Rights of Authors and Others

Introduction

The author means ‘composer of a work, particularly literature’, but today a very wide definition is given to authors. Every author, composer, artist, photographer or producer has a right on the work produced by his intellect, which is known as ‘intellectual property of the author’ and the right is known as ‘copyright’.

The right which a person acquires in a work, which is a result of his intellectual labour, is called as copyright[1]. The object of Copyright Act, 1957 is to protect the author of the copyright work from unlawful reproduction or exploitation of his work by others[2].

Copyright according to Black’s Law Dictionary is the right in literary property as recognized and sanctioned by positive law. An intangible incorporable right granted to the author or originator of certain literary and artistic production whereby he is invested for a specific period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them[3].

Origin of Copyright Law

After the invention of the printing press by Gutenberg in 1436, the level of copying and publishing worldwide increased markedly. The invention of the printing press also enabled "pirate"' booksellers to copy books already published by "legitimate"' booksellers. These pirate booksellers were able to sell these copied books at lower prices since they could avoid paying for the authors' manuscripts, and it became increasingly clear that some protection was necessary. For the first time on the rights of authors in 1709, Great Britain implemented “Statute of Anne”, a statute for the protection of authors spread throughout Europe and the United States[4].

Later the focus of copyright switched from the bookseller to the author, forming a philosophical debate as to the origin of the right. Under the old privilege system, the right was justified on economic grounds; Authors, on the other hand, created the books; the ideas belonged to them and emanated from them. Thus, many philosophers argued that copyright should protect both the authors' economic and personal interests and that those interests should be as unlimited as possible[5].

Thus the natural rights approach, however, was partially rejected in Great Britain and the United States. The statutes did not codify natural law; they replaced it and created in authors an exclusive, but time-limited (14 years originally), right to prevent others from copying their works without authorization. The purpose of this exclusive right was to protect the economic rights of authors or publishers who bought the authors' copyrights[6].

Early International Copyright Protection Attempts

As the extent of piracy increased by 19^th Century, the level of activity in the area of international copyright protection also increased. More and more countries attempted to establish copyright relations by means of treaties[7].

· First international copyright treaties were based on a system of material reciprocity, under this, country A would grant country B's authors the same protection as country B would grant country A's authors.

· National Treatment under the French Decree of 1852, under this, country A grants authors from country B the same protection that country A grants its own authors.

· Berne Convention- International Recognition of Authors' Rights: In 1858, six years after France's landmark Decree, the first International Congress of Authors and Artists met in Brussels. The work of this group laid the groundwork for the drafting and signing of the Berne Convention.

The Berne Convention by no means was going to solve the copyright crisis on its own, but it played an important role in encouraging the many solutions to the crisis. The original contracting states to the Berne Union established the Convention to protect and promote the international rights of authors. This goal remains in the heart of the Convention. It has given the Berne Union the ability to increase the protection of authors' rights, reach compromise solutions to overcome philosophical and economic differences, encourage growth in membership despite the difficulties in enacting Berne's high standards domestically, protect authors from the potential erosive effect of new technologies, and encourage greater author protection in non- member countries.

Copyright: Meaning & Characteristics

Section 14 of Copyright Act, 1957 explains the meaning of copyright as:

S.14: Meaning of copyright - "copyright" means the exclusive right to do any of the following acts in respect of the following work:-

Characteristics of Copyright[8]

1. Creation of a Statue

Section 16 of Copyright Act specifically says “No copyright can exist in any work except as provided under this Copyright Act”.

2. Some Form of Intellectual Property

A Copyright is a form of intellectual property since the product over which the right is granted is the result of utilization and investment of the Act.

3. Monopoly Right

4. Negative Rights

5. Multiple Rights

6. Copyright Only in Form Not in Idea

The owner can have copyright only on a published or unpublished work existing in any form other than an idea.

7. Neighboring Rights

Copyright not only exist on the right to reproduction, but it also consists of the right to works derived from the original works. For ex: the right of public performance.

Work in which Copyright Subsists [Section 13]

a) Originally literary, dramatic, musical and artistic works;

b) Cinematograph films; and

c) Sound recordings.

