Anuhuj Dhingra Law Office

  FAQ



COPYRIGHT FAQ's

  1. What is Copyright?
  2. Is it compulsory to have registration for copyright protection?
  3. What are the criteria for award of copyright protection?
  4. Does the copyright law protect the ideas of the author and the future commercial expressions of the same idea?
  5. What type of creative work does copyright protect?
  6. How long does copyright last?
  7. Is copyright protection worldwide?
  8. What are the various international Treaties relating to the Copyright?
  9. What work should I protect?
  10. What is the benefit of protecting my work?
  11. Can I transfer my copyright?
  12. Can a company be considered the author? Can an author and owner be different from one another?
  13. Who is an author?
  14. What are the rights of an author?
  15. How much do I have to change in order to claim copyright in someone else's work?
  16. What are the authorities created under the Copyright Act?
  17. Is it possible for other people to use the copyrighted work even without the consent of the owner?
  18. What are the remedies in case of an infringement of copyright?

1. What is Copyright?

Copyright is a legal right, given exclusively to the creator/originator (or assignee) to make further copies for publication and public performance.

2. Is it compulsory to have registration for copyright protection?

No, it is not compulsory to register Copyright. Berne Convention grants “inherent protection” which means the holder does not have to comply with any formalities for the purposes of copyright protection.

But we recommend you to obtain registration because registration is a prima facie proof of ownership and it might be easier to persuade judicial and administrative authorities to grant you interim relief even without notice to the infringers.

3. What are the criteria for award of copyright protection?

Copyright protection will be available if the following two conditions are fulfilled:

  1. Originality, meaning that the work owes it origin to the author. Originality is different from novelty. An author of the work need not be the first to articulate the ideas or create the work.
  2. Reduction into tangible form. For a work to be protected, it must be written down, drawn, painted or taped. Mere oral expression of idea will not qualify for copyright protection.

4. Does the copyright law protect the ideas of the author and the future commercial expressions of the same idea?

No. The copyright law does not protect the idea and protects only the method of expression of idea. If an idea can only be expressed in a single way, such expressions cannot be protected under the Law of Copyright. Future commercial expressions of the idea cannot be protected under the Law of Copyright and it can be protected only under the Law of Patent.

5. What type of creative work does copyright protect?

Categories of works of authorship can include but are not limited to; Literary, Dramatic (including accompanying music) and Musical (including accompanying words or lyrics), Choreographic (including Pantomimes), Pictorial, Graphic, Sculptural, Computer Programs, Motion Pictures, Audiovisual and Sound recordings and Architectural works.

The subject matter of Copyright is generally described as an original creation of authorship that must be fixed in a tangible medium of expression. The works as now known or as later developed, must exist in some physical form. Virtually any form of expression will act as a tangible medium from which they can be reproduced or communicated, directly or using a machine or a device.

6. How long does copyright last?

The duration of the protection depends on the type of copyright.

In case of ‘literary work’ Copyright lasts for the life span of the author and for sixty years after the author's death.

The same principle applies to joint authorship (two or more), with the copyright lasting for the life span of the longest surviving author and sixty years after the longest surviving authors death.

In the case of anonymous and psydonoumous work the copyright will subsist for sixty years from the date of publication.

Copyright in photographs will subsists for sixty years from the next calendar year of publication.

Copyright for cinematographic films will be sixty years from the next calendar year of publication.

Copyright for sound recording will be sixty years from the next calendar year of publication.

7. Is copyright protection worldwide?

Most countries have acts of law relating to intellectual property and copyright issues with regard to their citizens rights. These countries are usually signatories to the numerous world treaties and agreements on copyright. Copyright laws are fairly similar worldwide. Many countries insist that for a work to be protected in their territories, there must be a publication within their territory within one year of the first publication. This requirement can be complied with by sending an e-mail with the attachment of the protected work to an addressee in other territories.

8. What are the various international Treaties relating to the Copyright?

There have been numerous international copyright conventions some of which include;

Universal Copyright Convention at Geneva in 1952.

