Ronaldo, sports fans around the world have come to associate their favorite legends with their signature celebratory moves. This, accompanied by a shift of fan following from sport clubs or countries to individual players, has increased the popularity of these athletes and has paved the way for them to market their personality and captivate audiences both on and off the sports arena using uniquely choreographed dances or celebratory moves[i]. However, the problem arises when third parties feed off their popularity by attaching images or sketches of such celebrations to products such as water bottles or t-shirts, thereby unfairly taking advantage of the character that the athletes have worked so hard to create. A solution that presents itself is to allow signature sports celebrations to be protected under copyright law thereby preserving the uniqueness of the celebration and allowing athletes to commercially exploit their own creations, thereby allowing them financial gain especially considering that most of them have short-lived careers[ii].
Protection afforded to Dramatic Work
The primary objective of copyright protection is to encourage artists, craftsmen, musicians, and other creators to make their creations available for public welfare and enjoyment, by rewarding these creators with protection and property rights of and over their creations. The Indian Copyright Act, 1957 extends not only to literary and artistic works but also to dramatic work which includes choreographic moves that are “fixed in writing or otherwise but does not include a cinematograph film”[iii]. Therefore, it is a well-established principle of intellectual property jurisprudence that choreography can be afforded copyright protection. However, fixation is a criterion that must be mandatorily met for a dramatic work to be protected under copyright law and while Western Jurisprudence on fixation adopts a wide approach[iv], Indian Jurisprudence is narrow. The Indian Judiciary has held that a dramatic work can only be afforded protection under Copyright law if it fulfills the criteria of being fixed in writing or concretized in a literary format[v]. Additionally, in the case of Academy of General Education, Manipal and Ors. v. B. Malini Mallya, the Supreme Court emphatically held that a unique form of ballet could be copyrighted as a dramatic work only if reproduced in a literary format[vi]. This exclusion of fixation in the form of a video recording significantly hampers the rights of choreographers and performers who live in a technology driven world but can only claim copyright protection for their choreography if translated to a written format[vii]. However, performer’s rights have been elucidated under the Act and it protects against reproduction, broadcasting, or communication of original creations to the public without the consent of the creator[viii], thereby given “any person who makes a performance” an exclusive right over their creative expression[ix].
Sports Celebrations as Choreography
When Hennry Abromson decided to apply for copyright protection of a sports move called PS:I 1 created by long distance runner Peter Stine, a lot of critics pointed out that celebratory moves in sports may actually lack the qualifications to be considered a true choreography. While it may be reasonably assumed that a single move such as pointing up to the sky may be too insignificant to qualify as a complete choreography, a sequence of moves such as jumping into the air, spinning around and landing on a single foot may be long and complicated enough to meet the necessary qualifications. Interestingly, the European Court of Justice observed in the case of Karen Murphy v Media Protection Services Ltd[x]. that events in sports that have a unique and original character worthy of being protected alongside other forms of creative expression can be granted protection under Copyright law. Additionally, the United States Supreme Court observed that any expression that involves even a “modicum of creativity” shall qualify to be a work protectable by copyright thereby recognising that celebratory moves can be considered as choreography[xi].
Since a player’s celebratory moves take the form of a choreography and are unique and original expressions of their personality as well as passion for the sport, they fall within the purview of the Indian Copyright Act, and within the ambit of Copyright Law in general. Moreover, if dance routines and sequences can be translated into writing, as held in the Malini Mallya Case[xii], a sequence of moves adopted by sportspersons can also be reduced to writing thereby fulfilling both the narrow fixation test under the Indian law as well as the wider tests used in other countries. As a result, unique celebratory sports moves should be afforded copyright protection especially to protect the originality of well-known players from amateurs in the league and to expand the realm of Intellectual Property Jurisprudence in the country.
Is Copyrighting a Sports Celebration Worth It?
While there are definite positive aspects to copyrighting a unique sports celebration, its enforceability can pose a challenge especially considering the difficulty in determining the value of the expression which is a necessary requirement for the award of damages. Justice Holmes proposed a solution to this problem in the case of Bleistein v. Donaldson Lithographing Co[xiii], by observing that the public must be called to decide the value and public appeal of these moves rather than leaving it to persons strictly educated in the field of law and having little or no experience deciphering the true commercial value of creative expressions. However, the issue of proving actual damages will persist on the side of the registrant thereby diminishing the actual practical application of copyright registration for a unique sports move.
