loga registration in india095 40 15 0003  |  095 40 16 0003

Trademark Services in Indiainfo@legalarclawfirm.in  |  info@legalarclawfirm.com

trademark registration in india

Copyright Frequently Asked Questions


1. What is Copyright?
Copyright is a form of intellectual property protection granted under the Indian Copyright Act 1957, to the creators of original works of authorship such as literary, dramatic, musical, artistic works and producers of cinematograph films and sound recordings and certain other intellectual works. In fact, it is a bundle of rights including, inter alia, rights of reproduction, communication to the public, adaptation and translation of the work. There could be slight variations in the composition of the rights depending on the work. This protection is available to both published and unpublished works.

 

2. What is the object of Copyright?
The object of copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain.

 

3. What is covered under Copyright?
A copyright gives certain exclusive rights to persons who create original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. Copyrightable works include the following categories:
¦ Literary works
¦ 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.

 

These categories should be viewed broadly. For example, computer programs and most “compilations” may be registered as “literary works”; maps and architectural plans may be registered as “pictorial, graphic, and sculptural works.”

 

To be copyrightable, the work must be more than an idea; it must be fixed in a “tangible form of expression.” This means that the work must be written or recorded. This is because a copyright does not protect an idea or plan; instead, it protects the expression of that idea or plan.

 

In addition, the work must be original. It must not be copied from someone else, and it must contain some minimal level of creativity. Facts, well-known phrases or a list of names, in and of itself, are not copyrightable. However, if these items are organized or expressed in an original manner, then a copyright would protect that organization or expression.

 

4. What is not protected under Copyright?
There are several categories of material that are generally not protected under Indian Copyright Act. These include among others:
Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded).
Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents.
Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration.
Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources).

 

5. What are the rights available through copyright protection?
Copyright owners have the exclusive rights to do or authorise the doing of any of the following:

 

In respect of literary, dramatic or musical work
1 To reproduce the work in any material form including the storing of it in any medium by electronic means;
2 To issue copies of the work to the public not being copies already in circulation;
3 To perform the work in public, or communicate it to the public;
4 To make any cinematograph film or sound recording in respect of the work;
5 To make any translation of the work;
6 To make any adaptation of the work;
7 To do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in the sub-clauses 1 to 7.

 

In case of computer programme the rights also includes:-
1 To do any of the acts afforded to the other works;
2 To sell or give on hire, or offer for sale or hire any copy of the computer programme, regardless of whether such copy has been sold or given on hire on earlier occasions;

 

In respect of an artistic work
1 To reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
2 To communicate the work to the public;
3 To issue copies of the work to the public not being copies already in circulation;
4 To include the work in any cinematograph film;
5 To make any adaptation of the work;
6 To do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses 1 to 4.

 

In respect of cinematograph film

1 To make a copy of the film, including a photograph of any image forming part thereof;
2 To sell or give on hire, or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;
3 To communicate the film to the public;

 

In respect of sound recording 
(i) To make any other sound recording embodying it;
(ii) To sell or give on hire, or offer for sale or hire, any copy of the sound recording regardless of whether such copy has been sold or given on hire on earlier occasions;
(iii) To communicate the sound recording to the public;

 

6. Who can obtain a copyright?
Under the copyright law, the creator of the original expression in a work is its author. Only the author or those deriving their rights through the author can rightfully claim copyright. The author is also the owner of copyright, unless there is a written agreement by which the author assigns the copyright to another person or entity, such as a publisher. In cases of works made for hire, the employer and not the employee is considered to be the author. Where the work includes material from different owners, or for example is a translation of an original work, several owners may each have copyright in the final work.
It should be noted that mere ownership of a book, manuscript, painting, or any other copy or record does not give the possessor the copyright. The law provides that a mere transfer of ownership does not automatically transfer rights in the copyright. Minors may claim copyright, but state laws may regulate the business dealings involving copyrights owned by minors.

 

7. What is the term of Copyright Protection?
The term of copyright varies according to the nature of the work and whether the author is a natural person or a legal person, e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or pseudonymous.
In the case of literary or musical works or artistic works, other than photographs, have a life span, which extends for the life of the author and 60 years from the end of the year in which the author dies. However, if the work has not been published, performed, or offered for sale or broadcast during the life of the author, the copyright protection shall continue for a period of 60 years from the end of the year in which any of these acts are done relating to the work.
Cinematograph films, photographs and computer programs are protected for 60 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or published, or, failing such an event, for 60 years from the end of the year in which the work is made. Sound recordings are protected for 60 years from the end of the year in which the recording is first published.
For broadcasting, the term is 25 years from the beginning of the calendar year following the year, in which the broadcast was made.
In the case of anonymous or pseudonymous works, the copyright is for 60 years from the end of the year in which the work is made available to the public with the consent of the owner of the copyright or from the end of the year in which it is reasonable to presume that the author died, which ever term is shorter.

