Mentoassociates.com – Legal Articles

Copyrights of works of the countries mentioned in the International Copyright Order are protected in India, as if such works are Indian works. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order. Copyright as provided by the Indian Copyright Act is valid only within the borders of the country. To secure protection to Indian works in foreign countries, India has become a member of the several international conventions on copyright and related rights.

The central government has the power to extent copy right to foreign works which includes:-
a. Works first published outside India.
b. Unpublished works of authors who are citizen of foreign countries.

The terms (time period) of copy right for various classes are as follows:-
a. For published literary, dramatic, musical and artistic work- until 60 years after the death of the author.
b. For anonymous and pseudonymous works- 60 years from the date of publication.
c. Photographs – 60 years from the date of Photograph.
d. Cinematograph films- 60 years from the date of publishing of film.
e. Sound recording – 60 years from the date of publishing.

The owners of the copy right may grant any interest in the right by licence in writing signed by him to any other person.
If any work in which there is a copy right, is unreasonably withheld by the owner from the Public, the copy right board has the power to give license to a person even against objection from the owner.

In the case of an unpublished Indian work and if the author or the owner of the copy right is dead or unknown, the copy right board can grant licence to an applicant to publish such work.

License for translation: The person may apply to the copy right board for licence to produce and publish a translation of the literary or dramatic work in any language after the period of 7 yrs from the first publication of the work.

Normally the author of the work shall be first owner of the copy right therein.
Author means-
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph or sound recording the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.

Rights in a musical sound recording: There are many right holders in a musical sound recording- the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician who performed the background music and the person or company who produced the sound recording. A sound recording generally comprises various rights. It is necessary to obtain the licences from each and every right owner in the sound recording.

Works by journalists, apprentices etc during the course of their employment:
In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

In the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

In the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Assignment: The owner of the copyright may either wholly or partially assign the rights to any person. The assignment of the copy right shall be valid only if it is in writing and signed by the assignor. Disputes with respect to assignment of copy right are settled by the copy right board. Where the assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period. If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within the whole of India.

Relinquishment of copy work: The author of a work has the right to relinquish the copy right in a work by giving notice to the registrar of copy rights. The notice shall be in Form I.

Broadcaster’s Rights:
As per the act “broadcast” means communication to the public-
(i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or
(ii) by wire, and includes a re-broadcast;
Every Broadcasting organisation has a special right for its broadcast which is known as broadcast reproduction right. The broadcast reproduction right is valid for 25 years.

Performer’s Rights:
As per the Copyright Act, “performer’ includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance and “performance”, in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers;

A performer who appears or engages in any performance shall have a special right known as performer’s right which is valid for a period of 50 yrs. The use of reproduction right or performer’s right for the private use of a person or for research or for reporting of current event, is not an infringement of Broadcasting Reproduction right or performer’s right.

The scope of the term copy right and the rights associated with it will differ with different classes.

(a) Scope of copy right in the case of a literary, dramatic or musical work, not being a computer programme:
(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) In the case of a computer programme:
(i) to do any of the acts specified in the case of a literary, dramatic or musical work
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.

(c) In the case of an artistic work:
(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) In the case of cinematograph film:
(i) to make a copy of the film, including a photograph of any image forming part thereof;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the film to the public;

(e) In the case of sound recording:
(i) to make any other sound recording embodying it;
(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) to communicate the sound recording to the public.

Meaning of right of adaptation:
Adaptation means,-
(i) in relation to a dramatic work, the conversion of the work into a non-dramatic work;
(ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise;
(iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical;
(iv) in relation to a musical work, any arrangement or transcription of the work; and
(v) in relation to any work, any use of such work involving its re-arrangement or alteration;

Meaning of right of communication to the public:
It means making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available.

For the purposes of this clause, communication through satellite or cable or any other
means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. The term copy right means the exclusive rights to reproduce the work, to issue the copies of the work to public, to perform the work in public, to do a cinematograph film or sound recording in respect of the film etc.

Indian Copy Right Act 1957 and Copy right rules 1958, consolidates the law of copy right in India. There is an office established for the purpose of the copy right, called the Copy Right Office. The same is under the control of Registrar of Copy rights.

There is a board called Copy Right Board of which the secretary shall be the Registrar of Copy right. The copy right board has several benches.