Conclusion
A thorough analysis of the copyright protection regime leads to the conclusion that celebratory moves in sports can be copyrighted because their protection is in consonance with the objectives of copyright law, and they generally fulfil the conditions of originality and fixation. Although athletes have previously shied away from copyrighting their moves, the large media coverage of major league sports now as well as the popularity and reputation of individual players, which can be marketed, may be the required nudge towards such a movement[xiv].
[i] Loren J. Weber, Something in the Way She Moves: The Case for Applying Copyright Protection to Sports Moves, 23 COLUM.-VLA J.L. & ARTS 317, 318 (2000).
[ii] Eldred v. Ashcroft, 537 U.S. 186, 212-13 (2003).
[iii] The Indian Copyright Act, 1957, §2(h), No. 14, Acts of Parliament, 1957 (India).
[iv] David Vaver & Pierre Sirinelli, Principles of Copyright Law, WIPO, (Jul. 2002), https://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf.
[v] Anupama Mohan v. State of Kerala, WP (C) No. 22790 of 2015.
[vi] Academy of General Education, Manipal and Ors. v. B. Malini Mallya, Civil Appeal No. 389 of 2008.
[vii] The Indian Copyright Act, 1957, §2(f), No. 14, Acts of Parliament, 1957 (India).
[viii] The Indian Copyright Act, 1957, §38), No. 14, Acts of Parliament, 1957 (India).
[ix] The Indian Copyright Act, 1957, §2(qq), No. 14, Acts of Parliament, 1957 (India).
[x] Karen Murphy v. Media Protection Services Ltd. (2007) EWHC 3091 (Admin).
[xi] Baltimore Orioles, Inc. v. Major League Baseball Players Ass ‘n, 480 U.S. 941 (1987).
[xii] Academy of General Education, Manipal and Ors. v. B. Malini Mallya Civil Appeal No. 389 of 2008.
[xiii] Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251-52 (1903).
[xiv] Hennry M. Abromson, The Copyrightability of Sports Celebration Moves: Dance Fever or just Plain Sick?, 14 Marq. Sports L. Rev. 571, 601 (2004).
Author: Rachel Thomas, Christ University
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May 7, 2018 | Copyright, Indian Patents Act 1970, IPR & Business
Copyright is a type of Intellectual Property (IP) that gives its owner the exclusive right to make copies of a creative work, usually for a limited time. In India, Copyright Act, 1957 and Copyright Rules 2013 cooperatively deal with the subject of Copyright.
Section 13 of the Copyright Act, 1957 allows Copyright protection for the following works:
- Original literary, dramatic, musical works
- Artistic work including photographs, sculptures, architectural work, painting, drawing, engravings or any such work of artistic craftsmanship;
- Cinematograph films
- Sound recordings
- Software, Computer programs and allied compilations (as part of literary work)
Registration of copyright is not mandatory as copyright is inherent and automatic right. When any of the abovementioned works takes birth, along with it comes copyright into the picture. Therefore, it isn’t mandatory to register copyright. However, registering copyright gives an extra layer of protection to such works. By having an existing record, the evidence of such an existing work is created. This makes legally proving the existence of copyright in a court of law, very easy. Matters of assignment, transfer of ownership, creating an authorized agent etc. is generally made easier when you have a registered copyright. With a registered copyright, the risks involved are less.
Authors have prima facie copyright protection. Section 2(d) of the Act lays down authors of works:
| Literary work |
Author of the work |
| Dramatic work |
Author of the script |
| Musical work |
Composer |
| Artistic work other than photographs |
Artist |
| Photograph |
Photographer |
| Computer-generated literary, musical, dramatic work, artistic work |
Person causing the creation of the work
|
| Cinematograph films |
Producer |
| Sound recording |
Producer |
Other than authors, owners or any authorized agent of the author, or any person/organization with exclusive rights over the work, obtained through a contract, can also enforce the copyright.
Copyright registration process
Chapter X of the Copyright Act, 1957 and Chapter XII of Copyright Rules, 2013 elucidate upon Copyright Registration. Registration involves the procedure of entering the particulars of a work in the Register of Copyrights. Copyright Register has 6 parts to it, each part pertaining to each type of work. The Register is arranged alphabetically, following Indexes and each part is maintained both physically and electronically. The work seeking copyright will be entered into the appropriate part of the Register, if it is deemed worthy of copyright protection.
