June 23, 2022 In Intellectual Property Rights

Copyright Explained: Definition, Types, and How It Works

What is copyright?

Copyright is a protection given by law to Creator to protect their creation and original. Copyright is a right to ownership and enjoyment given by the law to creators of literary, dramatic, musical, artistic works and producers of cinematograph films and sound recordings. It is a bundle of rights comprising of rights to reproduction, communication to the public, adaptation and translation of the work. Copyright ensures certain minimum safeguards of the rights of ownership and enjoyment of the authors over their creations, thereby protecting and rewarding creativity.

Characteristics of copyrights

  1. Creation Of Statute – Not every work of a person comes under the protection of the Copyright Act, 1957. Only those works which are specified by the statute.
  2. Multiple Rights – Bundle of exclusive rights vested in the owner of copyright by Section 14 of the Act. These rights can be exercised only by the owner of the copyright or by any other person who is duly licensed in this regard by the owner of the copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to the public etc.
  3. Work must be original – This means it must be originated by the author mind. Copyright doesn’t subsist in the work is a copy of another work. Mere changes in work cannot claim copyright there must be author expression that is expressed uniquely. It doesn’t care about the martial used in or idea. Copyright does not subsist in mere ideas and facts
  4. Subsist in expression – Copyright subsists in expression, not in the mere idea of something. That is someone who wants to claim copyright on his work. It should be more than a shared idea and fully expressed originally.

Nature of Rights

  1. Negative right – Copyright is a negative right for others as it protects the creation of the author work. It prevents others to use the work of the author without permission it is the right to prevent others from using his work in certain ways and to claim compensation for the usurpation of that right.
  2. Exclusive rights – Exclusive right is a form of monopoly right which is enjoyed by the author in reward of his creation. Copyright gives an exclusive right to the owner to do certain acts about literary, dramatic, musical, and artistic works, cinematography and sound recordings. Exclusive right to gain commercial gains from his creation.

The exception to this right

The doctrine of Fair Use – It must not be misunderstood that it restricts the public to use these creations. As it promotes public welfare and supports the theory of Utilitarianism. These creations are for the larger society but with the little limitation that they must be for Fair Use or Work.

  1. Economical Rights – In section 14 These are rights that the author has the right to derive financial gain or commercial gains from his creations by the use of others. As copyright gives him this right to take the reward for his creation. This means that copyright owners have the exclusive right to control the translation of a work into another language, the adaptation of a work into another form, the communication of a work, the recording of a work, and the public performance of work.
  2. Moral rightsSection 57 grants special rights to the Author which divided into

Right to integrity – which empowers him to prevent distortion, mutilation or other alterations of his work, or any other action which would be prejudicial to his honour or reputation.

Right to paternity – which is related to claiming authorship of work and the right to prevent all others from claiming authorship of his work.

.Moral rights are available to the author even after the economic rights are assigned.

Authorship and Ownership in copyright

Section 17 of this Act recognizes the author as the first owner, which states that subject to the provision of this Act, the author of a work shall be the first owner of the copyright therein:

In the case of literary or dramatic composition, the author,

In the case of musical work, the musician,

In the case of creative work apart from photography, the artist,

In the case of photographic work, the artist,

In the case of cinematographic or recording work, the producer,

In case of any work generated by any computer virus, the one who created.

However, this provision provided to bound exception:

In case of creation is made by the author underemployment of the proprietor of any newspaper, magazine or any periodic, the said proprietor,

In the case where a photograph is taken, painting or portrait is drawn, cinematograph is made for the valuable consideration of any person, such person,

In case of a work done in the course of the author’s employment under the contract of service, such employer,

In case of  address or speech delivered on behalf of another person in public, such person,

In the case of government works, the government,

In the case of work done under direction and control of public undertaking such as public undertaking, and

In the case of work done in which provision of Section 41 apply, concerned international organizations.

Copyright Infringement:

Direct Infringement: Direct infringement is a strict liability offence and guilty intention is not essential to fix criminal liability. The requirements to establish a case of copyright infringement under this theory are

Ownership of a valid copyright; and

Copying or infringement of the copyrighted work by the defendant.

