| What is Copyright? | | | | Performers (singers, actors, dancers, musicians etc.) |
| Copyright is concerned with protecting literary, artistic | | | | are eligible for protection because of their creative |
| or scientific work of the human intellect. These include | | | | interpretations giving life to the work. The protection for |
| books, wallpapers, pamphlets, catalogues, maps, guides | | | | such performance is 20 years from the end of year in |
| and other writings, music, works of the fine arts such | | | | which the performance took place according to Rome |
| as paintings and sculptures, lectures, addresses, and | | | | convention. But the term is 50 years according to |
| works of like nature, Dramatic, dramatic musical works, | | | | TRIPS agreement. Unauthorized fixation, broadcasting |
| Chronographic works, dumb show, Musical composition, | | | | etc. can be prevented by virtue of the protection |
| Architecture, sculpture, drawings, engravings, | | | | granted. |
| lithographic, phonographic works, Translations, | | | | Producers of phonograms need protection because |
| adaptations and technology based works such as | | | | they are the most immediate victims of piracy. They |
| computer programs and electronic databases. | | | | have the right to authorize and prevent direct or |
| Copyright is based on the concepts of originality and | | | | indirect reproduction, importation and distribution of their |
| reproduction of the work in any material form. | | | | phonograms. The protection is for 20 years from the |
| Therefore the main criterion for the protection of a | | | | end of year in which the fixation is made according to |
| work under copyright laws is that it should beoriginal | | | | Rome convention and is for 50 years according to |
| (Not copied). Accordingly copyright laws confers the | | | | TRIPS provisions. |
| exclusive right to the owner of the “original” | | | | Protection is also available to broadcasters for the |
| literary, artistic or scientific work to use or authorize | | | | investments and technical skill they put together so |
| others to use it for its reproduction, public performance, | | | | that the unauthorized re-broadcasting and recording |
| translation and adaptation. It is to be noted that | | | | could be prevented. The protection is for 20 years |
| copyright protects a work that is the expression of | | | | from the end of the year in which the broadcast took |
| thought based on some idea, and not for the idea as | | | | place according to both Rome convention and TRIPS |
| such. For example if I have the idea of painting | | | | agreement. The WIPO Performance and Phonograms |
| “sunset over the sea”, anyone else can use the | | | | Treaty (WPPT) that entered into force on May 20, |
| same idea, which is not protected. But when I actually | | | | 2002 offer protection to economic and moral rights as |
| produce my painting of “sunset over the sea” | | | | regards exploitation in digital form including that over |
| the painting itself is expression, and that is protected. | | | | Internet. |
| Copyright provides a bundle of rights. The most typical | | | | What are the Rights bestowed by Copyright? |
| are the following: the right to copy or otherwise | | | | The copyright holder has a set of different rights, |
| reproduce any kind of work; the right to distribute | | | | which are governed partly by the Berne Convention, |
| copies to the public; the right to rent copies of at least | | | | where there are minimum rights, and partly by national |
| certain categories of works (such as computer | | | | law, which often takes the rights even further. There |
| programs and audiovisual works); the right to make | | | | are basically two types of rights 1) economic rights, |
| sound recordings of the performances of literary and | | | | which allow the owner of rights to derive financial |
| musical works; the right to perform in public, particularly | | | | reward from the use of his works by others, and |
| musical, dramatic or audiovisual works; the right to | | | | 2) moral rights, which allow the author to take certain |
| communicate to the public by cable or otherwise the | | | | actions to preserve the personal link between himself |
| performances of such works and, particularly, to | | | | and the work. |
| broadcast, by radio, television or other wireless means, | | | | Moral rights: |
| any kind of work; the right to translate literary works; | | | | |
| the right to rent, particularly, audiovisual works, works | | | | These rights comprise the right to decide on disclosure |
| embodied in phonograms and computer programs; the | | | | of the work; the right to claim authorship thereof (to |
| right to adapt any kind of work and particularly the right | | | | have the name of the author and the title of the work |
| to make audiovisual works thereof. | | | | mentioned in connection with the use of the work); the |
| Copyright is a protection that covers published and | | | | right to prevent the mention of the author’s name if |
| unpublished literary, scientific and artistic works, | | | | the author of the work wishes to remain anonymous; |
