Many entrepreneurs and MSMEs are ignorant about the concept of copyright, and filling and registration procedures related to copyright protection. Prima facie, copyright seems to be a difficult concept to comprehend and the procedure, just like any other bureaucratic procedure, seems to be complex. This article will outline some of the basic facts about copyright law and answer some of the common questions like ‘What is copyright?’ and ‘What amounts to copyright infringement?’ etc. This article will focus on the core fundamental issues related to copyright law, and help you understand effective use of copyright for businesses as part of IP strategy. A follow up of this article will be a post, which will explain the procedure of copyright registration in India.
Introduction to Concept of Copyright
1. What is copyright?
Copyright is a form of intellectual property right that protects original artistic works, including work of authors, such as literary, dramatic, musical and other artistic works. It protects the interests of owners of artistic work against those who ‘copy’. It is important to note that, copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. For legal reference read – section 14 of Copyright Act, 1957, explaining the meaning of copyright.
2. Subject matter of copyright?
Subject matter of copyright can be divided into:
- Literary works – Poems, short stories, novels, and any other writings; whether fiction or non-fiction; whether handwritten, printed or typed; whether published or unpublished.
- Musical works – Serious or light songs, choruses, operas, musicals, operettas; whether one instrument or more instruments – sonatas, chamber music, bands, orchestras etc.
- Artistic works – Two–dimensional–(drawings, paintings, etching, lithographs etc) or three–dimensional (sculptures, architectural works etc); maps or technical drawings.
- Photographic works – Portraits, landscapes, current events etc.
- Motion pictures – Cinematographic works; whether silent or with soundtrack.
- Works of applied art – Artistic jewelry, lamps wallpapers, furniture etc.
- Choreographic works, phonographic records, tapes and broadcasts.
- Software works – Codes etc.
3. Copyright as a strategic business tool
What many entrepreneurs don’t know is that copyright may be used as an important source of income for their businesses. If your business owns a copyright in any piece of work, for instance, let’s say an advertising jingle, technical manual or a magazine article – then you can control its commercial use completely and avoid its misuse by competitors. For example, you can easily charge every time if someone uses your jingle for radio show or downloads your manual from the internet or reprints your magazine article etc. Copyright is a type of intellectual property right and like other property rights it can be sold or licensed. It can also be transferred and inherited. Today, copyright owners are coming together to form collective societies that work on their behalf to collect royalties by issuing licenses.
4. Is copyright assignable?
Yes, copyright is assignable. The owner of the copyright of an existing work or the prospective owner of the copyright can assign to any person the copyright either wholly or partially.
5. What amounts to infringement of copyright?
There are chances that you might have to face heavy penalty if you infringe a copyright; whether you use it fully or use its ‘substantial part’, without copyright owner’s permission. Therefore, it is advisable not to copy a work, sell, rent or lend copies of work to the public, broadcast that work or make adaptation of the work; all these are strictly forbidden. Some of the common copyright infringements are –
- Putting up infringing copies for sale or hire
- Permitting any performance which constitutes infringement of copyright work in public
- Distributing infringing copies for the purpose of trade
- Public exhibition of infringing copies by way of trade
- And last but not the least, importation of infringing copies into India
6. What are the forms of copyright infringement?
Most common form of copyright infringement in businesses is – Software misuse. Generally, people easily make illegal copies of software, which also amounts to breach of software license. Another common form is to play copyrighted music in the public, whether recorded or broadcast, without obtaining license for it.
7. Is copyright infringement a criminal offence?
Yes, if any person knowingly commits an act of copyright infringement for any work, he/she commits a criminal offence under section 63 of the Copyright Act. If you infringe copyright, you could be taken to court and as well as be asked to pay damages or compensation to the owner of the work. There are chances, you might also face injunction against you, in order to stop you from using the copyrighted material.
8. Infringement Precedents – India
- Software copyright infringement case – SAP Aktiengesellschaft & Anr. v. Mr. Sadiq Pasha [CS(OS) No. 255/2005] – The case was decided by the Delhi High Court, in the favour of the plaintiffs. The defendant was ordered to pay punitive damages amounting to rupees one lakh to the plaintiffs. The facts of the case are that first plaintiff is a German company and the second plaintiff is its Indian subsidiary. The plaintiffs claimed that the first plaintiff had developed certain programmes- namely SAP R/2 and SAP R/3, which were highly customized and off the shelf programmes. The plaintiffs alleged that the defendant’s company offered training for the plaintiffs’ software in Bangalore and claimed that they had no legal right to use their software and provide the concerned training, as they had not granted the defendant any license to use their software.
- In Apple Computer Inc v Mackintosh Computers [2 S.C.R. 209, 20643, 20644 (S.C.C. 1990)], the court held that it was an infringement of the copyright in a literary, dramatic, musical work to reproduce the work in computer-readable form, such as on magnetic tape.
- In Gramaphone Company of India Ltd v Super cassette industries Ltd [1995 IIAD Delhi 905, 1995 (1) ARBLR 555 Delhi], the defendant launched a version recording of the songs of popular Hindi film – Hum Apke hain kaun. Plaintiff raised the contention that the defendant by creating the version recording infringed the copyright of the musical work in the film. High Court granted an injunction restraining the sale of the version recordings when the owner of copyright responded to the party proposing to make the sound recording and expressly refused permission.
- In a recent case from Bollywood, music composer Annu Malik has accused another music composer, Pritam Chakraborty of plagiarism for the song “Character Dheela Hai”, part of the soundtrack of the film Ready, starring Salman Khan. Anu Malik claims that the song is a copy of his composition of “Mohabbat naam hai kiska” from the 2001 Akshaye Kumar, Kareena Kapoor starrer Ajnabee. This accusation, if proved, will be a gross violation of the Copyright Act 1957, which protects the composer from such plagiarism.
TO FOLLOW: THE PROCESS OF COPYRIGHT REGISTRATION IN INDIA