COPYRIGHT PIRACY & INFRINGEMENT

1. COPYRIGHT PIRACY & INFRINGEMENT Prathiba M. Singh LL.M.(Cantab) F-12, Jangpura Extension New Delhi 110 014 Ph: 91-11-24314741/42 Fax:91-11- 24312895 e-mail: singhandsingh@vsnl.com

2. Statutes Governing Various IPR’s • Trade Marks Act, 1999 • Copyright Act, 1957 • Designs Act, 2000 • The Patents Act, 1970

3. Legislature – Parliament – Statutory Enactments Administrative Machinery – involved in Registration Procedures Departments in the Government viz., Police, Customs, etc., Judiciary Various Entities Involved

4. COPYRIGHT - A GLOBAL RIGHT • Right exists on creation • No registration is needed • Protectable in all Convention countries. • Almost 150 countries are covered • Reciprocal protection in all countries

5. COPYRIGHT • Categories of copyrighted works • literary • artistic • musical • Dramatic • Cinematograph films • Sound Recordings • Broadcaster’s rights • Performer’s Rights

6. Copyright “Computer” includes any electronic or similar device having information processing capabilities (added by amendment in 1995) “Duplicating equipment” means any mechanical contrivance or device used or intended to be used for making copies of any work. “Reprography” means the making of copies of a work, by photocopying or similar means

7. Copyright “Publication means making a work available to the public by means of copies or by communicating the work to the public.” But by a review of cases one can see that protection against what is contemplated under the new WIPO treaty has already been granted by judge-made law.

8. Examples of some works • Choreography: • art of arranging designing of ballet or stage dance in symbolic language. • It is a form of dramatic work. • In order to qualify for the copyright protection it must be reduced into writing.

9. Examples of some works • Ballet: • The elements of ballet are the music, the story, the choreography, the scenery, and the costumes. • A composite work. • Such work could be the subject matter of copyright.

10. Examples of some works • Painting : • An artistic work whether or not it posses any artistic quality . • To be entitled to copyright protection a painting must be original i.e. it should originate from the painter and not a mere copy of another painting. • A painting must be on a surface of some kind. • Facial make-up as such, however idiosyncratic it must be an idea, • cannot possibly be a painting for the purpose of copyright act.

11. Examples of some works • Sculpture: • Included in the definition of artistic work • the work of sculpture includes casts and models. • means the art, act, process of carving cutting, hewing, molding or constructing materials into statutes , ornaments, figures • The act, art, process of producing figures or groups in plastic or hard materials. • The art of sculpture is the branch of the visual arts that is especially concerned with the creation of expressive form in three dimensions. • A sculpture should in some way express in three dimensional form an idea of the sculptor. NEW ENCYCLOPEDIA QUOTED IN WHAM-O CASE. A Frisbee was a sculpture. Copyright subsists original sculpture. The creation of a sculpture no doubt involves good amount of skill and labor

12. Creativity • All Industry be it fashion design, manufacturing of industrial goods, manufacturing of aesthetic items of export, production of jewellery etc. has intellectual creativity in them • Creativity starts from the very moment the creator draws his first sketch, makes improvements on it and finally arrives at the product.

13. Creativity Creation goes through various steps which can be broadly divided • Conception • Design & development • Commercial manufacture.

14. Creativity At each of these stages, there are works which are created that can be protected in law Examples • A drawing or a sketch which can be created as the first conception of a product is a copyrightable subject matter • The shape and aesthetic look given to a product is protectable under the Designs Act • The final product and the brand which is given to the product are protectable under the Trade Mark Act • If the shape is unique and can be identified exclusively with a specific product then the shape is also protectable At every stage there is creation of what is loosely referred to as “Intellectual Property

15. Safeguards • Organisations which are engaged in any of the above stages of creation of a product ought to protect their creation. • Sufficient safeguards ought to be taken to ensure that such works are not misused or plagiarised

16. Safeguards • Whenever designs or any other subject matter of Intellectual Property is created within an organisation, the contract should clearly specify that anything created by the employees during the course of their employment would automatically belong to the organisation which will have the rights to exploit the same

17. Safeguards • Documents relating to the creation should be preserved chronologically in original. The same should be maintained under specific portfolio and should be kept under the custody of any of the Top Management Officials

