introduction to copyrights

7/29/2019 INTRODUCTION to Copyrights

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INTRODUCTIONTOCOPYRIGHT IN

INDIA

03/01/13 1Introduction to copyrights


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Structure of the Presentation

Three parts

(1) Copyright in India

(2) Case Study: Copyrighting DNA

(3) Infringement of Copyright



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What is Copyright?

The exclusive right given by law fora certain term of years to an author,composer etc. (or his assignee) to

print, publish and sell copies of hisoriginal work

(Oxford English Dictionary)



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Why Copyright?

Fair Play: Reward creative efforts.Thou shall not steal

Exclusive rights for limitedtime N egative right:prevent copying/reproduction

Copyright is necessaryencourage dissemination ofcopyrighted works = public interest



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England & Wales

Indian copyright law similar toEngland & Wales. First Copyright Actin England (and the world)

1709 Statute of Anne.



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United States

First Act in 1790: did not protectforeign authors

Indigenous American literature

suffered

Today: Copyright Act 1976 one

of the major copyright laws inthe world



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The Copyright Act 1957

Indian Perspectives



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Copyright in India

First Act in 1914, followed by theCopyright Act 1957.

1957 Act: adopted many Englishprovisions, introduced new ideas and

concepts.



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Copyright Act 1957 MainFeatures

Valid from 21 January 1958

Created Copyright Office andCopyright Board

Introduced civil and criminalremedies against infringement



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Copyright Act 1957 MainFeatures (II)

Performing rights societies rights(for instance, music royalties)

Definition of categories in whichcopyright actually subsists

International copyright

Definition of infringement



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Copyright (Amendment) Act1983 and 1984

Objectives

Berne and Universal CopyrightConventions grant of compulsory

licences by developingcountries, publication by

deceased authors

1984 Act: discouragingand preventing widespread video

piracy.



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Copyright (Amendment) Act1992

Defined ambit of the CopyrightBoards powers

Introducing special

rights for performers

Assignment and licences ofcopyright

Rights of copyright owners03/01/13 12Introduction to copyrights


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Term of Copyright

Depends on nature of work/ownerof copyright and whether the workhas been published

Most works: 60 years

Broadcast Reproduction: 25 years



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About Fixation, Labour, Skilland Capital

The Nature of Copyright



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The Nature of Copyright

Statute-based, no registrationnecessary

Copyright = intellectual property

Combines different rights (literaryworks: the right to reproduce inhardback and paperback editions, theright of translation adaptation)



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Labour, Skill and Capital

It is the product of the labour,skill and capital of one manwhich must not be appropriated

by another. (- per Lord Atkinson,Macmillan v CooperAIR 1924 PC 75)



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Its All About the Idea: Or isntIt?

Copyright in form or expression, notin idea:There is nothing in the notion of copyrightto prevent a second person from producing

an

identical result...

(Gregory Committee

Report, 1952, para 9)

Copyright only in material formprinciple of fixation



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What Copyright Protects

Original Literary, Dramatic, Musicaland Artistic Works

Cinematograph Films

Sound Recordings



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Literary Works

Novels, poems, short stories

Books on any subject

Computer programmes,tables, computer

databases

Song lyrics



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Computer Software

Includes

Programme Manuals

Punched Cards Magnetic Tapes/Discs

Computer printouts

Computer programmes



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Work in the biotech industry involvingcopyrightable subject matter:

Modification of genes of plants, animalsTo identify causes of diseases

To make assays for the testing of variousdiseases

Manufacture of vaccines

Spotlight on Copyright forthe Biotech industry



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DNA and Copyright

1980s/1990s: scholars proposed thatbiotechnology work =copyrightable

Copyright as alternative to patentlaw

Diamond v Chakraborty: 447 US 303

(living organisms patentable) Practical problems prevented grants

Computer industry successfullylobbied for amendment of 1976Co ri ht Act03/01/13 22Introduction to copyrights


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Arguments againstcopyrighting of DNA