Thus, a person who innocently or even accidentally infringes a copyright may be held liable under the Copyright Act of the U.S. and the laws of various other countries. The guilty intention of the offender can be taken into account for determining the quantum of damages to be awarded for the alleged infringement.

Contributory infringement:

The contributory infringement pre-supposes the existence of knowledge and participation by the alleged contributory infringer. To claim damages for infringement of the copyright, the plaintiff has to prove

That the defendant knew or should have known of the infringing activity; and

That the defendant induced, caused, or materially contributed to another person’s infringing activity.

Vicarious Infringement:

Vicarious copyright infringement liability evolved from the principle of respondent superior. To succeed on a claim of vicarious liability for a direct infringer’s action, a plaintiff must show that the defendant

Had the right and ability to control the direct infringer’s actions; and

Derived a direct financial benefit from the infringing activity.

Thus, vicarious liability focuses not on knowledge and participation but the relationship between the direct infringer and the defendant.

Legal precedent for vicarious copyright infringement liability has developed along two general relational lines. The first relational line involves the employer/employee relationship, whereas the second involves the lessor/lessee relationship.

Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organizations.


Civil remedies

These remedies are given under Section 55 of the Copyright Act,1957 which are:

Interlocutory injunction

This is the most important remedy against copyright infringement, it means a judicial process by which one who is threatening to invade or has invaded the legal or equitable rights of another is restrained from commencing or continuing such act, or is commanded to restore matters to the position in which they stood previous to the relation. Thus for granting the interlocutory injunction, the following three factors are considered as necessary:

Prima facie case, an assumption of the court that the plaintiff can succeed in the case and became eligible for relief.

Balance of convenience, in it the court will determine which parties suffer the greater harm, this determination can vary with the facts of each case.

Irreparable injury, it is difficult to decide and determine on a case by case basis. Some examples of it include- loss of goodwill or irrevocable damages to reputation, loss of market share.

Pecuniary remedies

There are three types of pecuniary remedies provided:

An account of profit, which lets the owner seek the sum of money made, equal to the profit made through unlawful conduct.

Compensatory damages, which let the copyright owner seek the damages he suffered.

Conversational damages are assessed to the value of the article.

Criminal remedies

For infringement of copyright, the criminal remedies provided under Section 63:

Imprisonment, not less than 6 months which may extend up to 3 years;

Fine may not be less than 50,000 which may extend up to 2,00,000;

Search and seizure of copyrighted goods; and

Delivery of copyrighted goods to the copyrighted owner.

In the case of repeat offenders, minimum punishment terms of 1 year and a fine of 1 lakh however, the highest punishment will be the same as the first time offender.

Case laws

  • Ownership of copyright.

 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, maybe such a comment and commentary is entitled to protection under the Copyright Act.

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

In Amir Raza Hussian V cinevistaa Ltd.& others

It was held that statutory provision is for the protection of the creator and his originality of work but it does not restrict the public to use it. It supports utilitarianism and for the welfare of the society

  • Infringement of copyright

In Hindustan Pencils Ltd v Alpna Cottage Industries the Copyright Board of Goa held that where the similarities between the artistic works of the parties are fundamental and substantial in material aspects, it would amount to copyright violation and the defendant’s copyright is liable to be expunged from the register of copyright

Siddharth jain and Co.

Siddharth Jain & Co. is a full service law firm providing quality and innovative legal solutions to clients all over the world. Our portfolio of legal and quasi-legal services is offered through our head office in New Delhi. Siddharth Jain & Co. was established in 2015. We have a team of lawyers with expertise in different fields. Our expertise revolves around 39 service areas and we continue to enter into new markets continuously. We continue to join new prospects and new clients with us every passing day due to our commitment to quality-based services. Our idea of working involves strict adherence to specified goals and creative modes of achieving them. Siddharth Jain & Co. has always worked towards attaining excellence in every case or problem presented. We continue to strive to become the leader in providing legal services in the country and abroad. Our clientele includes clients from all over the world. With several awards in our profile, we proudly continue to move forward. We are always ready and prepared to welcome and embrace any new challenge. We have worked with and for government agencies. We have worked in rural areas beyond any reach of technology. We have worked with clients alien to law whatsoever. But we have always maintained our prime goal and target of client satisfaction and would continue to go so in future.

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