| musical work, cinematographic films, software etc. | | | | the right to choose a pseudonym in connection with |
| Whatever be the form of expression, such works | | | | the use of the work; the right to object to unauthorized |
| should be fixed in a tangible or material form. | | | | modification of the work, to mutilation thereof and to |
| This means that if you can see it, hear it and/or touch | | | | any derogatory action in relation thereto; the right of |
| it - it may be protected. | | | | withdrawal of the work from public use against |
| Originality: | | | | payment of compensation for damages caused to |
| | | | any person who has previously received proper |
| Originality in relation to a work means that it is the | | | | authorization to use the work. Most of the copyright |
| author’s own creation and is not copied totally or | | | | laws recognize moral rights as an inalienable part of |
| essentially from another work. Originality is required by | | | | the copyright, distinct from the so-called economic |
| copyright law for the composition of the contents as | | | | rights. Some laws also provide for moral rights of |
| well as the form of their expression , but not in relation | | | | performers to protect them against distortion of their |
| to mere ideas, information or methods embodied in the | | | | performances and grant them the right to claim the |
| work. Originality is not to be confused with novelty: the | | | | mention of their name in connection with their |
| pre-existence of a similar work unknown to the author | | | | performances. |
| does not affect the originality of an independent | | | | Economic Rights |
| creation. In the case of a derivative work, originality | | | | These are the rights providing financial benefits to the |
| resides in the individual method of adaptation of the | | | | author. They imply as a rule that within the limitations |
| pre-existing work as referred to, among others, in | | | | set by the copyright law, the owner of the copyright |
| Article 9 of the Mexican Law. | | | | may make all public use of the work conditional on |
| The requirement of originality as a condition of | | | | payment of remuneration. Economic rights comprise, in |
| copyright protection is expressed in many national | | | | particular, the faculty to do or to authorize the doing of |
| copyright laws by qualifying protectible works as | | | | any of the following: to publish or otherwise reproduce |
| “original”. This sense of the attribute | | | | the work for public distribution; to communicate it to the |
| “original” should not be confused with the | | | | public by performance, by broadcasting or by wire; to |
| meaning of the term when used to oppose original | | | | make translations or any kind of adaptation of the |
| works as pre-existing works to derivative works. | | | | work and to use these in public. |
| LITERARY, ARTISTIC, MUSICAL AND SCIETIFIC | | | | The right of reproduction is the basic right of the right |
| WORKS | | | | holder to prevent others from making copies of his/her |
| Strictly speaking, literary work is writing of great value | | | | works in printed form, CD ROM etc. The right holder |
| from the standpoint of the beauty and emotional | | | | can also authorize distribution of copies of the work by |
| effect of its form and content. From the point of view | | | | assigning the right. But the above right doesn’t |
| of copyright, however, a general reference to literary | | | | prevent individuals to make single copies of the work |
| works is commonly understood as meaning all sorts of | | | | for private, personal and noncommercial purposes. |
| original written works, be they of a belletristic, scientific, | | | | The rights of Public performance, Broadcasting and |
| technical or merely practical character, irrespective of | | | | Communication to Public are another bundle of rights |
| their value or purpose. | | | | owned by the copyright holder. The rights include |
| But an artistic work (or work of art) is a creation | | | | prevention of others from the above acts and the right |
| intended to appeal to the aesthetic sense of the | | | | to authorize it. Public performance means the |
| person perceiving it. The category of artistic works | | | | performance not only in a public place but also where |
| comprises paintings, drawings, sculptures, engravings, | | | | a substantial number of persons outside the normal |
| and in several copyright laws also works of | | | | circle of a family and its closest social acquaintances is |
| architecture and photographic works. Although in some | | | | present i.e. the presentation of a play in a theatre or an |
| countries musical works are considered to be a special | | | | orchestra performance of a symphony in a concert |
| category of protected works, in many copyright laws | | | | hall etc. Broadcasting covers the emission by wireless |
| the notion of artistic works comprises musical works | | | | means within a range and Communication to public is |
| too. Works of applied art are in most legislation likewise | | | | that by means of wires and cables. |
| included in this category. | | | | Another right is the right of translation and adaptation. |