To register a Copyright, the Registrar of Copyrights should receive an application for the same with prescribed fees. Form-XIV should be used for the Copyright registration application. If changes are to be made to an already existing copyright, then Form XV should be used. After receiving an application, the Registrar of Copyrights will then conduct an inquiry and decide accordingly.
Rule 70 of Copyright Rules 2013 lays down the particulars for Application for Copyright Registration.
- The Application should be made with Application Form (Form XIV), Statement of Particulars (SoP) and Statement of Further Particulars (SoFP).
- The Application is to be signed either by the author or the owner of the work. In case of owners, a NOC duly signed by the author shall be attached along with the application.
- The Application should be filed in the Copyright Office in person, by post or using the online filing facility available on the official website of the Copyright Office. The link for the same is provided here. https://copyright.gov.in/Default.aspx
- The Applicant has a duty to give notice (including such statements, particulars or enclosures used for the application) of making such an application to every person claiming or having an interest in the subject-matter of the copyright or contesting the applicant’s rights over such work.
- An inquiry will be conducted in case any objection is received by the Registrar within a period of 1 month, or if the Registrar is not convinced about the correctness of that application and/or details attached with it.
- An opportunity for a hearing will be given to the Applicant before rejecting the application.
- In case no objection is received within 30 days from the date of receipt of the application and if the Registrar is satisfied with the application and the particulars in it, the same will be entered in the Register.
- The Registration process comes to an end only when the work entered in the Register of Copyrights and the copy of such entry is made, signed and issued by the Registrar, Deputy Registrar or such authorised person. Such a copy will be sent to the concerned parties within a reasonable time.
- Application to register unpublished work shall be accompanied by 2 copies of the work
- Object code and source to be included in case of Computer programs
- In case of registering an artistic work capable of being used as a good, a statement indicating the same, along with a Certificate from the Registrar of Trade Marks proving that there is no registered Trade Mark that is identical or deceptively similar to such artistic work, or that no Trade Mark application for registration has been made by any person other than the applicant.
- For artistic works capable of being a registered Design, applications for copyright registration shall be accompanied by affidavits stating if such an item has been registered under the Designs Act, 2000, if there has been an application of the work to any article under industrial process and if it has been reproduced more than 50 times.
Statement of Particulars (SoP)
Statement of particulars to be attached with Application form shall include the following details:
- Name, Address and Nationality of the Applicant
- Name, address and nationality of the Author. In case the author is deceased, the date of his demise
- Names, address and nationalities of the owners of the various rights comprising the copyright in the work and the extent of rights held by each, together with particulars of assignment and licenses, if any
- Names, addresses and nationalities of other persons, if any, authorized to assign or license the rights comprising the copyright
- Nature of the applicant’s interest in the copyright
- Class, description, title of the work
- Language of the work
- Whether work is Published or Unpublished
- In case of a published work, Year and country of first publication with name, address and nationality of the publishers. Additionally, Years and countries of subsequent publications with details of publishers.
- In case of an “artistic work”, the location of the original work, including name, address and nationality of the person in possession of the work. (Year of completion to be included in the case of an architectural work)
- Certificate from Registrar of Trade Marks for artistic work capable of being used as goods
- For an artistic work that could potentially be registered as a Design, details showing if it has been registered under Designs Act, if it has been applied to any article by an industrial process, and the number of times it has been reproduced.
- Other remarks
- Registration number (entered by Copyright Office).
Statement of further particulars (SoFP)
SoFP is to be included with the application for registering literary (including computer programs and software), dramatic, musical and artistic works only. It contains details such as:
- If the work is original / If work is the translation of a work is available in the public domain, or translation of a copyrighted work / If it is an adaptation of a work in the public domain or of a work in which copyright subsists
- In case the work is a translation or adaptation of a copyrighted work-
(a)Title, Language of the work, (b) Name, address, nationality of the author of the original work and date of death in case of a deceased author (c) Name, address, nationality of the publisher, if any, of the original work (d) Documents proving authorization for a translation or adaptation including the name, address and nationality of the party authorizing.
Fees
Rule 83 of the Copyright Rule, 2013 lays down that Schedule Two contains the specificities of the registration fees.
| Work |
Fee per work |
In case of changes in particulars |
| Literary, Dramatic, Musical or Artistic Work |
Rs. 500 |
Rs. 200 |
| Literary or Artistic work, capable of being used in relation to any goods |
Rs. 2000 |
Rs. 1000 |
| Cinematograph Film |
Rs. 5000 |
Rs. 2000 |
| Sound Recording |
Rs. 2000 |
Rs. 1000 |
Payment of such prescribed fee can be done in various ways. By postal orders or bank drafts issued by a Scheduled Bank under Reserve bank of India Act, 1934, as a deposit into a Government Treasury, through payment gateway provided with the online-filing facility of the Copyright Office Website etc. are some of the ways prescribed under Rule 83.
