IMPORTANCE OF COPYRIGHT LAW
When a person creates a literary, musical, dramatical, scientific, or artistic work, he or she is the author of the work and is free to decide the future of the work. No person can make use of this work but by taking permission from the owner of the work.
The work of the author protected by the law. The law is given an exclusive right to the author for a certain term of years.
Copyright is the legal protection extended to the author of the right in an original work that he has created. The word copyright is derived from the expression ‘copier of works’ first used in the context, according to the oxford dictionary in 1586.
“An artistic, literary or musical work is the brainchild of the author, the fruit for his labor and so, considered to be his property. So highly is it prized by all civilized nations that it is thought worthy of protection by natural laws and international conventions?”
NON-LEGAL DEFINITION OF COPYRIGHT
Copyright derives from the expression of “copies of words” first used in the context, according to the oxford dictionary in 1586. The word “copy” alone probably dates from circa 1485 and was used to connote a manuscript or other matter prepared for printing.
The oxford legal dictionary defines ‘copyright’ as ‘the exclusive right given by law for certain terms of years to an author, composer etc. to print, publish and sell copies of his original. Work. Copyright is an exclusive right given by law for a certain term of years to an author, composer, etc. or his assignee to print, publish and sell copies of his original work,
Copyright is the exclusive right granted by law for a certain number of years to make and dispose of and otherwise to control copies of literary, musical, or artistic works.
CREATION OF STATUTE
Copyright is the creation of a statute. No person is entitled to copyright in any work except those provided under the copyright act. The copyright law in essence concerned with the negative right of preventing the copying of physical material, existing in the field of literature and art. Its object is to protect the author from the unlawful reproduction of his material. It is concerned only with the reproduction of ideas and it does not give a monopoly to any particular form of words. If it could be shown that two precisely similar works were, in fact, produced wholly, independently from one another, the author of the work that was published first would have no right to restrain the publication of the other author’s independent and original work.
OBJECT OF COPYRIGHT
The object of copyright law is to encourage authors to create original works by rewarding them with the exclusive right for a specified period of time to reproduce the works for publishing and selling them to the public.
Copyright has a special role to play in today’s world, particularly in the context of development. During the last five decades when the political map of the world changed considerably and several states became independent and other states were newly created, these developing countries have had to cope with the enormous problems of education of the vast masses of their people. On the other hand, care must always be taken not to allow them to be made the instruments of oppression and extortion.
Some countries were facing challenges in respect of encouraging and fostering intellectual property, while satisfying the urgent needs for promotion of knowledge, in particular knowledge in the field of art, science, and technology.
In the course of development programs and in the attempts towards a new international economic order due emphasis is being laid on the development of science and education as a means to economic development. There has been a marked realization in a number of countries of the need to protect literary and artistic works as a source of special progress and cultural development. In this regard, the Berne convention played a significant role in facilitating the urgent needs protection involve of the newly developing countries to have access in a less expensive way to works of the minds of countries, while at the same time assisting in the need for the protection of author right in their relevant national legislations.
Copyright protection involves ensuring not only payment of attractive and reasonable royalties to the authors, but also suitable protection for publishers for the opportunity available to an author to have his work disseminated depends equally on the laws protecting publishers, any country wishing to stimulate inspire its authors, composers, artist and thus augment its national cultural heritage must provide effective copyright protection.
The role of the copyright at the national level is to encourage creativeness; achieve progress in arts and science; promote territory industries, i.e. books, entertainment, record films, etc. to promote the activities of the media and to enlarge the content of the national cultural heritage; while at the international level it is to facilitate cultural exchanges achieve integration in international relations, and increase the role of the developing countries within the international community.
Copyright protects works from being copied without permission. Copyright goes beyond mere copying, however, and extends to other activities such as making an adaptation of the work in question, performing or showing the work in public, broadcasting the work, and dealing with infringing copies of the work. In India, the term of copyright is 60 years.