| Musical works are also protected by copyright. Such | | | | Translation is the expression of a work to a different |
| works comprise all kinds of combinations of sounds | | | | language and Adaptation is the modification of a work |
| (composition) with or without text (lyric or libretto), to be | | | | to create another work such as adapting a novel for |
| performed by musical instruments and/or the human | | | | making a cinema. In order to reproduce and publish a |
| voice. If the work is also intended for stage | | | | translation or adaptation authorization must be obtained |
| performance, it is called a dramatico-musical work. | | | | from the owner of the copyright in the original work |
| Music usually forms part of cinematographic works | | | | even if the owner of the copyright in the translation or |
| too. The author of a musical work is generally referred | | | | adaptation grants permission. |
| to as the composer. The most frequent uses of | | | | PECULIARITIES OF COPYRIGHT |
| musical works for which protection is granted under | | | | - Copyright doesn’t prevent individuals to make |
| copyright laws are reproduction (as sheet music or | | | | single copies of the work for private, personal and |
| recording), performance, broadcasting other forms of | | | | noncommercial purposes. |
| communication to the public, arrangement and use as | | | | - In order to reproduce and publish a translation or |
| background music. Copyright laws making protection | | | | adaptation authorization must be obtained from the |
| subject to fixation in material form only protect music | | | | owner of the copyright in the original work even if the |
| written in musical notation or recorded appropriately | | | | owner of the copyright in the translation or adaptation |
| Another area of importance is scientific works. | | | | grants permission. |
| Scientific work deals with problems in such a way as | | | | - Copyright offers protection for a minimum period of |
| to correspond to the requirements of scientific | | | | lifetime of the author plus 50 years in almost all the |
| approach. The coverage of this category of works is | | | | countries |
| not at all restricted to the field of natural sciences or to | | | | - Both civil and criminal remedies are available against |
| literary works of a scientific character. A computer | | | | infringement and piracy of the protected work. |
| program could under certain circumstances also be a | | | | - Copyright is not territorial. |
| scientific work. In copyright laws, a general reference | | | | Ownership of copyright and licensing |
| to scientific works is often understood as meaning all | | | | |
| kinds of works other than artistic or fictional, such as | | | | Owner of copyright is generally understood as being |
| technical writings, reference books, popular scientific | | | | the person to whom the copyright in a work belongs. |
| writings, or practical guides. However, scientific works | | | | The original owner of copyright is as a rule, and except |
| protected by copyright do not comprise scientific | | | | for a few special cases, which vary according to the |
| inventions, discoveries, research work or scientific | | | | different copyright laws, the author, who acquires |
| undertakings. | | | | copyright by virtue of law upon creation of the work. |
| Why to protect a work by copyright? | | | | Owners of copyright may also be the heirs of the |
| Even though the work is protected by the fact of its | | | | author as a result of inheritance. Some copyright laws |
| creation some sort of proof is needed which can be | | | | allow for assignment of copyright in whole or in part |
| obtained by the registration of the work under | | | | and thereby the assignee becomes owner of the |
| copyright law of the nation. In civil-law countries, the | | | | copyright in whole, or of the part assigned |
| work is typically protected from the moment of its | | | | Licensing in the field of copyright is the authorization |
| creation. On the other hand under common law you | | | | (permission) given by the author or other owner of |
| need have to have it fixed in some way, perhaps | | | | copyright (licensor) to the user of the work (licensee) |
| written down or recorded on tape. It implies thatthe | | | | to use it in a manner and according to conditions |
| work has to be fixed before it is protected. The | | | | agreed upon between them in the pertinent contract |
| difference here is really not that important, it is basically | | | | (licensing agreement). Unlike an assignment, a license |
| a question of the kind of proof you would need in a | | | | does not transfer ownership; it only constitutes a right |
| court in the very rare cases of works that are not | | | | or rights to use the work under the copyright in it, |
| fixed in the normal way. | | | | which remains with the licensor, though restricted |
| There are no “international copyrights’ that | | | | according to the scope of the license granted. The |
| enable you protect your work throughout the world. | | | | license is either exclusive or non-exclusive; in the latter |
| However, most countries are members of the Berne | | | | case, the owner of the copyright may lawfully grant |
