INTRODUCTION
Copyright Law in India-
The Copyright Act, 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994, 1999 and 2012. The Copyright (Amendment) Act, 2012 is the most substantial. The main reasons for amendments to the Copyright Act, 1957 include to bring the Act in conformity with WCT and WPPT; to protect the Music and Film Industry and address its concerns; to address the concerns of the physically disabled and to protect the interests of the author of any work; Incidental changes; to remove operational facilities; and enforcement of rights.
Some of the important amendments to the Copyright Act in 2012 are extension of copyright protection in the digital environment such as penalties for circumvention of technological protection measures and rights management information, and liability of internet service provider and introduction of statutory licences for cover versions and broadcasting organizations; ensuring right to receive royalties for authors, and music composers, exclusive economic and moral rights to performers, equal membership rights in copyright societies for authors and other right owners and exception of copyrights for physically disabled to access any works.
Prior to the Act of 1957, the Law of Copyrights in the country was governed by the Copyright Act of 1914. This Act was essentially the extension of the British Copyright Act, 1911 to India. Even the Copyright Act, 1957 borrowed extensively from the new Copyright Act of the United Kingdom of 1956. The Copyright Act, 1957 continues with the common law traditions. Developments elsewhere have brought about a certain degree of convergence in copyright regimes in the developed world.
The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions.
The two Internet Treaties were negotiated in 1996 under the auspices of the World Intellectual Property Organization (WIPO). These treaties are called the ‘WIPO Copyrights Treaty (WCT)’ and the ‘WIPO Performances and Phonograms Treaty (WPPT)’. These treaties were negotiated essentially to provide for the protection of the rights of copyright holders, performers and producers of phonograms in the Internet and digital era.
India is not a member of these treaties; amendments are being mooted to make Act in compliant with the above treaties in order to provide protection to copyright in the digital era. Though India is not a member of the WCT and the WPPT, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. The provisions of the Act is also in harmony with two other new WIPO treaties namely, the Beijing Audiovisual Performers treaty, 2012 and the Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired or Otherwise Print Disabled Persons, 2013.
The Copyright Rules, 2013 was notified on 14 March, 2013 replacing the old Copyright Rules, 1958. The Rules, inter alia, provide for procedure for relinquishment of Copyright; grant of compulsory licences in the matter of work withheld from public; to publish or republish works (in certain circumstances); to produce and publish a translation of a literary or dramatic work in any language; licence for benefit of disabled; grant statutory licence for cover versions; grant of statutory licence for broadcasting literary and musical works and sound recordings; registration of copyright societies and copyright registration.[1]
Definition of Copyright
Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.[2] The scope and duration of protection provided under copyright law vary with the nature of the protected work.
In a 2016 copyright lawsuit, the Delhi High Court states that copyright is “not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather stimulate activity and progress in the arts for the intellectual enrichment of the public. Copyright is intended to increase and not to impede the harvest of knowledge. It is intended to motivate the creative activity of authors and inventors in order to benefit the public.”[3]
Registration of Copyright
In India, the registration of copyright is not mandatory as the registration is treated as mere record of a fact. The registration does not create or confer any new right and is not a prerequisite for initiating action against infringement. The view has been upheld by the Indian courts in a catena of judgments. It is important to note here that there is no prescribed time limit within which registration of a copyright can be obtained. However, presently the registration of a copyright may take a period of 1 to 1 ½ years.
Need for Registration of Copyright
The awareness of Intellectual Property (IP) Laws is considerably low among the enforcement authorities in India, and most of the IP litigation is confined to metropolitan cities. It is to be noted that awareness of Intellectual Property (IP) Laws is considerably low even among the enforcement authorities in India, and most of the IP litigation is confined to metropolitan cities. It is always advisable to register the copyright as the copyright registration certificate is accepted as a proof of ownership in a Court of law and Police authorities, and acted upon smoothly by them.
Enforcement of Copyright in India
The law of copyright in India not only provides for civil remedies in the form of a permanent injunction, damages or accounts of profits, delivery of the infringing material for destruction and cost of the legal proceedings. etc. but also makes instances of infringement of copyright, a cognizable offence punishable with for a term which shall not be less than six months but which may extend to three years with a fine which shall not be less than INR 50,000 but may extend to INR 2,00,000. For the second and subsequent offences, there are provisions for enhanced fine and punishment under the Copyright Act. The (Indian) Copyright Act, 1957 gives power to the police authorities to register the Complaint (First Information Report, i.e., FIR) and act on its own to arrest the accused, search the premises of the accused and seize the infringing material without any intervention of the court.