Few examples of registered copyrights
| Title of the work |
Type of Work |
Issued on |
Applicant |
| To hell with Corona |
Literary/ Dramatic |
5/1/2021 |
Bhanu Arora |
| Andy |
Artistic |
9/12/2020 |
Aum international Studios Pvt. Ltd. |
| Lead Management Distribution Methodology |
Computer Software |
8/6/2019 |
R Varadarajan |
| Bachpan Theher Jaa |
Sound Recording |
6/9/2018 |
Vrinda Parwal |
| Tere Ishq ki Aadat |
Cinematograph film |
30/10/2017 |
Mohd. Farman |
Author: Bhavana B, School of Law, CHRIST (Deemed to be) UNIVERSITY, Bangalore
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May 16, 2011 | Copyright
Copyright is a legal term used with respect to the rights that an author has over his work like literary, dramatic, or artistic work, etc. In India, the law related to copyright is governed under the Copyright Act, 1957 (the Act). Section 14 of the Copyright Act 1957 states, “Copyright means the exclusive right to do or authorize the doing of certain acts in respect of works such as literary, dramatic, musical, artistic, cinematography, sound recording, to do acts of reproduction of the work, issuing copies of the work, and to perform the work or communicate the work to the public.”
All subject matters protected by copyright are called “works”. Such works are mentioned under Section 13 of the act, as below:
Original Literary work
Example: Works such as books, magazines, articles, journals, etc.
Dramatic work
Example: Composition, choreography, drama, poems, etc.
Musical work
Example: Work which consists of music, its graphical notations, and combinations; its composition.
Artistic work
Example: Paintings, Sculpting’s, graphics, etc.
Cinematographic films
Example: Movies, or any other work with audio and visual effects.
Sound recordings
Example: Person Playing a song or musical instrument.
Rights of Copyright Owner
The creator of the original work is considered as “the author” of the work, under the act, the author is considered the first owner of the work. To prevent others from using the original work, the author possesses certain rights such as, to claim compensation for the infringement of his work. There are two types of rights that an author usually possesses, such as:
Economic rights
- The right to reproduce,
- The right to make adaptations of the work,
- The right to distribute,
- The right to perform the work publicly,
- The right to broadcast the work,
- The right to rent the work.
Under the Copyright Act, 1957, Section 14 enumerates these rights for the subject matters of copyright;
- In case of literary, dramatic, or musical work which exclusive of computer program [Section 14(a)]
The exclusive rights include the right to do:
- Reproduction of the work in any material form which includes electronic form,
- To issue copies of the work to the public which are not already in circulation,
- To perform or communicate the work to the public,
- To make a cinematographic film or sound recording in respect of the above-mentioned works,
- To translate such work,
- To make adaptations of such work,
- to do, about a translation or an adaptation of the work, any of the acts specified concerning the work in sub-clauses (i) to (vi).
- In the case of Computer Programmes [Section 14(b)]
In addition to the above exclusive rights, mentioned under section 14 (a), additional rights include the right to sell, commercially rent or offer to sell or commercially rent the program.
The rights of the author under section 14 (c) include the right:
- To reproduce the work in any material form including electronic form. This includes work depicted in two or three dimensions,
- Includes the right to communicate the work to the public,
- Includes the right to issue copies of the work to the public,
- Includes the right, to include the work in any cinematographic film,
- Includes the right to make adaptations of the work.
The rights of the author under section 14 (d) include the right:
- To make copies of the film or a photographic image of the forming part,
- Storing of it in any medium by electronic or other means,
- To sell or commercially rent the work,
- To communicate the work to the public.
The rights of the author under section 14 (e) include the right:
- To make any other sound recording embodying the original work and storing it in any medium,
- To sell or commercially rent the recording,
- To communicate the recording to the public.
Moral Rights
They are special rights of the author and are independent of the author’s economic rights. Even after the transfer of the economic right, the author still has his moral rights, such as:
It is the right that instills the right to assert the authorship of the work and prevent others from claiming authorship of the work.
Through this right, the author can object to any distortion, modification, or mutilation of his work.