Author and Ownership of Copyright

Chapter 4 of the Indian Copyright Act, 1957 deals with Ownership of Copyright and the Rights of the Owner.

Section 2(d) of the Copyright Act defines “Author” as:

(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.

The copyright provision does not recognize any copyright in an idea. In Donoghue v. Allied Newspaper[9], it was held that “since there is no copyright in ideas even if they are original, the originator of a brilliant idea is not the owner of the copyright of the work, unless he is also the creator of the work”.

Ownership of Copyright

Section 17 of Copyright Act, 1957 states that the author of the work shall be the first owner of the copyright. Except in following circumstances[10]:

17(a) Author an employee: Where a literary, dramatic or artistic work has been created in the course of employment under a contract of service or apprenticeship for the purpose of publication in a newspaper, magazine or similar periodical, the employer is to be the first owner of the copyright in the work.

17(b) Work created for valuable consideration: Where a photograph has been taken or a painting or portrait drawn or engraving or cinematograph film has been made for a valuable consideration at the instance of any person, such person is to be the first owner of the copyright unless there is an agreement to the contrary.

17(c) Copyright of employee-author: If the above-stated conditions are not applicable, the employee is to be the first owner unless there is an agreement to the contrary. The employer is said to be the proprietor of the copyright of the work created by his employee during employment. The employee has to prove that the work in question was his creation.

17(cc) Address or Speech: Where an address or speech has been delivered in public, the person delivering it is the first owner. If he has done so on behalf of another person, such other person is to be the first owner.

17(d) Government Work: In the case of government work, the government is the first owner, unless there is a contract to the contrary. Section 2(k) defines “Government Work” as work which has been made or published by or under the direction of Government or Department of Government, Legislature of India, any court, Tribunal or judicial authority in India.

17(dd) Public Undertaking: Work has been done or first published by or under the direction or control of public undertaking, such public undertaking is to be the first owner unless there is an agreement to the contrary.

17(e) Work of International Organization: When a work is considered to be a work of an international organization than under the provision of section 41, the international organization shall be considered the first owner of the copyright.

Rights Conferred by Copyright Law

Following rights are conferred to the owner of Copyright over the years:

1. Berne Convention of 1886[11]

· The Translation Right - exclusive right to authorize the translation of their works for a period of ten years from the publication of the original work in one of the Convention countries.

· Public Representations, Right of Public Performance –this right authorizes public representations of such works was subject to national treatment.

2. The Paris Revision Conference of 1896[12]

· The Translation Right - Author’s exclusive right to authorize translations of their works by extending the exclusive right from a term of ten years to the whole term of protection of the original work.

· The Recording Right - Exclusive right to authorize the adaptation of their musical works to instruments serving to reproduce the works mechanically (recording), and the public performance of these same works by means of mechanical instruments.

· The Cinematographic Right – This right to authors to authorize the reproduction and the public representation of their works by means of cinematograph.

3. Rome Revision Conference of 1928[13]

· The Moral Right - The moral right granted authors the right to claim "paternity"' of their works as well as "the right to object to any deformation, mutilation or other modification"' of the work which would be "'prejudicial"' to the author's honor or reputation.

· The Broadcasting Right - The exclusive right of authorizing the communication of their works to the public by radio communication.

4. Brussels Revision Conference of 1948[14]

· The Right of Public Recitation - An author's moral right was guaranteed during his or her lifetime; contracting Nation were not bound to recognize the moral right after the author's death. But under the 1948 Brussels Convention, the contracting states were required to recognize the moral right for the whole term of copyright, in most cases fifty years after death.

· Right of Public Performance – Nations agreed to make the right of public performance and representation a minimum right. Consequently, authors of dramatic, dramatico -musical, or musical works enjoyed the exclusive right to authorize public presentations and performances of their works.

· The Broadcasting Right - The scope of the broadcasting right adopted in Rome in 1928 by including television and loudspeakers within its coverage.

· The Right of Public Recitation - An author's exclusive right to authorize the public recitation of his or her works.