As per the Indian Copy Right Act 1957, the following classes of works can have copy right:
a) Original literary, dramatic, musical and artistic work.
b) Cinematograph films.
c) Sound recordings

There shall be no copy right for a design which is registered under Design Act 1911. Unlike the case with patents, copyright protects the expressions and not the ideas. There is no copyright in an idea.

Artistic work means-
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) Work of architecture; and (iii) any other work of artistic craftsmanship;

Cinematograph film means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.

Computer programme means a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result.

Dramatic work includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film.

Literary work includes computer programmes, tables and compilations including computer literary data bases.

Musical work means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music.

Sound recording means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced.

Copy Right Societies:
The Act also provides for registration of copy right societies for the purpose of carrying on the business of issuing or granting license in respect of any work in which copy right subsist. The powers of copy right societies may include:-
a. To accept from an owner of copy right authorisation to administer any right in any work by issue of licence or collection of licence fees.
b. The copy right society may issue licences in respect of any rights under the Act.
Every copy right society shall be subject to the collective control of the owners of rights under the Act.

1) Procedure to obtain a trademark: An applicant who wishes to register a Trade Mark needs to make an application. The application will be allotted a Number. Thereafter the application is examined and an examination report will be dispatched to the applicant.

During examination if the application is accepted, then the same is published in the Trade Mark journal and it will await opposition from public. If there is no opposition the application will be accepted and Trade Mark will be registered in the name of the applicant. If there is opposition to the journal publication, the hearing officers will conduct a hearing and they will look into the evidence produced by the applicant and the opponent. If the application is allowed then the Trade Mark will be registered in favor of the applicant. However if opposition is allowed and the application is refused the applicant either go for a review, before the hearing officer of file an appeal before the Intellectual Property Appellate tribunal.

After the initial examination if the registrar objects the application, then he can call for the hearing of the party and based on the outcome of the hearing it can be accepted or refused. If accepted the same will be sent for journal publication and if refused the applicant can approach the Intellectual Property Appellate tribunal.

2) General Facts about Trade Marks:
a) The head office of Trade Marks registry is at Mumbai. The branch offices are at Delhi, Kolkota, Ahmedabad and Chennai.

b) At present the Trade Marks can be registered for services in addition to goods. Further collective marks owned by the association of persons can also be registered.

c) The legal requirements to register the Trade Marks under the Trade Marks Act 1999 are:
i) The mark should be capable of representing graphically.
ii) It should be capable of distinguishing the goods/services of one undertaking from those of others.

d) Trade Marks are not given on a geographical name.

e) The Trade Mark Act 1999 classifies goods and services according to the International Classification of Goods and Services; the same is produced in Schedule 4 of the Act.

3) Benefits of Registering the Trade Marks:
a) The registered owner has the exclusive right to the use of the registered Trade Mark indicated by the symbol (R)
b) He is entitled to seek relief of Infringement in case anybody infringes his trade mark.

The copyright Act, 1957 amends and consolidates the Law relating to copyright in India. Copyright shall subsist throughout India for the following classes of works.
a) Original literary, dramatic, musical and artistic works.
b) Cinematograph films,
c) Sound recording
Copyright means the exclusive right to do or authorize the doing of any of the following acts in respects of a work or any substantial part thereof, namely:
a) In the case of literary, dramatic or musical work, not being a computer program:-
1.To reproduce the work in any material form including the storing of it in any medium by electronic means;
2.To issue copies of the work to the public not being copies already in circulation;
3.To perform the work in public, or communicate it to the public;
4.To make any cinematograph or sound recording in respect of the work.
5.To make any translation work;
6.To make any adaptation work;
b) In the case of computer program:-
1.To do any of the acts specified in clause a.
2.To sell or give on commercial, rental or offer for sale or for commercial, rental any copy of the computer program, provided that such commercial rental does not apply in respect of computer program where the programme itself is not the essential object of the rental.

The author of a work shall be the first owner of copyright therein. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially provided that in the case of assignment of copyright in any future work the assignment shall take effect only when the work comes into existence. The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form to the Registrar of copyrights.

Copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies.

In the case of a literary, dramatic, musical or artistic work (other than a photograph) which is published anonymously or pseudonymously, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published.

In the case of a photograph, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the photograph is published.

In the case of a cinematographic film, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the film is published.

In the case of a sound recording, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the sound recording is published.