anuradha maheshwari march 07, 2009 © institute of intellectual property studies iips 1

Anuradha MaheshwariMarch 07, 2009

© Institute of Intellectual property studies IIPS

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Have you seen an elephant dance?

A dog Sketch?A deer act ?

or

A monkey making cinema?2

7th & final book of HP-released on 21st July 2007People waited thru the night all to get copiesWhat happens to Harry- was a tightly guarded secret

Rowling made history from sales of this book In UK 2.6 million books were sold in 24 hours In the US sales topped 8.3 million & Scholastic publishers claim that sales of book account for 8% of year’s revenues

Rowling’s 1st 6 books sold over 325 million copies worldwide

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5 Hollywood adaptations of the books were made

Warner Bros. earned US $ 4 billion from ticket sales

1st film ranked 4th on world wide list of highest gross earners

ABC Television broadcast HP & Soccerer’s Stone in April this year netted 4.2 million US viewers

Haunting music soundtracks of 1st 4 movies composed by John Williams sold over 1.1 million copies in US

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Warner bros owns worldwide merchandising rights to HP TMs .

TMs include characters, themes & other elements over 400 different products.

Toy makers Hasbro are licensed to distribute HP sweets, like cockroach clusters, chocolate frogs and Fizzing Whizbees- & have sold worth 11.8 million since 2001

Mattel to make HP action figures, games & puzzles boosting company’s shares by 13.5%

Electronic Arts gained rights to HP computer & video games

Coca Cola Secured rights in marketing the film together with its products

Estimates of HP brand-4 billion USD to twice that figure

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Scanned copies of books - uploaded & distributed on net.

Illegal e-copies of her book were being sold on e-bay India lost 50% of the sales market due to cheap

pirated versions in Mumbai and B’lore China- Infringing copies with Rowling’s name photo &

copyright notices under made-up titles- Chengdu Publishing

French teenager translated all 759 pages of the final book & posted it on the net

Unauthorised derivative works & imitations- Tanya Grotter

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1 creator – J.K. Rowling Publishers, editors, translators, printers &

marketers who produced different language versions of the book.

Producers, actors, directors, music composers, technicians and all other support staff responsible for making of the movie

Designer, software developers, manufacturers, retailers, distributors, workers in factories and stores who produce & distribute wide range of toys & other merchandise

Tour guides, & workers in hotels & restaurants located in areas visited by tourists wanting to see the places where the movies were filmed.

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Magical tale of transformation of creativity & IPOne Idea- story- book – films/TV- products- brandEvident economics of Copyright & other related IPsMultiple industries & livelihood for hundredsFree riders profiting from creative output of othersWorks of art & expression – need to be protected

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Harmonization of technology, law & media- law & enforcement technology always lag behind

Fundamental shift in the management of property- ownership, storage and movement

Changing nature of theft- bank lockersCombating IP piracy- ThreedollarDVD.comHow to protect and manage your IP- is copyright dead?

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What makes Human Beings human?

Thoughts–intelligent, evolved, sophisticated

Ideas- extensions of thoughts

Expression/Art – creative, of various kinds. Creativity & art - natural only to humans

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Necessity in human society Helps us understand & communicate Helps us understand & bond with different

cultures Helps us understand the past & history Helps to entertain us Helps in emotional healing Helps in creating economic activities &

industries

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Writing – books, articles, novels Sound – recordings Motion – dance 3 dimensions – cinema Visually – painting Software – algorithmsCreative expressions are called as artistic

works egs

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Thousands of years – writings on clay, stone, caves, banks & only one copy at a time

Comes into play with productions of books Ancient Greek & Roman civilisations books were produced for wealthy patrons by scribes or slaves

Atticus the Roman literary patron went into book publishing business with his slaves & produce one thousand copies of a small volume in a single day

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500 AD-1500AD – Primary keeper & reproducer of books - church

- Labour of thousands of monks - Most produced books were Bible 1440 – Revolution in history of mankind - Invention of printing press by Johanness

Guttenberg - Printing Press by William Caxton- last quarter of

15th cent Prior to Printing Press concept of “authorship” not

understood - Owners of copies had right to reproduce - Permitting many copies

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Charter of stationers company in 1556 granted leading publishers of England to exclusively print & distribute books in England –

Protected investment of 1st Company to publish a book & eliminated piracy

Provided for burning of books & the imprisonment of anyone printing unauthorized books

End of 17th Century rights in ‘copy’ came to be recognized & agreed that one publisher cannot print copies of books published by another

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Above practices supported by a series of Licensing Acts creating monopolies. Pirated versions of Don Quixote abounded

1694 Licensing Acts allowed to expire in accordance with public sentiment

1709 March statute of Anne – 1710 Remarkable statute called ‘An Act for

Encouragement of learning by vesting the copies of printed books in the authors or purchasers of such copies, during the times therein mentioned’. 16

New law carefully balanced interests Authors rights were extensive Remedies for violation were severe Rights granted for limited period of 28 yrs. Author had to publicly register their claims of an

authorship in order to protect the “many persons” who “through ignorance” might otherwise “offend against this act”

Authors had to deliver 9 copies of each book to the warehouse keeper designated in the statute to be made available “for use of royal library & librarians of Oxford & Cambridge” and some other libraries

Failure to deliver such copies invoked fine & forfeiture.

