Copyright- meaning thereof

As per Black Law’s dictionary,• Copyright is the right of literary property as recognized and

sanctioned by positive law. • Copyright is intangible, incorporeal right granted by the

statute to the author or originator of certain literary or artistic productions.

• Copyright is the exclusive legal right to reproduce, publish and sell the matter and form of a literary, musical or artistic work.

Class of works in which Copyright subsists

Original literary, dramatic, musical, artistic work

This class of work may include

• To reproduce the work in any material form • To issue copies of the work to the public for the first time • To perform the work in public, make film or do sound

recording.• To make any translation or adaptation of the work.

Owner of Copyright

• The author of any work is the first owner of the copyright unless the work is done by an author for a consideration in absence of any condition in the contract to the contrary.

• The work may include work in the field of literature, drama, art, public speech etc.,

• Presumption however is to the contrary in the case of Government/ public undertaking work.

Assignment

Owner of the copyright may assign the copyright in an existence work or future work. The assignment would also annure in favour of legal representative of the assignee.

Assignment in case of future work would take effect when the work comes into existence.

Assignment of the copyright has to be in writing. The period of assignment shall be five years unless

otherwise stated. Assignment to be exercised within a period of one year

failing which it may lapse.

Term of CopyrightIf the author is known the term of copyright shall be 60 years from beginning of the calendar year next following the year in which the author dies.

If author is not known, the term shall be 60 years from beginning of the calendar year next following the year in which the work is first published.

If the identity of the author is disclosed within the above period, 60 years would once again run following the year in which the author dies.

REGISTRATION

  Registration is optional. It is not a sine qua non to the subsistence of the copyright.

  Registration is only a piece of evidence only to show as to when an author started claiming copyright in some work.

  Registration of copyright shall be admissible in evidence in all course without further proof or the production of the original.

Infringement

Test of infringement as per the decision of SC in case of R.G. Anand Vs. Delux Film (A 78 SC 1613)

  No copy right in an idea, principle, subject matter, theme, plot of historical or legendary facts.

  In case same idea is being developed in a different manner court to determine whether the similarity is on fundamental or substantial aspect of the mode of expression adopted in the copyrighted work.

  In order to be actionable, the copy must be a substantial and material.

Surest & Safest test is the opinion of reader, spectator or the viewer is determining factor.

  Where the theme is the same but it is presented differently so as to bring about a completely new work there is no violation.

The plaintiff to prove the violation of copyright by clear and cogent evidence since violation of copy right amounts to an act of piracy.

Remedies for infringement

CivilOwner can file suit for injunction, damages, accounts etc.,

If proved by the defendant that he was not aware of subsistence of copyright in favour of plaintiff, plaintiff only entitled to remedy of injunction and decree for whole a part of the profits made by the defendant as the court may find reasonable.

In case of specified work where name of the author is published on the work, the persons whose name appears on the work shall be presumed to be the author unless contrary is proved.

Special Rights of Author

  Even after assignment of the work wholly or in part, the author is entitled to maintain legal action for injunction/ damages in respect of any distoration, mutilation, modification which would be prejudicial to his owner or reputation.

  The exception however is any adaptation of a computer programme.

Remedy in case of groundless threat of legal proceedings

Person aggrieved by threats by any other person claiming to be owner of copyright may institute a declaratory suit and may also preferring injunction against continuance of threats and also may recover damages.

Jurisdiction of Court

District Court having jurisdiction shall be the court within whose jurisdiction the plaintiff ordinarily resides or carries on business.

This provision is notwithstanding anything contained in Code of Civil Procedure.

Remedies – CriminalPerson found guilty of infringement of copyright can be prosecuted.

If found guilty, can be imprison for a minimum period of 6 months and with fine which shall not be less than Rs.50,000. In case of subsequent offence the minimum imprisonment shall be for a term not less than 1 year and the fine not less than Rs. 1 Lakh.

Exception being in a case where the court finds that the infringement has not been made for gain the course of trade or business.

In such cases, the sentence of imprisonment can be for a term less than 6 months and fine may be less than Rs.50,000.

Seizure

Police officer not below rank of Sub- Inspector may seize without warrant the infringing articles which are required to be produced before the Magistrate.

Persons interested in seized articles may within 15 days of the seizure may move Magistrate for release.

 

Offences by Companies  Every person who was in-charge of and was responsible to

the company for the conduct of business shall be deemed to be guilty of the offence.

Exception being where the person proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Decision of the Hon’ble Apex Court in the case of “SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla reported in (2005) 8 SCC 89” is relevant.

Competent Court

No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of a First Class shall try any offence under this Act.