The object of copyright law is to protect the original work from an unlawful reproduction or exploitation of the work. Copyrights provide protection to authors of “original works that are produced in a tangible form of expression. The tangible form of expression need not be directly perceptible, so long as it may be communicated with the aid of a machine or device. It protects original artistic, literary (including computer programs, compilations, and databases) and musical and cinematographic works produced through one’s own skill, labor, intellectual efforts, and creativity. Copyright protection is available to both published and unpublished works. Copyright can be claimed in Literary Works; Computer Programs; Musical works (including any accompanying words), dramatic works (including any accompanying music); Pantomimes and choreographic works; pictorial, graphic, and sculptural works; Motion pictures and other audiovisual works; sound recordings; and Architectural works.
Copyright protection arises automatically on the work being created and does not depend on registration. But registration confers statutory rights and is the prima-facie title of ownership.
Copyright protection subsists from the time the work is created in a fixed form and immediately becomes the property of the author who created it.
Works authored by employees, working within the scope of their employment, are generally considered “works-made-for-hire”, in which case the employer, rather than the employee, is treated as the author and owner of the copyright in the work. Certain works by non-employees may also be “works-made-for-hire” but only if the parties involved agree in writing that the work will be treated as such. The authors of a joint work are co-owners of the copyright in the work unless there is an agreement to the contrary. Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole.
INDIA: STATEMENT OF OBJECT AND REASON
In ancient days creative persons like artists, musicians, and writers made, composed or wrote their works for fame and recognition rather than to earn living, thus the questions of copyright never arose. The importance of copyright was recognized only after the invention of the printing press which enabled the reproduction of books in large quantity practicable. In India before the copyright act, 1937wa enacted by Parliament, the existing law relating to copyright in India, i.e. its statutory basis was the British parliament legislation to be found in the imperial copyright act, 1911 as modified by Indian copyright act 1914. Apart from the fact that the imperial copyright act, 1911 did not fit in with the changed constitutional status of India, it was necessary to enact an independent self-contained law on the subject matter of copyright in the light of growing people consciousness of the rights and obligations of authors and in the light experience gained in the working of the law concerned. New and advanced means of communication like broadcasting, litho-photography, etc.; also called for certain amendments in the existing laws, apart from making therein provision for the due fulfillment of international obligations in the field of copyright which India might accept. That was the object with which the copyright act, 1957 was enacted, and it attempted a complete revision of the law of copyright act, 1957 was enacted, and it attempted a complete revision of the law of copyright which appeared to be inevitable due to the changed circumstances. To this effect a copyright bill, 1957 was introduced in the parliament. It has introduced several features which are briefly indicated below:
- A copyright office is sought to be established under the immediate control of the registrar of copyright who shall act under the superintendence and direction of the central government. The main function is to maintain the registers of copyrights.
- Provisions are made for setting the fees, rates, charges, or royalties claimed by performing the societies, consider an application for general licenses for the public performance of work, and compensate. an appeal lies to the high court against the decisions of the copyright board.
- The definition of copyright is enlarged is to include the exclusive right.
- A cinematograph film will have separate copyright apart from the sound. Music etc.
- A license may be issued to any library to make or cause to be made one copy of any book in which copyright subsists and which is not available for sale.
IMPORTANCE OF COPYRIGHT LAW
There are many spheres in which the law of copyright plays a very important part and the wide variety of acts that may constitute an infringement of copyright make this branch of law one which in a literature society ought to be known to everyone.
Today copyright serves a variety of industries including production and distribution of books, magazines,s and newspapers media of entertainment that is dramatic and musical work for performances, the publication of musical work and cinema, television and broadcasting, and industrial designs.
Copyright problems in some respect are international problems. Copyright, being intellectual property, travel from country to country more easily and quickly than other kinds of property. Technological progress has made copying of copyright easy and simple. Consequently, the control of copyright infringement has become very difficult and often impossible. Books, recorded tapes, or video cassettes of films or computer programs can be taken from one country to another without any difficulty, and thousands of copies made from it and distributed. Unauthorized home taping of radio and television programs have become common all over the world. Photocopying has made unauthorized copying of copyright material simple and inexpensive.
GENERAL PRINCIPLES OF COPYRIGHT
The moral basis for protection under copyright laws rests in the eight commandments: “thou shall not steal” the law does not permit one to appropriate to himself what has been produced by the labor, skill, and capital of another. This is the very foundation and philosophy of copyright law.