18. Safeguards • Once the final product is created and before it is sent for industrial manufacture or in the case of a designer product before it is put in the market for sale, steps should be taken to protect it by filing Copyright applications or Design applications • Care must be taken to ensure that no prior publication is made before such applications are filed. This would ensure that in the case of a design, prior publication is not made and in case of copyright. , no one else claims prior rights

19. Safeguards • The applications which are filed should be followed up diligently and registration certificates obtained should be maintained in the records of the organisation. • The Copyright office is located in Delhi. The Designs office comes under the Controller General of Patents and Designs & Trade Marks, which is situated at Kolkata. However, applications can be filed through posts If any misuse of the drawing, design, mark or work is seen, immediate steps should be taken to protect them

20. Defences Available • That the design has been previously registered in India; or • That it has been published in India or in any other country prior to the date of registration; or • That the design is not a new or original design; or • That the design is not registrable under this Act; or • It is not a design as defined under clause (d) of section 2.

21. TERM OF COPYRIGHT • The term of copyright • for literary, dramatic musical or artistic work is lifetime of author + 60 years • for anonymous or pseudonymous work is 60 years from the date of publishing • for a photograph, sound recording, cinematographic film and government work is 60 years from date of publishing of the work

22. INFRINGEMENT OF COPYRIGHT • What constitutes infringement? • Doing or authorizing to do any of the following acts without the consent or license of owner of copyright: • Reproduce the work including its storage by any electronic means • Issue copies to the public • Perform/Communicate the work to public • Make translation of the work • Make adaptation of the work • To make any cinematograph film or sound recording in respect of the work.

23. INFRINGEMENT OF COPYRIGHT • Permit for profit any place to be used for communication of the work when infringement • To permit for profit any place to be used for the communication constitutes infringement of the copyright in the work unless he is not aware or has reasonable grounds for believing that such communication to the public will be an infringement of copyright • make infringing copies of work for sale, hire or display or offer for sale or hire • import infringing copies in India

24. Types of copyright in one work BOOKS: 1. Rights of the author 2. Rights of the publisher in India and abroad 3. Rights of a person publishing the book on CD Rom/multimedia format 4. Rights on the Internet

25. Types of copyright in one work MUSIC: 1. Right of lyricist 2. Music director 3. Singer 4. Orchestra 5. Music company 6. Version recordings

26. Types of copyright in one work • Machinery This can be sub-matter of patent & copyright. But drawings of machinery falls in copyright. Escorts Construction case.

27. Types of copyright in one work • PEPSI CAN • Copyright in the packaging, colours etc. • Trade mark in Pepsi • Copyright in circular device • Copyright in manner of writing Pepsi

28. Adaptations of various works • MUSIC -- SONGS • Original album • New albums • Remixes • Version Recordings • Pop versions • DJ versions

29. Adaptations of various works • STORY • PUBLISHED IN A BOOK • STORY ENACTED IN A DRAMA • TRANSLATION • TELE-SERIAL • CINEMATOGRAPH FILM

30. Adaptations of various works • STORY • OPERA/BALLET • MUSICAL VERSION • COMPILATION Each of the above works, once created have a separate, new copyright, protectable as original works.

31. Adaptations of various works • POEMS • SONGS • SOUND RECORDINGS • PERFORMANCES • POETRY BOOKS • COMPILATIONS OF POETRY, including expert comments

32. Adaptations of various works • PAINTINGS • Licensing as covers for books • Licensing on stamps • Create new versions by changing the sizes of the painting • Calendars • Diaries etc.,

33. Exceptions-fair use • Section 52 of the Copyright Act enlists acts which do not constitute infringement, viz. • Fair dealing for the purpose of private use, including research and criticism or review of the work. • Fair dealing for the purpose of reporting current events in a newspaper, etc. • reproduction for the purpose of judicial proceeding or report of judicial proceeding.

34. Exceptions-fair use • Making of temporary or back-up copies to provide against destruction or damage • Observation, study or testing of functioning of the computer programme • making of copies of software from a legal copy for non-commercial personal use

35. Fair Dealing • Fair dealing is permitted for the purposes of • private study or research , • criticism or • review or • the reporting of current events.