Facts lack originality

Doctrine of merger and non-equivalence of DNA/computerprogrammes

Utilitarian prohibitions



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Arguments for Protection

Copyright Subject Matter

Analogybetween Literary Worksand computer programmes

DNA as a Compilation

Sweat of the Brow Doctrine



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Copyright Subject Matter

The work concerned has to be

Original

Work of authorship

Fixed

In the United States, Congressintended a

wide reading of the term literaryworks


na ogy e ween erary


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na ogy e ween eraryWorks and Computer

Programmes Genetic Sequences are strings of

symbols of the nucleotides of DNA

DNA sequence containing coded

genetic information for the synthesisof particular protein = application

programme of a computer



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DNA as a Compilation

Combining various elements of DNAconstitutes a compilation: involvesassembling of pre-existing materials

Selection and arrangement ofsequence elements are

copyrightable


S f h B


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Sweat of the BrowDoctrine

Originalityin the labour expendedin the collection and assembly ofdata: adaptable to DNA sequences

Researchers spend

considerable time and effort

to discern the sequence of a gene:they should have copyright due tohard work



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Why Patents Dont (Always)Work

Patents confer monopolies and excludecompetitors from conducting research

Can offer rewards disproportionate to risk:Genentech Incs Patent[1989] RPC 147, CA

Public interest would be injured if everycorporation could patent anytime, anywhere.Without them, corporations may lack incentiveto conduct research

No guarantee for independent researchers thattheir efforts will pay off



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Copyright and Related Rightsto the Rescue?

Despite conferral of a monopoly,usually another option available:Copyright could be an option in

cases without inventiveness

Advantage of copyright system: no

ban on creation of genomes, merelyroyalties; licensing schemes can beregulated.


i i l i


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Sequence = Original LiteraryWork?

S. 3 of Copyright, Design andPatents Act 1988 defines literarywork

Includes a) table or compilation andb) computer programme

DNA sequence could be literary workas well: created by human mind,written



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Telegraph Code Cases

Based on these, there is copyright inseemingly arbitrary instances ofletters

Anderson & Co v Lieber Code Co[1917] 2 KB 469

Ager v Peninsular and Oriental

Steam Navigation Co.(1884) 26Ch D 637

Ager v Collingridge(1886) 2 TLR291

Ex ress News a ers lc v 03/01/13 32Introduction to copyrights


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Originality

Work may be original, even ifderived from previous material,provided further independent skill,

useful labour, knowledge orjudgment have been bestowed on itscreation

Even if nature of subject matter canlead competent author with onesolution: Walter v Lane [1900] AC


I f i t f C i ht i


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Infringement of Copyright inMolecular Sequences

CDPA 1988, s. 16: copyright ownerwith exclusive right to copy the work

16(3): infringement by copying work

as a whole or any substantial part Infringement cannot take place outside

UK or when a legal copy has been

purchased from which one adopts ascissor/paste approach: Warne & Co vSeebohm (1888) 39 Ch. D. 73


I f i t i Ch i l


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Infringement in ChemicalForm?

S. 178 of the CDPA 1988: writingdefined as any form of notation orcode, whether by hand or otherwise

and regardless of the method bywhich, or the medium in on which, itis recorded

No understanding by the humanmind required:Apple ComputerInc v Computer Edge Pty Ltd[1984] FSR 496



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Infringing Copyright

Thing in question has to derive fromoriginal literary work

What is required is the reproductionof a substantial part of what isoriginal in the copyrighted work:Warwick Film Productions Ltd v

Eisinger1 Ch 508, Ladbroke vWilliam Hill (Football) Ltd[1964]1 WLR 273, per Lord Pearson


di i i b k


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Indian position - Eastern bookCompany case

This case relates to compilation ofSupreme Court judgements

Test for originality

The middle path approach adopted forDerivative works

Sweat of the Brow Vs. Modicum ofcreativity

U.K. approach (Ladbroke) Vs. U.S.A.(Feist)

