What is Copyright? What are the things covered under Copyright?

Copyright is a form of intellectual property right, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.

What is covered under Copyright?

As with all fields of intellectual property copyright is concerned with protecting the work of the human intellect. The domain of copyright is the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases.

Note that copyright protects works,that is the expression of thoughts, and not ideas. So if you imagine a plot, this, as such, is not protected. For example, a plot consisting of a story about young men and women falling in love despite family and caste obstacles would not be protected. Different writers may build stories based on a similar plot. But when you express it in a synopsis or in, say, a short story, or a play, the expression of the plot in that story will be protected. Hence, for example, Rabindra Nath Tagore’s  Gitanjali would  be  considered  as  a creative expression of that plot. Still, other writers may build new stories based.

The Berne Convention (1886), which is the oldest international Convention governing copyright, states the following in its Article 2:

“The expression ‘literary and artistic works’ shall include every production in  the  literary,  scientific  and  artistic  domain,  whatever  may  be  the  mode  or form of its expression, such as books, pamphlets and other writings; lectures, addresses,  sermons  and  other  works  of  the  same  nature;  dramatic  or dramatico-musical  works;  choreographic  works  and entertainments  in  dumb show; musical compositions with or without words; cinematographic works to which  are  assimilated  works  expressed  by  a  process  analogous  to cinematography;  works  of  drawing,  painting,  architecture,  sculpture, engraving  and  lithography;  photographic  works,  to  which  are  assimilated works  expressed  by  a  process  analogous  to  photography;  works  of  applied art; illustrations, maps, plans, sketches and three-dimensional works relative to  geography,  topography,  architecture  or  science.  Translations, adaptations,  arrangements  of  music  and  other  alterations  of  a  literary  or artistic  work  shall  be  protected  as  original  works  without  prejudice  to  the copyright  in  the  original  work. Collections  of  literary  or  artistic  works such  as  encyclopaedias and anthologies which,  by  reason  of  the  selection and  arrangement  of  their contents, constitute intellectual creations shall be protected as such, without  prejudice  to  the  copyright  in  each  of  the  works forming part of such collections.”

There  is  no  requirement  that  the  literary  and artistic  work  should  be  good  or  have  artistic merits. It should, however, be original. The exact meaning of this requirement varies from country to country, and it is often determined by  case  law.  In  very  general  terms  one  may say  that  in  countries  belonging  to  the common  law  tradition  very  little  is  required, other than that the work must not be a copy of another work and that the author should have displayed  a  minimum  amount  of  skill,  labor and judgement in making it.

In  countries  belonging  to  the  civil  law  tradition,  the  requirement  is  often stronger,  for  example  that  the  work  must  bear  the  stamp  of  the  author’s personality. A creative effort would be required from the author that may go beyond mere skill, labor or judgement.

Are  the  works  that  can  be  protected  under  the  Berne  Convention restricted to the list set out in Article 2?

It should be borne in mind that works that are susceptible of being protected under  the  Berne  Convention  are  not  restricted  to  the  examples  quoted above. Such a list is not exhaustive.  You will have noticed that the Berne Convention  specifies  that  “the  expression  ‘literary  and  artistic  works’  shall include  every  production  in  the  literary,  scientific  and  artistic  domain, whatever  may  be  the  mode  or  form  of  its  expression,  such  as….”  The expression “such as” opens the door to creations other than the ones set out  in  the  list.  For  example,  court  decisions,  in  different  countries,  have protected material such as:

– private letters,

– a divorce guide,

– a haircut,

– a floral decoration of a bridge, 

– examination papers.

What is meant by derivative works?

Another  important  feature  of  Article  2  of  the  Berne  Convention  is  that  it protects what is commonly called  “derivative works”. These are works that are derived from other, existing sources.  Examples of derivative works include:

– translations of works into a different language;

– adaptations of works, such as making a film scenario based on a novel;

–  arrangements  of  music,  such  as  an  orchestra  version  of  a  musical composition initially written for piano;

– other alterations of works, for example an abridgement of a novel;

–  compilations  of  literary  and  artistic  works,  such  as  encyclopedias  and anthologies. In such a case, the originality resides in the choice and arrangement of the materials.

One should bear in mind that, before embarking in a derivative work, you must respect the rights of the author of the initial work. For example, an author who  wishes  to  translate  a  novel  into  a  foreign  language  should  seek  proper authorization  from  the  author  of  the  novel  that  will  be  translated.  Making  the translation without proper authorization would expose the translator to the risk of being sued for copyright violation.

What sort of things can be protected by copyright laws?

Copyright  protects  literary  and  artistic  works,  as  the  title  of the Berne Convention states.  The two concepts  need  to  be  taken  in  a  very  broad sense.  The term literary, for example, does not mean just novels, poems or short stories: it could cover the maintenance manual of a car, or even things that are written but not supposed to be understood by the average human being, such as computer programs.  The key to this expression in fact is the word “works”.  What we mean by that is that expression, human expression, is the determining factor.  So, if I have the idea of painting “sunset over the sea”, anyone else can use the same idea, which is not protected.  But when I actually produce my painting of “sunset over the sea” the painting itself is expression, and that is protected.

What are the Rights Protected by Copyright?

The most important feature of property is that the owner may use it exclusively, i.e., as she/he wishes,  and  that  nobody  else  can  lawfully use it without the owner’s authorization. The phrase “as she/he wishes” does not, of course, mean that they can use it regardless of the legally recognized rights and interests of other members of society. For example, the owner of a car may use it “as she wishes,” but this does not mean that she may drive her car recklessly and create danger to others, nor that she may disregard traffic regulations. Copyright is a branch of intellectual  property. The owner of copyright in a protected work  may use the work as he wishes, and may prevent others from using it without his authorization. Thus, the rights granted under national laws to the owner of copyright in a protected work are normally “exclusive rights”: to use the work or to authorize  others to use the work, subject to the legally recognized rights and interests of others.

There are two types of rights under copyright: economic rights, which allow the owner of rights to derive financial reward from the use of his works by others, and moral rights, which allow the author to take certain actions to preserve the personal link between himself and the work.

Indian perspective on copyright protection:

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms: 
(i) Economic rights of the author, and 
(ii) Moral Rights of the author.

(i) Economic Rights:

The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work. In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights available to an author include the right 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, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work. In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public. These rights are similarly available to the author of sound recording. In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.

(ii) Moral Rights:

Section 57 of the Act defines the two basic “moral rights” of an author. These are: 
(a) Right of paternity, and 
(b) Right of integrity.

The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.

Posted in IPR