Protection to Foreign Works in India
Copyright of “works” of foreign nationals, whose countries are a member of Convention Countries to which India is a signatory, are protected against any infringement of their “works” in India through the International Copyright Order, 1999. The Indian Courts have also been pro-active for the protection of Copyright of foreign authors/owners, which includes software, motion pictures including screen play of motion pictures and database.
The Government of India is also taking the initiative to combat piracy in the software industry, motion pictures and the music industry along with players in the industry through their associations and organizations like NASSCOM (National Association of Software and Service Companies), NIAPC (National Initiative Against Piracy and Counterfeiting) etc.
Licensing and Assignment of Copyright
Copyright in any work, present or future, can only be assigned or licensed in writing by the copyright owner or his duly authorized agent.
Duration/Term of Copyright
In the case of original literary, dramatic, musical and artistic works, the duration of copyright is the lifetime of the author or artist, and 60 years counted from the year following the death of the author.
In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organizations are protected for a period of 60 years which is counted from the year following the date of publication.[4]
Exceptions to copyright infringement in India
The Copyright Act 1957 exempts certain acts from the ambit of copyright infringement.[5] While many people tend to use the term fair use to denote copyright exceptions in India, it is a factually wrong usage. While the US and certain other countries follow the broad fair use exception, India follows a different approach towards copyright exceptions. India follows a hybrid approach that allows-
- fair dealing with any copyrighted work for certain specifically mentioned purposes5 and
- certain specific activities enumerated in the statute.
While the fair use approach followed in the US can be applied for any kind of uses, the fair dealing approach followed in India is clearly limited towards the purposes of
- private or personal use, including research, and education,
- criticism or review,
- reporting of current events and current affairs, including the reporting of a lecture delivered in public.5
While the term fair dealing has not been defined anywhere in the Copyright Act 1957, the concept of ‘fair dealing’ has been discussed in different judgments, including the decision of the Supreme Court of India in Academy of General Education v. B. Malini Mallya (2009) and the decision of the High Court of Kerala in Civic Chandran v. Ammini Amma.[6]
In September 2016, the Delhi High Court ruled in Delhi University’s Rameshwari Photocopy Service shop case, which sold photocopies of chapters from academic textbooks was not infringing on their publisher’s copyright, arguing that the use of copyright to “stimulate activity and progress in the arts for the intellectual enrichment of the public” outweighed its use by the publishers to maintain commercial control of their property. However, in December 2016, the ruling was reversed and taken back to court, citing that there were “triable issues” in the case.[7]
Remedies available against copyright infringement in India
The Copyright Act 1957 provides three kinds of remedies – administrative remedies, civil remedies and criminal remedies. The administrative remedies provided under the statute include detention of the infringing goods by the customs authorities.[8] The civil remedies are provided under Chapter XII of the Copyright Act 1957 and the remedies provided include injunctions, damages, and account of profits.[9] The criminal remedies are provided under Chapter XIII of the statute and the remedies provided against copyright infringement include imprisonment (up to 3 years) along with a fine (up to 200,000 Rupees).[10]
Jurisdiction [Place of Suing] Under Copyright Act, 1957 – Recently in 2015 the Jurisdiction law regarding Copyright Violation has gone a drastic change by the following judgment of the Hon’ble Supreme Court – Jagdish Singh Khehar and Arun Mishra, JJ. – Civil Appeal Nos. 10643 – 10644 of 2010 with 4912 of 2015 [arising out of SLP [c] No. 8253 of 2013], Dated 01/07/2015 – Indian Performing Rights Society Ltd. Vs. Sanjay Dalia and another – – Copyright Act [14 of 1957], Section 62 – Trade Marks Act [47 of 1999], Section 134 – Civil Procedure Code Section 20 – Suit for infringement of Copyright of Trade Mark – Place of suing – Place where plaintiff resides or carries on business or works for gain – Is an additional forum made available to plaintiff by Section 62 of 1957 Act and Section 134 of 1999 Act – Applicability of Section 20 of Civil Procedure Code is not completely ousted thereby – If cause of action has arisen wholly or in part in place where plaintiff resides or is doing business suit has to be filed at such place – Plaintiff cannot drag defendant to far off place under guise that he carries business there also. — Interpretation of statutes – Mischief Rule – Construction that suppresses even counter mischief has to be adopted. – Interpretation of statutes – words notwithstanding anything contained in any other law – do not always completely exclude the applicability of other law. —- Words and phrases – “Notwithstanding anything contained — being in force” – Do not necessarily exclude the applicability of other law. If