The general principles are reflected in art-27 of the universal declaration of human rights:
- “Everyone has the right freely to participate in the cultural life of the community to enjoy the arts and share in scientific advancement and its benefits.
- Everyone has the right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
COPYRIGHT ACT 1957
The act of 1957 besides consolidating and amending the law relating to copyright, also introduced a number of changes and new provisions. The act provides for the setting up of a copyright office under the control of the registrar of copyright, for the purpose of registration of books and other works of art, and for certain other functions. A body called the copyright board was created under the act, authorized to deal with certain kinds of disputes pertaining to copyright. The orders passed by the registrar of copyrights and the copyright board in certain matters are appealable.
The copyright act came into force on 21st January 1958. On the same day, the central government under powers conferred by the act passed two orders, S.R.O. NO. 272, in respect of international copyright. These orders also came into force on 21st January 1958.
FEATURES OF COPYRIGHT
- Creation of copyright office and a copyright board to facilitate registration of copyright.
- Definition of various categories of works in which copyright subsists and the scope of the right conferred on the author under this act.
- Terms of the copyright for different categories of works.
- Broadcasting rights.
- International copyright.
- Definition of infringement of copyright.
- An exception to the exclusive right conferred on the authors.
- Author special right.
- Civil and criminal remedies for infringement.
SUBJECT MATTER OF COPYRIGHT
Section 13 provides that subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say.
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:
(1) Literary works;
(2) Musical works, including any accompanying words;
(3) Dramatic works, including any accompanying music;
(4) Pantomimes and choreographic works;
(5) Pictorial, graphic, and sculptural works;
(6) Motion pictures and other audio-visual works;
(7) Sound recordings; and
(8) Architectural works.
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
(1) Other than a work to which the provisions of section 40 or section 41 apply, unless,-
(i) In the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India; he works specified by sections 102 and 103, when published, are subject to protection under this title if—
(1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or
(2) The work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or
(3) The work is a sound recording that was first fixed in a treaty party; or
(4) the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or
(5) The work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or
(6) The work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliary of the United States or to works that are first published in the United States, copyright protection on substantially the same basis as that on which the foreign nation extends protection to works of its own nationals and domiciliary and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation.
For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be.
(c) Effect of Berne Convention. — No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derives from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto.
(d) Effect of Phonograms Treaties. — Notwithstanding the provisions of subsection (b), no works other than sound recordings shall be eligible for protection under this title solely by virtue of the adherence of the United States to the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty.
COPYRIGHT SHALL NOT subsist–
(a) In any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;
(b) In any sound recording made in respect of a literary, dramatic or musical work, if in making the sound recording, copyright in such work has been infringed.
The copyright in a cinematograph film or a sound recording shall not affect the separate copyright in any work in respect of which or a subtending.’ part of which, the film, or as the case may be, the sound recording is made.
In the case of a work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.
Different time limits apply to copyright in different formats. The most common are listed below.
Copyright in a literary, dramatic, musical or artistic work expires at the end of the period of 70 years from the end of the calendar year in which the author dies.
If the work is of unknown authorship, copyright expires at the end of a period of 70 years from the end of the calendar year in which it is first made available to the public.
Computer-generated works and films are protected for 70 years from the end of the calendar year in which they were first released.
Sound recordings and broadcasts are protected for 50 years from the end of the calendar year in which they were first released.
Limitations and exceptions to copyright are provisions in copyright law that allow for copyrighted works to be used without a license from the copyright owner. The scope of copyright limitations and exceptions became a subject of matter of controversy in the late 1990s and early 2000s, in various nations. It is largely due to the impact of digital technology, there are various changes in national copyright legislation for compliance with TRIPS, and there is various enactment of anti-circumvention rules in response to the WIPO Copyright Treaty. It is becoming increasingly a topic of political debate. The Limitations and exceptions are also the subjects of significant regulation by global treaties. These treaties are harmonized the exclusive rights which must be provided by copyright laws, and the Berne three-step test operates to constrain the kinds of copyright exceptions and limitations which individual nations can enact. There are some important examples of limitations and exceptions to copyright two of them are the fair use doctrine found in the United States, and the fair dealing doctrine found in many other common law countries. There are various fundamental boundaries of copyright which are caused by thresholds of originality, a threshold below which objects cease to be copyrightable.