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1787 – Preamble to the US Constitution pledges “to promote the progress of science and useful arts” by giving the congress the power to grant “Authors & Inventors the exclusive right to their respective writings and Discoveries”

1790 – 1st US Copyright Law – “An Act for the Encouragement of learning”

Exclusive right to print, reprint, publish or vend their works for 28years

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The Berne Convention for the Protection of Literary and Artistic Works (1886)

Universal Copyright Convention (1952). UCC was developed by United Nations Educational,

Scientific and Cultural Organization as an alternative to the Berne for those states which disagreed with its aspects, but still wished to participate in some form of multilateral copyright protection. States included developing countries and the Soviet Union, which thought that the strong copyright protections granted by the Berne Convention overly benefited Western developed copyright-exporting nations, and the United States and most of Latin America.

Trade Related Aspect of Intellectual Property Rights(1995)

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WIPO Copyright Treaty (WCT) (1996) -WCT is a special agreement under the Berne Convention. - Treaty mentions 2 subject matters to be protected by copyright,  (i) computer programs, whatever the mode or form of their expression, and  (ii) compilations of data or other material (“databases”), in any form, which by reason of the selection or arrangement of

their contents constitute intellectual creations. WIPO Performances and Phonograms Treaty (WPPT) (1996) - Treaty deals with intellectual property rights of 2 kinds of beneficiaries:  (i) performers (actors, singers, musicians, etc.), and 

(ii) producers of phonograms (the persons or legal entities who or which take the initiative and have the responsibility for the fixation of the sounds). 

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Literally right to copy ‘Copyright’ derived from the expression ‘copier of

words’ first used in the context in 1586 in Oxford dictionary

‘Copy’ dates 1485AD -denotes a manuscript or other matter for priority.

Copyright essentially is an author ‘s, composer’s etc right to copy his own work to ‘protect’ the ‘expression’ of the work created.

It is the right to authorise the reproduction of the work(making copies) & distribution of the same

So copyright is the right to copy or REPRODUCE the work in which copyright subsist

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Creative of Statute - No such thing as common law copyright-the person owns

it b’coz the law recognizes such a law-no copyright can exist in

any work except as provided in section 16 of the statute Automatic protection - The moment someone creates the book, a piece of

music, computer prog. painting etc it is copyrighted - Almost everything created privately & originally is

copyrighted Negative in nature - Prohibits to prevent others from reproducing the work or exploiting it for their own purpose Monopoly rights - For a specified period

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Multiple rights or priority is given for the same work

Berne Convention recognizes Reproductive Rights - right of copying, printing,

distributing Adaptive Rights - make modified version Distributive rights - distribute copies - selling Performance Rights - perform publicly, broadcast Display Rights - the films, complete programme Attribution Rights - claim authorship of the work &

preventive measures Economic Rights – to exercise, sell, give online, etc. Moral Rights – understood to be - Authors rights to publish or not - To claim authorship – to sign or not sign or to

sign a fictional name - Object to any changes in the work which could

damage reputation

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Written works Artistic work Dramatic & Choreographic work Films & Multimedia Products Computer Programmes Section 13 of Indian Copyright Right Act states

that Copyright subsist in Original literary, dramatic, musical & artistic

works Cinematographic films & Sound recordings Literary work includes computer programmes,

tables & compilation including computer database

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Original does not mean that the work must be the expression of original & inventive thought

Originality is measured by the degree of involvement, skill, labor & knowledge of author- Feist V RuralTelecom

Literary merit of work is immaterial – even a mundane rhyme qualifies for protection

Should be a product which is the result of utilisation & investment of intellect

Originality does not signify novelty- facts lack org No author may copyright his ideas or the facts he

narrates 25

Literature- literary works- Head notes- Eastern Book Company-2001- there can be no monopoly in subject matter which author has borrowed from public domain

Artistic works- fonts/type face; Camlin Pvt Ltd vs National Pencil Industries-2002- cartoons as original artistic works

Drama- life history of prominent personalities-Phoolan Devi vs Shekhar Kapoor, 1995

Music- devotional songs, version recordings etc Cinema- Films, advertisements- Star India vs Leo

Burnett,2003 Sound recording Concepts- Anil Gupta & Anr vs Kunal Dasgupta & othrs,

2002- abare outline, synopsis can be protected, short unelaborated statement of an idea

Copyright protect expressions of thoughts & not original ideas

No copyright in factual information – databases-Feist V Rural Telecom-1991

Copyright only in the form, arrangement, expression of the database – only in form in which it is expressed.