36. Fair Dealing • Fair dealing with the literary, dramatic, musical or artistic work does not infringe any copyright in the work if used • for the purposes of research or private study, • in the case of a published edition, in the typographical arrangement. The aim of this provision is to give students and researchers greater access to copyright works.

37. Fair Dealing or Permitted Acts • SEC 52(1)(o) : Making a maximum of 3 copies for the use of a public library. • Sec 52(1)(c): Reproduction for judicial proceedings or for the purpose of a report of a judicial proceeding. ‘Judicial proceedings’ are defined as including proceedings before any court, tribunal, or person having authority to decide any matter affecting a person’s legal rights or liabilities. • SEC 52 (1)(m) : Reproduction in newspaper and magazine of the article of the current economic, political, social or religious topic in certain situation.

38. Fair Dealing or Permitted Acts • SEC 52(1)(p): Reproduction of unpublished work kept in a museum or library for the purpose of research or study. • Sec 52(1)(d) : Reproduction in any work prepared for the exclusive use of members of any legislature or publication of a translation of acts of legislature or rules

39. Fair Dealing or Permitted Acts • Sec 52(1)(h) : Reproduction by a teacher or a pupil in the course of instruction, or as part of a question paper or in answers to such questions. e.g. It seems that the teacher may copy onto a blackboard a substantial part of a literary work, and pupil may copy it down. The teacher may however not photocopy the same material for the use by students in absence of a licensing agreement.

40. Fair Dealing or Permitted Acts • SEC 52(1)(f): Reading and recitation in public of extracts (literary or dramatic). • SEC 52 (1)(g) : Publication in collection for the use of educational institution in certain circumstances. • Sec 52(1)(I) : Performance in course of activities of educational institutions in certain circumstances. WORK OF ARCHITECTURE: • SEC 52(1)(s) :The making or publishing of a painting ,drawing, engraving or photograph of a work of architecture does not constitute infringement.

41. Fair Dealing or Permitted Acts WORK OF ARTISTIC CRAFTSMANSHIP: • SEC 52(1)(t): The making or publishing of a painting, drawing, engraving, or photograph of a sculpture, or other artistic work falling under the category of a work of artistic craftsmanship if the work is permanently situate in a public place or any premises to which the public has access will not constitute infringement.

42. Fair Dealing or Permitted Acts AUTHOR’S RIGHT TO USE MOULD, CAST etc. OF WORK: • SEC 52 (1)(v): The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work • Provided that he does not thereby repeat or imitate the main design of the work

43. Fair Dealing or Permitted Acts • SEC 52(2) The exceptions to infringement listed under s. 52(1) in relation to literary, or dramatic, musical artistic work will apply also in relation to any translation or adaptation of such work

44. Whether registration is essential? Particulars needed for registration: 1. Name of author 2. Date of publication 3. Whether assignments are obtained 4. If it is an artistic work, then no-objection from Trade Marks Registry

45. Whether registration is essential? Advantages of registration: 1. Documentation comes in place in terms of assignments/no-objections from authors 2. Evidence of date when the work was created 3. Prima facie evidence of particulars 4. Easier to take action especially criminal action where police are convinced with copyright certificate. (re:software, music)

46. Remedies • Civil remedy A suit for infringement of copyright can lie in the District Court or in a High Court of Original Jurisdiction.

47. Remedies contd., • Civil remedy Reliefs to be claimed: 1. Injunction coupled with Anton Piller orders, John Doe orders & Mareva injunction 2. Rendition of accounts, damages 3. Delivery Up

48. Remedies contd • Criminal: Copyright infringement is a cognisable offence. A criminal complaint can be filed either before the police or a Magistrate and search & seizure orders can be obtained.

49. PROS Proper judicial determination of rights Likelihood of earning damages Less subject to challenge Commissioner’s seizure orders are more respected CONS Delays - Trial, Appeal, Supreme Court Damages not usually awarded No severe punishment for violation of rights Pros & Cons of Civil remedies

50. PROS Quick remedy Greater possibility of curbing violation quickly because of fear of being arrested in a criminal case CONS Chances of seizure of goods may be less as there can be a leakage Difficulty in coordinating with police authorities Pros & Cons-Criminal remedies