There are exceptions to the exclusive rights enjoyed by owners of copyright in literary, dramatic, and musical works.
There is no copyright infringement if:
- you obtain permission from the copyright owner;
- the copyright is owned by the University;
- the material has been supplied to the University with a license to copy;
- the proposed copying and/or communication falls within provisions in the Copyright Act that allow ‘insubstantial amounts’ of copying without payment; or
The copying is covered by the statutory license; by this license universities pay creators, through Copyright Agency Limited (CAL), for use of their copyright work.
LIMITATIONS OF COPYRIGHT
Though copyright law provides a creator with several critical and powerful rights over their work, those rights are not unlimited. The law has always recognized the need to balance the rights of the copyright holder with the good of the public and provisions in the law have aimed to do exactly that.
One of the most obvious and important limitations to copyright is that it is not perpetual and expires after a set amount of time. The length of copyright on work created during or after 1978 is the life of the author plus seventy years. For works of corporate authorship, the term is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter. When copyright expires, the work falls into the public domain. In the public domain, the work is considered to be a part of our cultural heritage and is not subject to any copyright limitations. This means that anyone can exploit work for both commercial and non-commercial gain.
Copyright holders do have the ability to place works into the public domain themselves, the Creative Commons organization offers a license to do just that, but once that step is taken, it cannot be undone.
Though the orphan works legislation is currently just a bill the significant limitations it places upon copyright and the likelihood of it passing make it a worthwhile topic.
Many times, when someone wishes to use a copyrighted work, the person or entity that holds that right either cannot be located or discovered. Even though the work is assumed to be protected by copyright, there is no way for someone wishing to reuse it to obtain permission to do so, thus leaving the work in a form of limbo. The orphan work legislation addresses that by allowing the use of copyrighted work where the owner cannot be determined so long as
- A) The user has performed a “reasonable search” and
- B) The work is attributed as well as possible or listed as an orphan work.
Orphan works can be used for both commercial and non-commercial use as well as to create derivative works. Should the copyright holder of a work surface after the work has been used, he or she can stop the usage almost immediately but is only entitled to a reasonable license fee in the event that the use was commercial.
While not designed to place any new limitations of an owner’s copyright it does mean that you can lose several key elements of copyright protection if you cannot be determined to be the copyright holder of the work or cannot be located.
Fair use is probably the best-known limitation to an owner’s copyright and also the least clear.
There is no set rule that defines what is and is not fair use. Rather, fair use is defined by a framework that is applied on a case-by-case basis. Whether or not a use is “fair” can only be effectively determined by a court.
Despite that, when one takes a look at elements that make up a fair use case, either for or against, it’s usually easy to tell where such a use would fall.
- The nature and character of the use. Fair use strongly favours education, commentary, criticism, and news-related uses of a work and disfavor purely commercial uses.
- The nature of the copyrighted work. Copyrighted works that are fictional and unpublished, generally, get a higher level of protection than works that are factual in nature and widely available.
- The amount and substantiality of the portion used. With fair use, less is more. Generally, the law favors use that involves a portion of a work that is very small in relation to the whole. Exceptions are often made for works that cannot easily be broken down, for example, photographs.
- The effect of the use upon the potential market for or value of the copyrighted work. Finally, fair use looks at the impact the use had on the market or value for the work and favors instances where the user had either a positive impact or a minimal negative one.
In general, when trying to build a fair use case, it’s a good idea to take only what you absolutely need, make sure that your use is for some kind of public good, and that the use damages the copyright holder as little as possible.
It is also worth noting that, generally speaking, attribution is viewed as a requirement in building a fair use case. Though it is generally viewed as just one element in a fair use argument (under the character of the use), it is weighed so heavily that almost any non-attributed use becomes a copyright violation.