No copyright in news – only in views Donoghue v. Allied Newspaper 1938

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Valuable piece of intangible property Can be transferred or transmitted like any other asset S.17 the author - the original creator of the work shall

be first owner therein When an employee produces a work in course of his

employment – employer will own the copyright in absence of an agreement to the contrary - V.T. Thomas v. Malayala Manorama – held that

cartoon ‘Baban & Moly’ created long prior to employment with respondent belonged to cartoonist V.T. Thomas & he alone was the owner of the work

If a company commissions a third party to create its internet page, then normally copyright will vest in the creator (webmaster) 28

Under S.54 of the Act- a copyright can be owned by: An exclusive licenseePublisher of the work in case of anonymous

or pseudonymous workArtificial persons like companies and also ownJoint or co owners – in case of collaborative

works – like the building of a softwareA play into a film – R.G. Anand v. Delux films

“A copy is that which comes so near to the original as to give every person seeing it the idea by the original

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Assignment – seldom owner himself

exploits his works

He either assigns the whole or part of his

rights to others for economic

considerations

Licensing – all or part of the rights on the

basis of fee and royalty payments it is in

essence a transfer of partial ownership30

Stealing information or original work is theft Plagiarism is the act of copying a work wholly

or partially and pretending to be its original author

When there is a violation of one’s exclusive right to his property we call it “infringement”

Infringement takes place when one ‘knowingly’ copies/reproduces the creative work of another without permission (S. 63)

Infringement is an offence under all laws of copyright

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Examples of infringement Making copies of printed material Photocopying is the commonest method of

illicit reproductionUsing passages from books/speeches over

radio or on film from another bookMaking computer copies of computer games

Sega Ent. v. MaphiaMaking digitized copies of print photos

Playboy v. Frena32

R.G.Anand Vs M.S. Delux Films & Others- SC 1978 No copyright in ideas, subject matter, themes,

plots or historical or legendary facts. Violation of copyright confined only to form,

manner, arrangement and expression of copyrighted work.

In order to be actionable copy must be substantial and material to constitute act of piracy.

Surest test- reader, viewer, spectator should get an ‘unmistakable impression’ that subsequent work is a copy of the original

Fair use is a doctrine developed by courts in the US

Allows certain types of copying ‘without permission for the promotion of creativity, research, science & useful arts

Advantageous for libraries & archives Judicial proceedings, works of legislatures,

course of instructions & examinations including use of copyrighted material in religions & official ceremonies & marriage proceedings are protected

Thus a film critic can include a clip from a film in her review to make her point

Fair use is a legal exercise that permits one to take quotes from others protected works without violating the law 34

American Geophysical union v. Texas Inc. 1993- court not convinced of fair use

S. 52(1) was inserted by 1999 amendment to Copyright Act to provide for ‘Fair Dealing’

Now making backup copies, reverse engg.(hacking), de-compilation, copying for non-commercial use etc are to be deemed ‘fair dealing’ wrt computer programs Sega v. Accolade

Finally whether a use is fair or not still remains a subjective conclusion

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Fair use not a license for theft of expressions Defence of fair use is a mixed question of

law & fact. Elements: - Purpose of use - Nature of the copyright - Amount & substantiality of portion used - Effect on the market Amount of material that is infringed is not as

important as the impact of infringement Cases- Harper & Row Inc vs Nation

Enterprises 1985 36

When copyright expires or when it is waved by

public declaration work goes into public domain

A work in the public domain is one that can be

freely used by anyone for any purpose- no

monopoly in subject matter borrowed from

public domain- Eastern Book case

Many believe that work without copyright

notice is in the public domain –far from the

truth

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No special formalities required to establish copyright

Copyright exists moment complete work is created & published. This is the inference drawn from the language of sec.44 of the Act.

Registration not a prerequisite for acquisition of copyright

Universal Copyright Convention requires all signatory nations to accept the c in circle variant as notice of copyright

Notice is public declaration of creators exclusive rights – to prevent plea of innocence

Registration process of formalities as mentioned in the Copyright Act - Objections can be received upto 30 days after notice of copyright

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Length varies according National Laws of each country Who created the work The type of work

Berne Convention – Life of Author + 50 yrs. thereafter

India – 60yrs.US – 70 yrs.

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Literary, dramatic, musical, artistic- lifetime of author+60 yrs

Anonymous, pseudonymous & Posthumous work- 60 yrs beginning of calendar year following the year work published.

Photos, films, sound recordings, govt. works & international organisations- as above

Broadcasters & performers- 25 years from the date on which made

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Objective of copyright law is to encourage

authors, composers, artists & designers to

create original works by rewarding them

with the exclusive right for limited period

to exploit the work for a monetary gain.

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anuradha@iips.ac.in

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