Universal Copyright Convention as revised at Paris on 24th July 1971.

Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24th July 1971 as amended on September 28th 1979.
[Note: The first Berne Convention was on September 9th 1886]

WIPO World Intellectual Property Organization Diplomatic Conference Geneva, December 2 to 20, 1996

WIPO Copyright Treaty of December 20th 1996

WIPO Performances and Phonograms Treaty of December 20th 1996

The World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights, Final Act Marrakech on 15th April 1994.

9. What work should I protect?

You should protect everything that you create and which you consider to be of value to you, or yours, now or in the future. If it is worth creating and if others would find it worthy of copying then it is worth protecting.

10. What is the benefit of protecting my work?

Once your creation has been fixed in a tangible medium of expression the copyright on your work is protected by copyright law. By registering your copyright you will have irrefutable proof of first ownership of your intellectual property. This proof can be used in a court of law in alleged cases of copyright infringement. When faced with an alleged case of copyright infringement you need this proof. Proving the date of creation can be a problem. Copyright registration can make the proof on this point a lot easier. By registering it you will have an individually numbered certificate of registration of copyright relating to that particular copyright work.

11. Can I transfer my copyright?

Copyright can be 'assigned' (sold or given away) by the execution of a written document signed by the copyright owner. It is also possible for you to grant a copyright license, for a limited period of time, for specified forms of reproduction and merchandising, and in limited countries throughout the world. It can be for a specified flat fee or royalty, or both. In this way, you keep the copyright, and control over the merchandising, and still generate income, with the client also achieving their commercial aims.

12. Can a company be considered the author? Can an author and owner be different from one another?

A company can never be considered as an author of a work. However, it can become the owner, if the author creates the work within the scope of an employee's duties. A distinction between contract of employment and contract for services. In the first case the employer becomes the owner and in the second case the author becomes the owner.

13. Who is an author?

Under the copyright law, the creator of the original expression in a work is its author. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer or commissioning party is considered to be the author.

14. What are the rights of an author?

If the owner of the work is different from the author, the author will be eligible for the “moral rights” of the author. These rights include the right to be identified as an author and the right against the mutilation of the copyrighted work.

15. How much do I have to change in order to claim copyright in someone else's work?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create a new version of that work. Accordingly, you cannot claim copyright to another's work, no matter how much you change it, unless you have the owner's consent.

16. What are the authorities created under the Copyright Act?

Under the Copyright Act there is a Registrar of Copyright and a Copyright Board, which specifically ascertain roles and responsibilities.
Copyright Office is an Administrative Authority and Copyright Board is a quasi–judicial body headed by a retired Supreme Court Judge.

17. Is it possible for other people to use the copyrighted work even without the consent of the owner?

Yes. But before that they would have to apply to the Copyright Board and obtain a Compulsory License. The Board will determine the terms and conditions under which the other person can get a compulsory license.

In addition, the Section 52 lays down that certain types of uses of Copyright will not amount to a copyright infringement.

For your information the Section 52 runs into 5 pages in fine print and hence it is advisable to consult an attorney.

18. What are the remedies in case of an infringement of copyright?

The Law provides civil and criminal remedies in case of infringement of copyright. Copyright infringement is a cognizable offence where a Police Officer not below the Rank of a Sub-Inspector can arrest the offender without the warrant and conduct the search even without prior authorization of a Court.

Copyright infringement if proved in a Court of Law carries a minimum mandatory sentence of imprisonment of six months and minimum fine of Rs. 50,000 which can extend upto Rs. 2 lakh. The Act further provides that there will be an enhanced penalty in case of second and subsequent convictions.

In Civil Cases, the District Court can be persuaded not only to give an interim injunction without notice to the other party but also usually gives a direction under Order 39 Rule 7 of C.P.C. where a Commissioner appointed by the Court will visit the premises of the infringers and will be empowered to conduct a search of the inventors premises and cease infringing material from the infringers premises. The seized material can be used at a later point of time to establish infringement.

In UK these types of orders are called ANTON PILLOR ORDERS.

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