By Dr. Shipra Gupta
Copyright is a form of intellectual property protection granted under Indian law to the creators of original works of authorship such as literary works (including computer programs, tables and compilations including computer databases which may be expressed in words, codes, schemes or in any other form, including a machine-readable medium), dramatic, musical and artistic works, cinematographic films and sound recordings.
Copyright law protects expressions of ideas rather than the ideas themselves. Under copyright law in India, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recordings. For example, books and computer programs are protected under the Act as literary works.
Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of copyright law in India. These rights can be exercised only by the owner of copyright or by any other person duly licensed by the owner. They include the right of adaptation, reproduction, publication, making translations and communication to the public.
Copyright protection is conferred on all original work. Original means that the work has not been copied from any other source. Copyright protection commences the moment a work is created, and its registration is optional. However, it is always advisable to obtain registration for better protection. Copyright registration does not confer any rights and is merely a prima facie proof of an entry in respect of the work in the Copyright Register maintained by the Registrar of Copyrights.
As per copyright law, the author or creator of the work is the first owner of copyright. An exception to this rule is that the employer becomes the owner of copyright in circumstances where an employee creates a work in the course of and within the scope of employment.
One of the supreme advantages of copyright protection is that protection is available in several countries across the world, although the work is first published in India, by reason of India being a member of the Berne Convention. Protection is given to works first published in India in respect of all countries that are member states to treaties and conventions to which India is a member. The Government of India has, by virtue of the International Copyright Order, 1999, extended copyright protection to works first published outside India.
INDIAN JUDICIARY RESPONSE
The response of the Indian judiciary regarding copyright protection can be grouped under the following headings:
- Ownership of copyright: The ownership in copyright may vest in different persons under different circumstances. In Godrej Soaps (P) Ltd. v. Dora Cosmetics Co., the Delhi High Court held that where a carton was designed for valuable consideration by a person in the course of his employment for and on behalf of the plaintiff and the defendant had led no evidence in his favour, the plaintiff was the assignee and legal owner of copyright in the carton including the logo.
- Jurisdictional aspect: The question of territorial jurisdiction of the court to deal with copyright infringement was considered on several occasions. In Lachhman Das Behari Lal v. Padam Trading Co., the Delhi High Court observed that the plaintiff, being a firm functioning at Delhi, could maintain the suit in the Delhi courts and that the plaint was not liable to be rejected under Order 7 Rule 11 CPC. Even if the court lacked territorial jurisdiction, the plaint could at most be returned for presentation to the proper court.
- Cognizance taken by the court: To prevent copyright infringement, timely cognizance by the appropriate court is essential. The taking of cognizance depends upon the limitation period under the Limitation Act, 1963 and the Cr.P.C., 1973. In Shree Devendra Somabhai Naik v. Accurate Transheet Pvt. Ltd., the Gujarat High Court explained the inter-relationship between Article 137 of the Limitation Act, 1963 and Section 50 of the Copyright Act, 1957.
- Infringement of copyright: A copyright owner cannot enjoy his rights unless infringement is stringently dealt with by the courts. In Prakashak Puneet Prashant Prakashan v. Distt. Judge, Bulandshahr and Ashok Prakashan (Regd.), the Allahabad High Court held that if a petitioner publishes a book by adding any word before or after the book “Bal Bharati”, he infringes the copyright of the respondent.
- Availability of alternative remedy: The availability of an efficacious alternative remedy prevents a person from invoking the writ jurisdiction of the High Court.
- Rectification of copyright: The article also discusses rectification proceedings and the Copyright Register.
Another area of copyright infringement which needs to be tightened up relates to protection of authors’ rights vis-a-vis the assignee or the licensee. There is a need to develop a model contract which should also provide protection for the author’s rights in the fast-changing scenario of electronic publishing, Internet, etc.
With the amendment of the Copyright Act in 1994, which came into force on 10 May 1995, the situation with regard to copyright enforcement in India has improved. According to Ramdas Bhatkal of Popular Prakashan, Bombay, problems of piracy relating to medical textbooks existed before the law was amended, when obtaining a court order for search gave pirates sufficient notice to take defensive action.
The Indian Copyright Act provides that any police officer, not below the rank of a sub-inspector, may, if satisfied that an offence under Section 63 in respect of infringement of copyright has been, is being, or is likely to be committed, seize without warrant all copies of the work, wherever found, and all copies and plates used for making infringing copies, and produce them before a magistrate as soon as practicable.
Copying a book is similar to stealing somebody’s jewellery. Large-scale organized copying is like robbing a jeweller’s shop or a bank. In a bank robbery the whole might of the State, especially the police, jumps in to catch the culprit. In the case of a book pirate, however, the police may justify inaction by pointing to other dockets, while copyright owners struggle to secure enforcement.
The copyright does not protect the idea but it does protect the skill and the labour put in by the authors in producing the work. A person cannot be held liable for infringement of copyright if he has taken only the idea involved in the work and given expression to the idea in his own way. Two authors can produce two different works from a common source of information, each arranging that information in his own way and using his own language. The arrangement of the information and the language used should not be copied from a work in which copyright subsists.
Despite the variety of cases given in this paper, there is not much piracy of books in India. By and large, publishers and distributors try to enforce copyright to the best of their abilities. Yet piracy hurts them hard because the books which get pirated invariably are the few with good margin and high demand. Deprived of profits from such bestsellers, the book industry is starved of capital for growth and investment in literary works of significance but low sales potential, especially by up-coming authors. Harsher measures are therefore needed to curb piracy.
CONCLUSION
The provisions of the above-mentioned enactments show that copyright protection in India is strong and effective enough to take care of copyright. The protection extends not only to copyright in the traditional sense but also to its modern aspects. Thus, online copyright issues are also adequately protected, though not in clear and express terms.
To meet the ever-increasing challenges posed by changed circumstances and the latest technology, existing law can be interpreted so that all facets of copyright are adequately covered. This can be achieved by applying purposive interpretation, which requires existing law to be interpreted in such a manner that justice is done in the facts and circumstances of the case. Alternatively, existing laws should be amended as required.
The Information Technology Act, 2000 requires a new outlook and orientation and can be effectively used to meet the challenges posed by the Intellectual Property Rights regime in the age of information technology. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in protecting these rights, including copyright.