 

8. How is a Copyright notice displayed?
Anyone who claims copyrights in a work can use copyright notice to alert the public of the claim. A Copyright notice consists of the following:
¦ The symbol © (letter c in a circle) or the word Copyright.
¦ The year of first publication, and
¦ The copyright owners name.
For example: © 2010 www.legalarclawfirm.com

 

9. Can a license under Copyright be given?
Yes. Copyright licenses can be given which authorize another to copy the work in question, usually in return for a royalty fee.

 

10. Is assignment of copyright possible?
Yes. The owner of the copyright in any existing work or the prospective owner of the copyright in any future work in writing signed by him or by his duly authorized agent, may assign to any person the copyright either wholly or partially either generally or subject to limitations.

 

11. What is the mode of Assignment of Copyright? 
Assignment is not valid till it is in writing, signed by the assigner or by his authorised agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties. If the period of assignment is not stated, it shall be deemed to be 5 years from the date of assignment if the territorial extent is not specified it shall extend within India.

 

12. What is Copyright Infringement?
Copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.

Section 51 of the Copyright Act, 1957 says that Copyright in a work shall be deemed to be infringed-
■ when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act- (i) does anything, the exclusive right to do which is by this Act 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
■ when any person- (i) makes for sale or hire, or sells or lets for 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”.

 

13. What are the remedies available for Copyright Infringement in India?
The Copyright Act provides not only Civil but also Criminal remedies, in case of infringement of Copyright, against the infringer.
In case of infringement of copyright, owner of the copyright shall be entitled to all such remedies by way of injunction, damages or account of profits and otherwise as are or may be conferred by law for the infringement of a right. The Civil Court is empowered to give following reliefs:-

■ Temporary and permanent injunctions,
■ Impounding and destruction of all infringing copies, including masters,
■ Actual monetary damages plus the infringers’ profits,
■ Statutory damages,
■ Court costs and reasonable attorneys’ fees.
Copyright infringement is a cognizable offence where a Police Officer not below the Rank of a Sub-Inspector can arrest the offender without the warrant and conduct the search even without prior authorization of a Court.

Under Section 64 of the Copyright Act, 1957, any police officer, not below the rank of a sub-inspector, may if he is satisfied that an offence in respect of Copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work, and all plates used for the purpose of making infringing copies of the work, wherever found and produce them before a magistrate as soon as practicable.

Copyright infringement if proved in a Court of Law carries a minimum mandatory sentence of imprisonment of six months and minimum fine of Rs. 50,000 which can extend upto Rs. 2 lakh. The Act further provides that there will be an enhanced penalty in case of second and subsequent convictions.

 

14. What is the jurisdiction for filing a suit for infringement of Copyright?
In cases of copyright infringement a suit can be initiated before the district court district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain.

 

15. What are the authorities created under the Copyright Act?
Section 9 of the Copyright Act requires for establishment of an office to be called the Copyright Office for the purpose of the Act. The Copyright Office is to be under the immediate control of a Registrar of Copyrights to be appointed by the Central Government, who would act under the superintendence and directions of the Central Government.

Section 11 of the Copyright Act requires the Central Government to constitute a Copyright Board headed by a Chairman with not less than two and not more than 14 other members. Registrar of Copyrights is to be Secretary of the Copyright Board.

Section 12 of the Copyright Act also lays down the powers of the Copyright Board and deems it to be a civil court for the purposes of Sections 345 and 346 of the Code of Criminal Procedure, 1973 and also that all the proceedings of the Board would be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code.

Copyright Office is an Administrative Authority and Copyright Board is a quasi-judicial body headed by Chairman, who is, or has been, a Judge of a High Court or is qualified for appointment as a Judge of a High Court. The Registrar of Copyrights shall be the Secretary of the Copyright Board and shall perform such functions as may be prescribed in the Copyright Act.

 

16. Has the Registrar of Copyrights any judicial powers?
Yes. The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of Civil Procedure in respect of the following matters, namely,
■ Summoning and enforcing the attendance of any person and examining him on oath;
■ Requiring the discovery and production of any document;
■ Receiving evidence on affidavit;
■ Issuing commissions for the examination of witnesses or documents;
■ Requisitioning any public record or copy thereof from any court or office;
■ Any other matters which may be prescribed.

 

17. What are the remedies in the case of groundless threat to legal proceedings?
Where any person claiming to be the owner of copyright in any work, by circulars, advertisements or otherwise, threatens any other person with any legal proceedings or liability in respect of an alleged infringement of copyright, any person aggrieved thereby may institute a declaratory suit that the alleged infringement to which the threats related was not in fact an infringement of any legal rights of the person making such threats and may in any such suit –
■ obtain an injunction against the continuance of such threats; and
■ recover such damages, if any, as he has sustained by reason of such threats.

Quick Contact
s
e
e
e
e
e
Attach your Logo
e
CAPTCHA Image

 

 

Trademark & Copyright Services
Trademark Service Area
Copyright Service Area