Author Name:   lubnayusuf

This article simplifies the filing and registration process of Copyrights in India. It also highlights a sample case study of copyrights infringement. It gives a brief study of Section 2 of the Copyright Act 1957 and suggests a solution to the technical flaws in the law....

Basics of Copyright
Copyright, is a bundle of rights, which grants protection to the unique expression of ideas. Ideas per se cannot be protected; it is the expression of ideas in a material medium that is the subject matter of copyright protection. Copyright is a negative right and the owner of a copyright gets the right to prevent others from copying his work without his consent towards a commercial end. However, at the same time it gives to the author an exclusive right for the commercial exploitation of his work.

The domain of copyright includes original literary (which includes computer programmes). Copyright assumes supreme importance for computer programmers and designers. An author, or a designer looks forward to the commercial benefits accruing from his work, apart from the intellectual satisfaction derived from creating the work. Many a times, unscrupulous traders copy software programmes and sell it at a price that is just a fraction of the original work. This in turn, eats into the commercial benefits that the author of an original work

rightly expects and deserves. Copyright law comes in here and secures the interests of the author, punishes the infringer and thus provides incentive to the creation of original works. A copyright can be transferred or can be assigned or licensed for a consideration. Copyright, unlike the other Intellectual Property rights does not require any formal procedures as such and affords protection during the lifetime of the author and sixty-years thereafter.

Copyright Filing Requirements in India
Applicant’s particulars
# Name
# Address
# Citizenship
# For corporate entities
# Country of incorporation
# Nature of entity (e.g. private limited company, public listed company)

Clear specimen of the Work (5 Copies of the Work)
# Electronic Form or
# Physical Form

Copyright Particulars
# Form;
# Statement of Particulars, in triplicate;
# Statement of further particulars, in triplicate;
# A No Objection Certificate;
# Copyright Notice;
# Under Certificate of Posting;
# Copy of the work in triplicate;
# Power of Attorney;

Power of Attorney
# Notarized Power of Attorney (must be filed at the time of filing the application)

Steps Involved In Making A Registration Of Copyright
1) Application in Triplicate With prescribed fee

2) Application to serve notice of his application to every person who has any interest in the subject-matter

3) If the Registrar receives no objection for registration within 30 days of receipt of application by him, he shall, is satisfied about the correctness of particulars, enter such particulars in objection, he may, after holding such inquiry as he deems fit, enter such particulars of the work in the Register of Copy rights which he considered proper

4) Registrar then sends copies of the entries made in the Register to the parties concerned

Appeal
Any person aggrieved by the decision or order of Registrar of Copyright, may, Within three months from the date of the order or decision, appeal to the Copyright Board.

THE CASE STUDY- illustration of an ongoing case

Civil Suit No.256 of 1997
High Court of Calcutta
Ordinary Organisation Civil Jurisdiction

Gramophone Company of India Ltd
v/s
Super Cassettes Industries Ltd.

NAME:                                                    Gramophone Company of India LTD 
Address:                                                  2,Ripon Street Calcutta 16
DATED:                                                  26TH June 1997
Principle involved:                                    Infringement of Copy Right

Concise Statement
The plaintiff sues the defendant for claims, declaration that the defendant is not entitled to manufacture or sell any records or cassettes or any other sound, reproduction system containing any literary or dramatic music works contained in the plaintiff’s series of ten cassettes entitled ‘Geet Ramayan’ or reproduce any part of such work or colorable imitations thereof in any manner whatsoever;

Permanent injunction restraining the defendant whether by itself or by its servants or agents or assigns or otherwise howsoever from in fringing the petitioners copyright in the literary or dramatic or musical work contained in the plaintiffs series of ten cassettes entitled ‘Geet Ramayan’ or any part thereof in any manner whatsoever;

Permanent injunction restraining the defendant whether by itself or by its servants or by agents or assigns or otherwise from giving any effect or further effect to the purported notices dated between 26th September 1996 and 8th October 1996.

Mandatory injunctions commanding the defendant to deliver up all masters tapes and spools, discs and copies of cassettes and inlay cards, labels, boxes and cartons relating thereto in respect of the infringing series of ten cassettes purported to be manufactured and/or released by the defendant to the plaintiff;

Decree for delivery up of the purported notices dated between 26th September 1996 to 8th October 1996 so that each of them maybe cancelled upon being adjudged null and void;

Decree for delivery up and destruction upon oath of all master tapes, spools, discs which would be a breach of prayer.

Above and all copies of inlay cards, labels, boxes and cartons relating thereto and verifications upon oath that the defendant does not have any copy of the infringing cassettes or work in respect of the plaintiffs series of ten cassettes entitled ‘Geet Ramayan’ or any part thereof in possession and control;

Permanent injunction restraining the defendant whereby itself or its servants or agents or otherwise howsoever from manufacturing or selling or marketing any cassettes or any other sound reproduction system under the name ‘Geet Ramayan’ or any colorable invitation thereof in any manner whatsoever;

Receiver; interlocutory injunction; cost; further and/or other reliefs.