· The Right of Adaptation, Arrangement and Alteration - The author's exclusive right to authorize adaptations, arrangements and other alterations of his work was clarified at the Brussels revision conference. The right had previously existed under the Rome Act of 1928, but its formulation was unclear. The new right of adaptation required adaptors to request express permission from authors before adapting a work. Once the adaptor received permission and completed the adaptation, the Convention protected the adapter's work as an original work. Therefore, those who wished to perform or broadcast the adaptation were required to secure permission from both the original author and the adaptor.

· The Recording Right - The Brussels conferees retained the old recording right, but formulated it more clearly. The term "adaptation,"' as used in the original recording right, was criticized for its ambiguity. Adaptation under this new right meant the recording of a musical work onto a phonogram or some other fixed form. It did not mean an adaptation as contemplated in the authors' exclusive right to authorize adaptations of their works.

· The Cinematographic Right - expanded the scope of the cinematographic right by granting authors the exclusive right to authorize the distribution of cinematographic works. With this addition, authors had both the exclusive right to authorize the cinematographic adaptation and reproduction of their literary, scientific or artistic works and an exclusive right to authorize the distribution of those works, a right that was expressly rejected in the area of broadcasting.

· Droit de Suite - The droit de suite gives an author an "inalienable right to an interest in any sale of [his] work subsequent to the first disposal of the work by the author." The purpose of the droit de suite was to remunerate authors for their growing commercial reputation as reflected in the increasing monetary value of their works.

5. Paris Revision Conference of 1971[15]

· The Right of Reproduction - Until 1967, the right of reproduction had never been explicitly stated in the Berne Convention. However, contracting States certainly recognized this right, at least implicitly, because the right of reproduction is the core right of every copyright system. The newly-adopted reproduction right grants authors "the exclusive right of authorizing the reproduction of their works in any manner or form."

· The Right of Recording - The new reproduction right grants authors the exclusive right to authorize any reproductions of their works. This right specifically includes the right to authorize sound or visual recordings of work.

· The Moral Right - Under the original moral right provision, enacted at the

Rome Revision Conference in 1928, Contracting States were required to recognize the moral right until the authors' death. But at the Brussels Revision Conference, the contracting states strengthened the right somewhat by encouraging Union members to extend the moral right past the authors' death. Finally, at Stockholm, the conferees required Union members to recognize the authors' moral right after death for at least as long as the author's economic right was protected.

· The Cinematographic Right - broadened the cinematographic right by giving authors the exclusive right to permit "the public performance and communication to the public by wire" of any cinematographic work.

· The Exclusive Rights of Artistic Contributors to Films - The creation of the exclusive right of artistic contributors to films was the most discussed substantive change during the Stockholm conference.

Nature of Rights[16]

From above we can deduce following rights:

· Statutory Rights

The Copyright in a work is a creation of statute. A person owns a copyright because the law recognizes the existence of such a right. Section 14 of Copyright Act defines such rights.

· Negative Rights

Copyright is a negative right because it stops others from exploiting the work of the other author for their own benefit without the consent or license of the author.

· Multiple Rights

Copyright is not a single right but a bundle of rights which can exist and be exploited independently. The nature of these multiple rights depends upon the category of work.

· Economic Rights

The rights conferred by Section 14 on a copyright owner are economic rights because the exploitation of the work by the author by exercising these rights may bring economic benefit.

· Moral Rights

The Copyright besides conferring economic benefits also confers moral rights on the author. These rights are as follows:

§ The right to decide whether to publish or not to publish the work i.e., the right of publication.

§ The right to claim authorship of a published or exhibited work.

§ The right to prevent alteration and other actions that may damage the author’s honor or reputation- the right of integrity.

Infringement of Copyright: Effect & Remedies

Section 51 enumerates when copyright shall be deemed to be infringed, whereas Section 63 prescribes the punishment for the infringement of the copyright.

Section 51 says Copyright is deemed to be infringed-

(a) when any person, without a licence granted by the owner of Copyright or the Registrar of Copyrights under this Act or in contravention of any conditions of license so granted or any condition imposed by a competent authority under this Act-

i. does anything, the exclusive right to do by this Act is conferred upon the owner of the copyright, or

ii. permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or

(b) When any person-

i. makes for sale or hire or by way of trade displays or offers for sale or hire, or

ii. distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or

iii. by way of trade exhibits in public, or

iv. Imports into India, any infringing copies of the work.