| Convention and the Universal Copyright Convention | | | | similar licenses to other licensees too. Often the |
| (UCC), which allow you to protect your works | | | | licensee also obtains the right to exploit his license by |
| in countries of which you are not a citizen or national. | | | | allowing other persons to use the work |
| In Berne Convention countries, all foreign owners of | | | | correspondingly (sub-licenses). Copyright conventions |
| rights or authors from other Berne countries qualify for | | | | and national copyright laws may for compulsory |
| protection under the Convention without any | | | | provide licenses and statutory licenses in special cases. |
| formalities, so there’s no need to make any | | | | Royalty will be paid to the author, etc. for each copy |
| registration. Under these treaties, the following works | | | | of a book sold, or for each public performance of a |
| may be protected (i) both unpublished and published | | | | work. |
| works of an author who is a national or resident of a | | | | |
| country that is a member of these treaties; or (ii) | | | | Joint work and joint authorship |
| publishedworks, with permission, of an author who is | | | | |
| not a national or resident of a country that is a | | | | A joint work or work of joint authorship is generally |
| member of these treaties. In this case a work may be | | | | understood as meaning a work created by two or |
| considered simultaneously published in several | | | | more authors in direct collaboration or at least having |
| countries if it has been published in two or more Berne | | | | regard to one another’s contributions, which may |
| Union countries within 30 days of its first publication | | | | not be separated from each other and considered as |
| Berne Convention: | | | | independent creations. Examples of the most common |
| Berne convention established in 1886 is the oldest | | | | types of joint works may be dramatico-musical |
| international convention concerning copyright. The | | | | compositions, musical works with lyrics, manuals |
| Convention, concluded in 1886, was revised at Paris in | | | | written by several authors or computer programs |
| 1896 and at Berlin in 1908, completed at Berne in 1914, | | | | created by a team. The authors of such a work are |
| revised at Rome in 1928, at Brussels in 1948, at | | | | called joint authors or co-authors and their copyright in |
| Stockholm in 1967 and at Paris in 1971, and was | | | | the whole unitary work in subject to special rules of |
| amended in 1979. The Convention is open to all States. | | | | copyright law. Joint works are not to be confused with |
| Instruments of ratification or accession must be | | | | either composite or collective works or collections. |
| deposited with the Director General of WIPO. It is to | | | | According to most copyright laws, joint authors can |
| be noted that WTO Members, even if they are not | | | | authorize the use of the work only jointly and the |
| party to the Berne Convention (e.g., Indonesia), must | | | | terms of protection of rights to be measured from the |
| comply with the substantive law provisions of the | | | | death of the author are computed from the death of |
| Berne Convention, except that WTO Members not | | | | the last surviving author. The moral rights, in so far as |
| party to the Berne Convention are not bound by the | | | | granted by the applicable law, pertain to each of the |
| moral rights provisions of the Berne Convention. It | | | | joint authors individually and can also be exercised |
| should also be noted that developing and | | | | separately. |
| “transition” countries may, at least until 2000, | | | | Infringement of copyright, piracy and remedies |
| delay the application of most of the obligations | | | | |
| provided for in the TRIPS Agreement (Article 65). | | | | 1. Infringement of copyright characteristically consists of |
| Naturally, States party to the Berne Convention cannot | | | | the unauthorized use itself (e.g. exhibition, reproduction, |
| delay the application of their obligations provided for in | | | | performance, broadcasting, other communication to the |
| the Berne Convention. The Berne Union has an | | | | public of the work without permission; unauthorized |
| Assembly and an Executive Committee. Every | | | | distribution, exportation, importation of copies thereof; |
| country member of the Union which has adhered to at | | | | plagiarism; derivative use without the author’s |
| least the administrative and final provisions of the | | | | consent, etc.); in countries protecting moral rights, |
| Stockholm Act is a member of the Assembly. The | | | | infringement of copyright may also consist of distortion |
| members of the Executive Committee are elected | | | | of the work, omission of the mention of authorship, etc. |
| from among the members of the Union, except for | | | | Piracy is the reproducing of published works or |
| Switzerland, which is a member ex officio. On January | | | | phonograms by any appropriate means for public |
| 1, 1997, the Executive Committee had 30 members. | | | | distribution and also re-broadcasting another’s |