India follows the Canadian approach

CCH Canada03/01/13 37Introduction to copyrights

C l C i ht


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Case laws on Copyright

There is no reported case on thecopyrightability of biotech subjectmatter

There is one case currently pendingwith respect to plant varieties on thebasis of copyright and trade

secrecy/confidential information


Case laws


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Case laws

J. Mitra Company Pvt. Ltd. Vs. Span Diagnostics

CS (OS) No. 2020/2006 - Judgment dated 22.02.2008passed by Ld. Single Judge of Delhi High Court, Honble Mr.Justice Sanjay Kishan Kaul

J. Mitra developed a highly qualitative fourth generation

Hepatitis C diagnostic kit which enable the disease to be diagnosed within 10-15 days

after the virus enters the human body J. Mitra had applied for a patent on this product before the

Indian Patent Office as far back as in 2000

The Patent disclosed an invention which comprised of aspecific set of antigens used in specific proportions and thedevice built in a unique manner


Case laws


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Case laws

J. Mitra Company Pvt. Ltd. Vs. Span

Diagnostics (Contd..)

Span Diagnostics copied the HCV Tridot product

Span had initially opposed the grant of patent and thepatent office in India had rejected the objections and hadgranted the patent to J. Mitra in 2006

After the grant of the patent, J. Mitra filed a case againstSpan Diagnostic seeking injunction against themanufacture of Signal HCV which was the copied deviceof Span Argued that antigens are commonly known andthe methodology is nothing but protein sequences


Case laws


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(Contd..) Vide judgment dated 22.02.2008, Honble Mr. Justice Sanjay

Kishan Kaul of the Delhi High Court has held that: Sufficient documents were filed showing the research

conducted byJ. Mitra.

The international preliminary examination report issuedby the PCT Office does not have a bearing on the validityof the patent. The validity patent has to be examined by

the court considering the merits of the case.That the defendant showed no research or development

towards its infringing product

Case laws


Case laws


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(Contd..)That the defendant had not been able to show that it had

developed the product or had applied for the approval ofthe product prior to the patent application of J. Mitra.

That J. Mitras patent was an invention and none of theearlier U.S. patents relied upon by the defendant Spanwere identical to J. Mitras product

The other products shown by the defendant are differenttypes of tests and not the Rapid fourth generation test

device as patented by J. Mitra Evaluation of W.H.O. reveals 98.9% specificity and 100%

sensitivity of J. Mitras product

Case laws


Case laws


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(Contd..)The only difference between the plaintiffs and

defendants device was that J. Mitras device had threedots and Spans device had two dots

The life of a patent being limited in nature i.e. in thiscase only till 2020, it is necessary to protect the patentand restrain Span

Case laws



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When (Copy)right becomeswrong

Infringement of Copyright



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Statutory Definition

Copyright Act 1957, s. 51

Infringement: exercising rights of thecopyright owner

Making, distributing, exhibiting andimporting infringing copies of thework


Factors Determining


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Factors DeterminingInfringement

CopyingCausal ConnectionSubconscious Copying

IndirectCopying

Substantial TakingUnaltered copying

Extent of defendants alterationCharacter of Plaintiffs and Defendants

worksNature and Extent of Plaintiffs Effort



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General Principles

R.C Anand v Delux Films(1) No copyright in an idea.

Violation of copyright confined to form,manner and arrangement, as wellas expression of idea by the author

(2) Where same idea developed in

different manner, similaritieshappen. Court to rule on whethersimilarities are merely substantial orfundamental



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General Principles (2)

(3) Safest Test: Does the reader/

spectator/viewer have the

opinion/get the unshakeable

impression that the second work isa copy of the original? (the viewertest)

(4) Same theme, differentpresentation

Completely new work, no infringement



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General Principles (3)

(5) Where there are only incidentalsimilarities, there is no copyrightinfringement