REVIEW OF LITERATURE
Copyright is a kind of intellectual property. Due to the rapid technological development in the field of printing, music, communication, entertainment, and computers, the importance of copyright has increased. When a person creates a literary, dramatical, musical, scientific, or artistic work then he or she is the author of the work and they are free to decide their use. The work is protected by copyright. Copyright is an exclusive right that is given by the law to the author for protecting the work which is created by the author. Copyright is the legal protection extended to the author of the rights in an original work that he has created. The law of copyright gave protection to literary, dramatic, or musical work, artists, architects, cinematograph films, and sound recording. In the rapid changes in the technological environment. The right given by law for certain terms of years to an author, composer, etc. or his assignee to print, publish and sell copies of his original work. The object of copyright is to encourage authors to create original works by rewarding them into the exclusive rights for a specified period to reproduce the works for publishing and selling them to the public.
Lawrence Laing examines the nature of exceptions and limitations in copyright law for the purposes of the use of copyrighted materials for education. It looks at the existing national and international regime and argues for why there is a need for greater exceptions and limitations to address the needs of developing The Lawrence contextualizes the debate by looking at the high costs of learning materials and the impediment caused to e-learning and distance education by strong copyright regimes. Exceptions and limitations can be in the form of statutory or compulsory licenses, or they can be incorporated into fair dealing provisions. These exceptions can either be compensated or uncompensated, though generally within the context of fair dealing provisions, uses are uncompensated.Samuel Ricketson in his analysis of limitations and exceptions. He states that “the words ‘by way of illustration’ impose some limitations, but would not exclude the use of the whole of a work in countries appropriate circumstances.”This reading makes particular sense in the context of the article considering that many works—poems, photographs, paintings, for example—require reproduction in full in order to be of any pedagogical value. Moreover, if quantitative restrictions are read into Art. 10(2), then the article would be superfluous with another of the treaty’s provisions, the exception for quotation rights provided for in article 10 (1). P. BerntHugenholtzand Ruth L. Okediji say that It is a well-established principle of copyright doctrine that the qualified grant of proprietary rights over the fruits of creative enterprise is directed first and foremost at the promotion of the public interest. Many countries around the world explicitly recognize this vital goal as a foundational element of their copyright systems. Indeed, from the very first formal copyright law, the British Statute of Anne (1710), the encouragement of learning and dissemination of knowledge as a means to enhance the general welfare have been chief objectives behind the grant of exclusive rights to authors.For over one hundred years, this public-centered rationale of copyright protection has been recognized and clearly articulated in all major instruments for the global regulation of copyright.The currently preeminent global intellectual property (IP) treaty, the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) concluded under the auspices of the World Trade Organization (WTO) in 1994, recently reflected and reaffirmed this basic precept by describing the overarching objective of intellectual property protection under the Agreement as “the mutual advantage of producers and users of technological knowledge . . . conducive to social and economic welfare.”Pamela samuelsonModern copyright laws grant authors a broad set of rights to control exploitations of their works.Typically tempering the reach of these broad rights are a series of limitations and exceptions (L&Es) adopted by legislatures or developed by courts through common law adjudication. L&Es uniformly result in free uses of protected works under U.S. copyright law, although in other countries, some L&Es may be subject to equitable remuneration obligations. L&E provisions in national copyright laws often seem a hodgepodge of special purpose provisions whose policy justifications are sometimes difficult to discern.
STATEMENT OF PROBLEM
The present study intends to focus on the limitation and exceptions of the copyright law of India on envisaged in the copyright act 1957. This study is backed by the notion that the copyright had played crucial role for the protection of public interest but still there are some shortcomings in the present law. So my study focus on this issue that how can overcome this problem.
The study is carried out to achieve the following objectives:
1) To study the concept of copyright.
2) To study the exceptions and limitations of copyright.
3) To examine the international copyright legal System
4) To review the cases
On the one hand the copyright law has laid down an important role in protection of public interest but on the other hand it is still many limitations and drawbacks which need to be addressed.
All the questions could be answered from the collected Books, Articles and other references. Analysis of various cases and literature which has been collected from various sources is the prime method for deriving conclusions. In order to achieve the objectives, the methodology used in this research was explorative and analytical nature. The data was collected from various secondary sources like books, articles, journals, case report and internet will be used for the purpose. Opinions from various legal experts will be collected. Accessing internet resources will also be a predominant methodology.