If cause of action has arisen wholly or in part in place where plaintiff resides or is doing business suit has to be filed at such place – Plaintiff cannot drag defendant to far off place under guise that he carries business there also. — Interpretation of statutes – Mischief Rule – Construction that suppresses even counter mischief has to be adopted. – Interpretation of statutes – words notwithstanding anything contained in any other law – do not always completely exclude the applicability of other law. —- Words and phrases – “Notwithstanding anything contained — being in force” – Do not necessarily exclude the applicability of other law. If
If cause of action has arisen wholly or in part in place where plaintiff resides or is doing business suit has to be filed at such place – Plaintiff cannot drag defendant to far off place under guise that he carries business there also. — Interpretation of statutes – Mischief Rule – Construction that suppresses even counter mischief has to be adopted. – Interpretation of statutes – words notwithstanding anything contained in any other law – do not always completely exclude the applicability of other law. —- Words and phrases – “Notwithstanding anything contained — being in force” – Do not necessarily exclude the applicability of other law.
Cases-
In Eastern Book Company v Navin J.Desai, the question involved was whether there is any copyright in the reporting of the judgment of a court. The Delhi High court observed: It is not denied that under section 2(k) of the Copyright Act, a work which is made or published under the direction or control of any Court, tribunal or other judicial authority in India is a Government work. Under section 52(q), the reproduction or publication of any judgment or order of a court, tribunal or other judicial authority shall not constitute an infringement of copyright of the government in these works.
It is thus clear that it is open to everybody to reproduce and publish the government work including the judgment/ order of a court. However, in case, a person by extensive reading, careful study and comparison and with the exercise of taste and judgment has made certain comments about judgment or has written a commentary thereon, may be such a comment and commentary is entitled to protection under the Copyright Act”.[11]
The court further observed: In terms of section 52(1)(q) of the Act, reproduction of a judgment of the court is an exception to the infringement of the Copyright. The orders and judgments of the court are in the public domain and anyone can publish them. Not only that being a Government work, no copyright exists in these orders and judgments. No one can claim copyright in these judgments and orders of the court merely on the ground that he had first published them in his book. Changes consisting of elimination, changes of spelling, elimination or addition of quotations and corrections of typographical mistakes are trivial and hence no copyright exists therein.
In Godrej Soaps (P) Ltd v Dora Cosmetics Co, the Delhi High Court held that where the carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff is the assignee and the legal owner of copyright in the carton including the logo.
Conclusion:
The provisions of the above-mentioned enactment show that the Copyright protection in India is strong and effective enough to take care of the Copyright of the concerned person. The protection extends not only to the Copyright as understood in the traditional sense but also in its modern aspect. Thus, online copyright issues are also adequately protected, though not in clear and express term. To meet the ever-increasing challenges, as posed by the changed circumstances and latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered.
This can be achieved by applying the purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in the protection of these rights, including the copyright. The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement.
References-
[1] http://copyright.gov.in/
[2] http://www.wipo.int/wipolex/en/text.jsp?file_id=352024 (WIPO Lex)
[3] “Indian Court Says ‘Copyright Is Not An Inevitable, Divine, Or Natural Right’ And Photocopying Textbooks Is Fair Use”. Techdirt. Retrieved 19 September 2016.
[4] http://www.mondaq.com/india/x/406982/Licensing+Syndication/Copyright+Law+In+India
[5] Sec. 52 of the Copyright Act 1957
[6] N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property (Eastern Book Company 2014)369-393
[7] “DU photocopy case: court restores copyright suit by publishers for trial”. The Hindu. Retrieved 14 May 2017.
[8] Sec. 53 of the Copyright Act 1957
[9] Sec. 55 of Copyright Act 1957
[10] Secs. 63 and 63A of the Copyright Act 1957
[11] http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html
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