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Explanation. - For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".

Judicial Pronouncements

When a writer or a dramatist produces a drama, it is the result of his great labour, energy, time and ability and if any other person is allowed to appropriate the labours of the copyright work, his act amounts to theft by depriving the original owner of the copyright of the product of his labour. The surest and safest test to determine the violation of copyright is to see if the reader, spectator, viewer is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original[17].

People are at liberty to draw upon common source of information. But if he saves himself from the trouble and labour requisite for collecting that information by adopting another’s work with colorable variations, he is guilty of infringement of copyright, even though the original work is based on materials which are common property[18].

In Schlesinger v. Turner[19] it was held that plays based upon novels which in turn were based upon original play amounted to infringement of the original play.

In case of Francis Day and Hunter v. Bron[20] it was held that infringement of copyright in a musical work is not to be determined by a note for a note comparison, but should be determined by the ear as well as the eye.

In case of King Features Syndicate v. Kleeman[21] it was held that a reproduction copied not directly from the original artistic work or a sketch of it but copied from a reproduction in material form derived directly or indirectly from the original work, is an infringement of the original artistic work.

Remedies against Infringement of Copyright

There are 3 kind of remedies against the infringement of copyright, namely[22]

1. Civil Remedies

Includes Injunction, damages or account of profit, delivery of infringing copies and damages for conversion.

Following are the kind of Civil Remedies to which a Plaintiff is entitled to[23]:

a. Anton Pillar Order – In certain cases the court may, on an application by the plaintiff accompanied by attorney to enter his premises and make an inspection of relevant documents and articles and take copies thereof or remove them for safe custody. Such an order is called an Anton Pillar Order.

b. Interlocutory Injunction – It secures the immediate protection of copyright from an existing infringement or from the continuance of infringement or an anticipated infringement.

c. Damages or account of Profit

Plaintiff is entitled to two types of damages: One for the infringement of his copyright and the other for conversion of his copyrighted work into another form.

2. Criminal Remedies

Includes imprisonment of the accused or imposition of fine or both. Seizure of infringing copies. The infringement of copyright has been declared as an offence, punishable with imprisonment which may extent from a min. period of 6 months to a max. of 3 year and with a fine of 50,000 to 2 Lakhs.

3. Administrative Remedies

It consists of moving to Registrar of Copyright to ban the import of infringing copies into India when infringement is by the way of such importation.

Statutory Exception to Copyright Infringement

Section 52. Certain Acts not to be Infringement of Copyright –

The following acts shall not constitute an infringement of copyright, namely[24]:

1. a fair dealing with a literary, dramatic, musical or artistic work not being a computer programme for the purposes of private use, including research, criticism or review, making copies of computer programme for certain purposes, reporting current events in a newspaper and magazine or by broadcast or in a cinematograph film or by means of photographs.

2. Reproduction of judicial proceeding and reports thereof, reproduction exclusively for the use of members of Legislature, reproduction (artistic work excluded) in a certified copy supplied in accordance with law.

3. Reading or recitation in public of extracts of literary or dramatic work.

4. Publication in a collection for the use in educational institutions in certain circumstances.

5. Reproduction by a teacher or pupil in the course of instruction; or in questions papers or answers.

6. Performance in the course of the activities of an educational institution in certain circumstances.

7. The making of sound recordings in respect of any literary, dramatic or musical work, if-

i. sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work;

ii. the person making the sound recordings has given a notice of his intention to make the sound recordings, has provided copies of all covers or labels with which the sound recordings are to be sold, and has paid in the prescribed manner to the owner of rights in the work royalties in respect of all such sound recordings to be made by him, at the rate fixed by the Copyright Board in this behalf:

Provided that-

(i) no alterations shall be made which have not been made previously by or with the consent of the owner of rights, or which are not reasonably necessary for the adaptation of the work for the purpose of making the sound recordings;

(ii) the sound recordings shall not be issued in any form of packaging or with any label which is likely to mislead or confuse the public as to their identity;

(iii) no such sound recording shall be made until the expiration of two calendar years after the end of the year in which the first sound recording of the work was made; and

(iv) the person making such sound recordings shall allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such sound recording:

Provided further that if on a complaint brought before the Copyright Board to the effect that the owner of rights has not been paid in full for any sound recordings purporting to be made in pursuance of this clause, the Copyright Board is, prima facie, satisfied that the complaint is genuine, it may pass an order ex parte directing the person making the sound recording to cease from making further copies and, after holding such inquiry as it considers necessary, make such further order as it may deem fit, including an order for payment of royalty;

8. The causing of a recording to be heard in public utilising it in an enclosed room or in clubs in certain circumstances.

