Copyright and Acts which not deemed as Copyright Infringement
Copyright is one of the branches of intellectual property accepted universally after the TRIPS [Trade-Related Aspects of Intellectual Property Rights ] agreement 1994. Its rules and regulations control and formulated by world intellectual property organisation.
MEANING OF COPYRIGHT.. [ HEREINAFTER MENTIONED AS C.R ]
C.R based on the concept of the original creation of the work in the field of artistic, literary, cinematography, software programming, photographic works. It also includes the alteration work of the copyright registered work, validate under the purview of ‘flavour of the creativity doctrine’. These are the subject matters of CR (a) original literary, dramatic, musical and artistic works; (b) cinematograph films (c) sound recording [d] software programme [e] photographic work [f] designs, graphs and maps. Example music created by the composer, he is the creator also having the right to get a copyright for his work. Same it is applicable to director of movie and authors of a novel etc.
CR holders have certain rights to do with their copyright work like reproduction, assignment, licensing, perform, transfer, store, communicate and commercial activity.
INFRINGEMENT OF COPYRIGHT …
According to section 51 of CR act, these acts amount to infringement of CR
1. Unauthorised and illegal reproduction of the CR work deemed to be infringement. Here ‘unauthorised’ means to reproduce work without the prior assignment of the work to the offender.
2. Does any act which against the agreement/ assignment conditions.
3. Performance, telecast, publications without consent of the CR holder.
4. Distribution for commercial purposes and personal benefits.
These actions will not amount to infringement if the creator of CR work assigns his work to any person with the compliance of sections 18 and 19 of the act. Here are some conditions prescribed under these provisions…
1. Assignment of work can be done for partial work or for a whole.
2. Present work or the work to be done [ future] can also be assign.
3. Express [ written ] assignment/agreement is mandatory
4. Agreement shall contain the clause like the identity of work [ type], rights transferred [ specific], duration of the assignment, territorial extent and payable amount of royalty.
5. In the case where the duration of assignment of the work not specified, it shall be deemed for a five-year duration.
6. If any of the rights transferred by assignment to the assignee not exercised by him within a year, it shall be deemed to expire, lapse or waiver.
Above mention process of assignment of the work protect a person from prosecution of CR infringement. But there are also certain ways to use the copyright work for the benefits work with balancing creator rights. These acts however inspired by the copyright work but not amount to its infringement….
• There is a general principle that copyright not available for the idea and for the work related to natural resources, historical events, facts certain or obvious to everyone. this principle accepted universally. guidelines by the honourable supreme court in RG ANAND V/S DELUX FILMS AIR 1978 SC 1613. A person can apply for copyright for its work inspired by a certain idea but can't copyright the ‘IDEA’, because if we copyright ideas it will lead to violation of our fundamental right of ‘speech and expression’. The term Expression includes data. Ideas and information. This principle got light in the case of STAR INDIA [ PVT. LTD.] V/S LEO BURNETT PVT.LTD.2 003 (2) Bom. CR 655. The facts of this case were..
1. ‘kyunki saas bhi kabhi bahu thi’ serial made and telecast by balaji films. Later on tide detergent advertisement was published with the slogan ‘BAHU BHI KABHI SAAS BANEGI’ inferencing the same as the characters of the serial.
2. Bombay high court held that there is no copyright in the dialogue because it is the creation of an idea and must not be a monopoly over it by the creator. Idea is not a matter of copyright violation. Thus no one can claim over it.
• Doctrine of ‘flavour of creativity’
1. This is an American doctrine, according to this doctrine a person can create his own work inspired by the existing copyright work with certain due diligence. This doctrine imported from American precedent in the EBC law publisher case. If the subsequent work is different from the original one but certain efforts, value, mind, changes and due diligence must be invested in it. It cannot be just copied and paste from prior work. Availability of Prior work does not matter. It could be from the public domain or the private domain as well.
2. IN EBC AND ORS, V/S DB MODAK AND ANR. AIR 2008 SC. SCC Legal sued EBC LEGAL PUBLISHER for copying his short notes, footnote and citations from scc online.
3. Court held that it would not amount to infringement of the copyright. The important fact is that the work of both the parties were also not his own creation. The judgement pronounced in court is the creation of the judge own mind. However, it is available in public domain. A person can elaborate and mention thereto by applying his mind, time, efforts, due diligence and hard work. If the subsequent work different from the existing one not just an example of copy-paste. It would protect the creator of subsequent work from copyright infringement prosecution. creativity must to be followed.
• DOCTRINE OF FAIR USE OR FAIR DEALING
1. According to this doctrine, a person can enjoy the work of prior copyright work for its mental and societal benefits. But it should not be for commercial or trade purposes.
3. Doctrine elaborated in the case of CHANCELLOR MASTERS AND SCHOLARS OF UNIVERSITY OF OXFORD V/S NARENDRA PUBLISHING HOUSE AND ORS MANU/DE/1377/2008
4. Petitioner, in this case, was a well-known publisher ‘oxford’ contended that the defendant infringing their copyright by directly copying their work style , content and formats. Defendant contended that it was an act of fair use for the purpose of public use students also the content of the plaintiff work just questions and answers did not include the process of getting answers but defendant works included the process plus arranged in a sequenced manner. Also, the defendant work is known in the public as a help book. Bench of Delhi court, justice s.ravindra bhat dismissed the claim of plaint as they failed to prove uniqueness and distinctiveness of defendant creativity for the purpose of fair dealing.
ISSUE OF DIGITAL, SOFTWARE AND META TAGS COPYRIGHT
1. We can publish registered Copyright WORK content in digital platforms like blogs of word press or responsive sites. if it is informational and for the fair use. It should be inclusive of some creativity and distinctiveness not just a piece of copy-paste. If it is so, proper credit must be mentioned to the original creator and should be not for commercial purposes or personal gain. Personal gain include monetary and good will.
2. Doctrine of ‘flavour of creativity’ and ‘fair use’ also applicable to the software programs. Coding of the software program includes algorithms to input and output data. Work should not be directly same. Algorithms which known in public domain cannot invoke copyright infringement.
3. In meta tags, meta tags are the tags set in the html program to classify its content, its type, author for the purpose of search engine optimisation. Just to enhance the reach and to attract traffic. However, using specific keywords not amount to infringement as per English precedent if it is available and known in the public domain. till date no indian precedent regarding this.
Conclusion…
The perfect balance of creators rights and the rule against perpetuity to flow the ownership and usage of property in society. After the fixed tenure of 60 years after the death of creator, work available in the public domain. With the advancement of digital platforms like audio books, ebook, blogs, web shows in OTT platforms, podcasts widened the scope of copyright work also the cases of infringement.
#lawinroutine #copyright #infringement
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