Facts of the case:
1) The plaintiff has been and is still engaged inter alia in manufacture and sale of records, cassettes, discs and like. Plaintiff conceived series of records in1967 of Epic Ramayana.

2) Music was given by G.D.Madgoolkar who assigned the copyright in favour of the plaintiff and the payment was made of Rs. 100.

3) The plaintiff assigned Sudhir Phadke to compose lyrics for the work of epic Ramayana for a sufficient consideration.

4) The defendant sought permission from the plaintiff through letters to make sound recording containing literary ,dramatic and musical work contained in volume I to X of the series and enclosed the cheque of rs.9500 with each letters.

5) The plaintiff refused to grant permission to the defendant to make or manufacture or reproduce or market /sell, distribute any sound recording containing literary or musical works contained in volume I to X by letters.

6) Notwithstanding such refusal to grant permission by plaintiff to defendant to make sound recording of the literary and musical work contained in the ‘Geet Ramayan’,the defendant purported to manufacture ,market, sell a series of music cassettes entitled ‘Geet Ramayana’.

The plaintiff discovered such infringing cassettes in market in May 1997 and also discovered that defendant had copied the inlay card of the Plaintiff’s cassettes

7) The defendant has purported to give credit to the musician and lyricist in a bid to induce the prospective customers of the plaintiff to think that the defendant’s product is that of plaintiff’s manufacture.
8)The defendant is denying and/or is interested to deny the plaintiff’s legal character and/or right to property and enjoyment to property.
9) In the premises the plaintiff is entitled to declaration and injunction as prayed for. Injunction is also necessary to prevent multiplicity of judicial proceedings.

Plaintiff’s Claims:
1) Declaration that the defendant is not entitled to manufacture or sell the records or cassettes.
2) Permanent injunction restraining the defendant.
3) Mandatory Injunction
4) Decree for delivery up of purported notices.
5) Decree for delivery and destruction upon oath of all master tapes.
6) Receiver
7) Interlocutory injunction
8) Costs and/or other reliefs

Thus this case highlights the principle of infringement of copyrights.

Sec 2 of The Copyright Act 1957
Copyright shall not subsist in any work specified in
Subsection (1), other than a work to which the provisions of section 40 or section 41 apply, unless,- (i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date was at the time of his death, a citizen of India ; (ii) in the case of an unpublished work other than an architectural work of art, the author is at the date of the making of the work a citizen of India or domiciled in India; and (iii) in the case of an architectural work of art, the work is located in India. Explanation.-In the case of a work of joint authorship, the conditions conferring copyright specified in this sub-section shall be satisfied by all the authors of the work.

(3) Copyright shall not subsist- (a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any record made in respect of a literary, dramatic or musical work, if in making the record, copyright in such work has been infringed.

(4) The copyright in a cinematograph film or a record shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or as the case may be, the record is made.

(5) In the case of an architectural work of art, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

Classification of copyright infringements as "cognizable offenses" expands police search and seizure authority. While the formation of appellate boards under the new legislation should speed prosecution, local attorneys indicate that some technical flaws in the laws, which require administrative approval prior to police action, need to be corrected.

What needs to be done?
A massive publicity campaign regarding the ills of copyright violation mentioning its being criminal offence, consequences, etc. could be launched. This is however, a gigantic task. Everybody involved in this, like the Government, local authorities, right holders, associations, copyright societies, law-enforcing authorities, etc have to join hands together. To start with, the campaign could be launched through mass media like newspapers, journals, electronic media such as TV, Cinema halls, etc. The campaign should also highlight how to identify the pirated products as opposed to genuine products

Though in a limited scale, NASSCOM, Indian Music Industry have been involved towards educating people in various forums and through newspapers but their efforts have not been able to bring desired results. In the field of cinematographic and book publishing almost nothing has been done. The associations along with copyright office have to necessarily take very active part in this direction in order to reduce the extent of piracy if not eliminate it.

Binliography:-
Books referred:
# Copinger and Skone James on Copyright, Sweet & Maxwell, London, 1999
# Cornish, W.R., Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, Sweet & Maxwell, London, 1999
# Lai's The Copyright Act, Law Publishers (India) Pvt. Ltd, Allahabad, 2002
# Narayanan P., Copyright and Industrial Designs, Eastern Law House, Kolkata, 2002

References
· The file of the case: Gramophone Company of India Ltd v/s Super Cassettes Industries Ltd.
· Directory of Intellectual Property Offices, maintained by World Intellectual Property Organization (WIPO)

# http://www.copyright.gov/title17/92chap1.html#101
# http://en.wikipedia.org/wiki/Fair_use
# http://en.wikipedia.org/wiki/Copyright

The  author can be reached at: lubna.yusuf@legalserviceindia.com

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