Copyright Infringement
Copyright Infringement is the utilization or production of a material, which is copyrighted without the permission of the copyright holder. In other words, copyright infringement is the breach of rights that are granted exclusively to the owner of the copyrighted material.
Section 51 of the Copyright Act 1957 defines infringement. It deems that the copyright in a work is infringed if:
- When any person, without a license granted by the owner or registrar of copyright under this act or contravenes the conditions of a license granted or of any conditions imposed by an authority which is competent under this act:
- Does anything, which under this act, only the owner is allowed to do or has the exclusive right to do, or
- Permits for profit, communication of the work to the public where such communication would amount to infringement unless he is not aware and had reasonable ground to believe that such communication to the public would not amount to infringement.
When any person,
- Makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- Distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- By way of trade exhibits in public, or
- Imports into India (provided that, this sub-clause shall not apply for import of one copy of any work for the private and domestic use of the importer),
Any infringing copies of the work.
In the case of K R Venugopala Sarma v. Sangu Ganesan, it was held that “one picture can be said to be a copy of another picture only if a substantial part of the former picture finds a place in the reproduction and the copy must suggest that it is the appellant’s picture”.
In another case, Wadia Movie Tone Pvt Ltd v. Vishal Bharadwaj the Character in the Film Rangoon, “Janbaaz Julie” was claimed as substantial copying of the character “Fearless Nadia” in the Film “Hunterwali” (1930). The court held the defendants guilty of infringement and ordered Rs. 2 Crore as a Bank Guarantee.
Fair use/Fair Dealing Doctrine
Fair use is a legal doctrine that permits a person to make use of any work to maintain the originality and sanctity of the work.
In congruence with the copyright laws of the UK, India has adopted the concept of Fair Dealing. The same is referred to as fair use in the US copyright Laws.
The meaning of fair dealing depends on different facts and circumstances of the case. In India, the court determines the applicability of the doctrine based on the nature, facts, and circumstances of the case. The doctrine has been usually determined keeping in mind the economic impact that the usage of copyrighted work has on the owner. In cases where the impact has not been significant, the act can constitute fair dealing. The nature of fair dealing depends on four factors:
If the work was used for reviewing, commenting, criticizing, etc, then the doctrine is applicable.
The characteristics of the work, the content of the work is also important in determining the applicability of the doctrine.
The quality and quantity of the work are important in determining the applicability of the doctrine.
- Effect of the work on the original work
The effect the copied work has on the original work, i.e., to what extent can the original work be harmed, is also important in determining the applicability of the doctrine.
Fair dealing has been covered under Section 52 of the Copyright Act, 1957. This section allows the defense of fair dealing for certain purposes, such as:
Fair dealing with any work, not being a computer programme for the purposes of-
- Private and personal use, including research;
- Criticism or review, whether of that or any other work;
- The reporting of current affairs, including reporting of lectures delivered in public.
The transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;
- The reproduction of a work for the purpose of judicial proceeding or for the purpose of a report of a judicial proceeding;
- The reading or recitation in public of reasonable extracts from a published literary or dramatic work;
- The reproduction of any work in a certified copy or supplied in accordance with any law for the time being in force;
- The reproduction of any work-
- By a teacher or a pupil in the course of instruction; or
- As a part of the questions to be answered in an examination; or
- In answers to such questions;
The performance of a literary, dramatic, or musical work by an amateur club or society, if the performance is given to a non-paying audience, or for a benefit or a religious institution.
In addition, the court also relies on precedents along with the facts and circumstances of the case to determine the applicability of the doctrine.
Some cases related to fair dealing;
In this case, the Court considered that a parody did not constitute an infringement of copyright as long as it has not been misused or misappropriated.
In this case, it was held that since the defendant’s book was not criticism or review, none of the exceptions under Section 52 could be attracted and that the defendant’s actions amounted to copyright infringement.
In this case, the court held that, “To constitute a fair dealing there must be no intention on the part of the alleged infringer, to compete with the copyright holder of the work and to derive profits from such competition and also, the motive of the alleged infringer in dealing with the work must not be improper.”
Through Fair use, the accused can defend their work against infringement claims for the purposes covered under the Copyright Act, 1957. In India, this concept has managed to provide an exhaustive list of exceptions to the claim of infringement under Section 52 of the act. The ambit of this concept is mostly based on interpretations. Many cases, as observed have had decisions made with due regards to the facts and circumstances of the case in hand.
Author: Amulya Bhat, Symbiosis Law School, Hyderabad
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