9. Performance in an amateur club given to a non-paying audience, or for religious institution.

10. Reproduction in a newspaper, magazine of an article on current economic, political, social or religious topics in certain circumstances.

11. Publication in a newspaper, magazine a report of a lecture delivered in public.

12. Making of not more than three copies of a book for the use of public library.

13. Reproduction of an unpublished work kept in a library, museum or other institution to which the public has access.

14. Reproduction or publication of any matter published in Official Gazette or reports of Government Commissions/Committees or other bodies appointed by Government.

15. Reproduction of any judgment or order of a court, tribunal or other judicial authority, not prohibited for publication.

16. Production or publication of a translation of Acts of Legislature or Rules.

17. Making or publishing of a painting, drawings or a photograph of a work of architecture.

18. Making or publishing of a painting, drawing or photograph or engraving of sculpture or other artistic work permanently situate in a public place.

19. Inclusion in a cinematograph film of any artistic work permanently situate in a public place and other artistic work by way of background or incidental to the principal matters represented in the film.

20. Reproduction for the purpose of research or private study or with a view to publication of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access.

Acts which do not amount to infringement in respect of Computer Programmes

Section 52. (aa) the of or adaptation of a by the lawful possessor of a copy of such computer programme, from such copy-

i. in order to utilise the computer programme for the purposes for which it was supplied; or

ii. to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilise the computer programme for the purpose for which it was supplied.

(ab) the doing of any act necessary to obtain information essential for operating inter-operability of an independently created computer programme with other programmes by a lawful possessor of a computer programme provided that such information is not otherwise readily available;

(ac) the observation, study or test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied;

(ad) the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use.

Conclusion

The Law which was formulated for the Economic benefit of the Publishers in early 15^th Century due to unauthorized printing has taken a much bigger form today. Today Copyright no only exist on the literary work but also on Art, Drama, Music, Cinematography, Photography and Computer Programmes as well.

As the ideology shifted from Economic benefits to Authors/Owners benefit & Rights, around the world people started understanding the importance of one’s Intellectual Property. Over the years numerous Right has be given force to protect from misuse without permission. State has given more importance to one’s creation then Monetary benefits of others. With these Authors Right, State has also provided some statutory exception to these rights so that public also gets a chance to learn about the Copyright protected work.

Copyright law is not just for securing the Economic benefit of Authors but it is also a way from not being robbed of your Ideas by others.

*Disclaimer: The contents of the blog are not intended to convey any legal advice to the reader neither the blog creates any attorney-client relationship. You may contact an enrolled legal practitioner for assistance with your legal needs.*

[1] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 263

[2] Eastern Book Co. v. D.B. Modak (2008) 1 SCC 1 : AIR 2008 SC 809

[3] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 263

[8] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 264

[9] Donoghue v. Allied Newspaper (1937) 3 All ER 503

[10] Business Law, 9^th Ed. By Avtar Singh; Eastern Book Company; pg. 801-pg. 803

[16] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 298

[17] R.G. Anand v. Delux Films (1978) 4 SCC 118,127.

[18] Business Law by Avtar Singh; 9^th Ed., Eastern Book Company pg.824 / Shyam Shah v. Gaya Prasad Gupta, AIR 1971 All 192

[19] Schlesinger v. Turner (1890) 63 LT 764

[20] Francis Day and Hunter v. Bron, (1963) 2 All ER 16

[21] King Features Syndicate v. Kleeman, (1941) 58 RPC 207

[22] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 334

[23] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 336

[24] Law Relating to Intellectual Property, 4th Ed. By Dr. B.L. Wadehra, Universal Law Publishing Co. pg. 320

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Right of Authors and Others under the Indian Copyright Act