(6) Copyright infringement = piracy

it must be clearly proven

(7) Very difficult to proveviolation of copyright of

stage play by a film

producer: the viewer test is

applicable03/01/13 49Introduction to copyrights


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Strengthening Copyright,Enhancing the Reach of the Law

Remedies for Copyright

Infringement



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Remedies



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Civil Remedies



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Civil Remedies (2)

InjunctionOnly effective remedyCourt has to weigh the

damage to the plaintiff if theinjunction is not granted, asopposed to the damage to thedefendant if it is

Interlocutory injunction is thepreferred methodfor preventinginfringement, sometimes an ex parteinjunction



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Criminal Remedies


C i i l R di


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Criminal Remedies Copyright Act 1957, s.64

empowers the Police (any officer notbelow the rank of sub-inspector) toseize infringing copies without

warrant Police Raids (Power ofsearch,

seizure & arrestwithout a warrant)

Fines (min. 50,000-200,000 INR) Imprisonment (6 months to 3

years)


Pros and Cons of Civil


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Pros and Cons of CivilRemedies

PROS

Judicial determination of rights

Likelihood of damages award

Less vulnerable to a challenge

Commissioners seizure orders moreeffective


Pros and Cons of Civil


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Pros and Cons of CivilRemedies (2)

CONS

Delays Trial, Appeal Stages

Damages not usually awarded

No severe punishment for violation

of rights


Pros and Cons of Criminal


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Pros and Cons of CriminalRemedies

PROS Quick remedy

Greater opportunity to quickly

counteract violation, with arrest actingas a deterrent

CONS

Chances of seizure of goods low

Difficulty in coordinating with the police


Conclusion


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Conclusion

Protection for DNA and proteinsequences is in the nascent stageglobally and in India;

A tilt exists towards patenting;

Copyright may be a viable option butthere are problems with establishing

priority etc.,

A strong copyright registrationmechanism is needed if the biotech

industry is to adopting Copyright03/01/13 59Introduction to copyrights

Conclusion


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Conclusion

Requires complete overhauling of theCopyright offices

At present most copyrightable works are notregistered

Even copyright registrations where thetraditional examination and oppositionprocedures are not followed, take timesometimes even 3 years to get registered

For biotech industry, a vibrant and robustcopyright registration regime, is necessary

Priority would be difficult to establish.



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Yahoo Sued by Indian Music Company

for Copyright Infringment

By John Ribeiro, IDG NewsThe Delhi High Court in India passed aninterim injunction on Friday that prohibits

Yahoo Video from streaming copyrightcontent from Indian music company, SuperCassettes Industries, according to the lawyer

representing the Indian company in thiscase. The court, after finding a prima-faciecase, also issued a notice to Yahoo and itsIndian subsidiary.

The music company, which uses the brand T-Series, is seeking
http://www.pcworld.com/author/John-Ribeirohttp://www.idgnews.net/http://www.idgnews.net/http://www.pcworld.com/author/John-Ribeiro


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a permanent injunction and damages for the allegeddissemination and display of its copyrighted content on YahooVideo.

Yahoo will not comment on the case as the matter is before acourt, a company spokeswoman said.Super Cassettes Industries last year sued YouTube,owned byGoogle, for similar reasons. It obtained an interim restraining

order on YouTube in that case too, though the case has notbeen finally disposed.A "cease and desist" notice regarding the streaming of thecopyright content was served on Yahoo and its Indiansubsidiary in late February, Super Cassettes Industries' lawyerRahul Ajatshatru said Monday. Yahoo did not remove thecontent identified in the notice, and instead asked the Indiancompany to follow procedures laid down by Yahoo for reportingmisuse of copyright content, Ajatshatru said. Yahoo ignored a

second notice sent by the Indian company in March.
http://www.pcworld.com/article/id,139366/article.html?tk=rel_newshttp://www.pcworld.com/article/id,139366/article.html?tk=rel_news


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Thanx

Prof.K.ANBUDURAIB.E.,M.S.

(ByResearch).,M.B.A.,Ph.D.,PGDip.IP

R.,

Email:[email protected]

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