| According to this convention the contracting states | | | | broadcast without proper authorization. Unlawful |
| should not show discrimination to works from other | | | | fixation of live performances is referred to in common |
| member countries. Article 2 of Berne convention gives | | | | parlance as “bootlegging.” Therefore pirated |
| a list of works eligible for protection, which covers all | | | | copyright goods include mean any goods which are |
| literary, artistic and scientific works. Protection is not | | | | copies made without the consent of the right holder or |
| available to computer programs and multimedia | | | | person duly authorized by the right holder in the |
| productions according to this convention, which are | | | | country of production and which are made directly or |
| latest developments. According to Berne convention a | | | | indirectly from an article where the making of that |
| work is protected in all the member countries by virtue | | | | copy would have constituted an infringement of a |
| of its creation itself. Berne convention provides a | | | | copyright or a related right under the law of the |
| minimum protection for the work that is lifetime of the | | | | country of importation. |
| author plus 50 years but article 9(2) provides the free | | | | |
| use of the protected work in certain cases. | | | | Legal proceedings can be instituted before a court or |
| Copyright act in India provides the protection for a | | | | any competent authority for imposing sanctions on the |
| period of life time of the author plus 60 years. | | | | infringement of copyright. There are both civil |
| COMPUTER PROGRAM & MULTIMEDIA | | | | remedies and criminal remedies are available against |
| PRODUCTIONS | | | | infringement. Civil remedies compensate the owner of |
| Computer programs are a good example of a type of | | | | rights for economic injury suffered because of the |
| work which is not included in the list contained in the | | | | infringement, usually in the form of monetary damages, |
| Berne Convention, but which is undoubtedly included in | | | | and create an effective deterrent to further |
| the notion of a “production in the literary, scientific | | | | infringement, often in the form of a judicial order to |
| and artistic domain” within the meaning of Article 2 | | | | destroy the infringing goods and the materials and |
| of the Convention; indeed, computer programs are | | | | implements which have been predominantly used for |
| protected under the copyright laws of a number of | | | | producing them; where there is a danger that infringing |
| countries, and under the TRIPSAgreement. A | | | | acts may be continued, the court may also issue |
| computer program is a set of instructions, which | | | | injunctions against such acts, failure to comply with |
| controls the operations of a computer in order to | | | | which would subject the infringer to payment of a fine. |
| enable it to perform a specific task, such as the | | | | Criminal sanctions are intended to punish those who |
| storage and retrieval of information. A computer | | | | willfully commit acts of piracy of copyright and related |
| program is produced by one or more human authors | | | | rights on a commercial scale, and, as in the case of |
| but, in its final “mode or form of expression,” it | | | | civil remedies, to deter further infringement. The |
| can be understood directly only by a machine (the | | | | purpose of punishment is served by the imposition of |
| computer), not by humans. | | | | substantial fines, and by sentences of imprisonment |
| Another, recent example of a type of work not listed | | | | consistent with the level of penalties applied for crimes |
| in Article 2 of the Berne Convention, but which is | | | | of corresponding seriousness, particularly in cases of |
| clearly included in the notion of a creation “in the | | | | repeat offenses. The purpose of deterrence is served |
| literary, scientific and artistic domain,” is multimedia | | | | by orders for the seizure, forfeiture and destruction of |
| productions. While no acceptable legal definition has | | | | infringing goods, as well as the materials and |
| been developed, there is a consensus that the | | | | implements the predominant use of which has been to |
| combination of sound, text and images in a digital | | | | commit the offense |
| format, which is made accessible by a computer | | | | Limitations on Rights |
| program, embodies an original expression of authorship | | | | The first limitation to the rights is the exclusion of |
| sufficient to justify the protection of multimedia | | | | certain categories of works from copyright protection. |
| productions under the umbrella of copyright. | | | | In some countries works are excluded from protection |
| WIPO Copyright Treaty (WCT) | | | | if they are not fixed in tangible form; for example, a |
| In December of 1996, a Diplomatic Conference was | | | | work of choreography would only be protected once |
| held, which concluded the newest international | | | | the movements were written down in dance notation |
| agreement protecting copyright - the WIPO Copyright | | | | or recorded on videotape. In some countries, |
| Treaty (WCT). This treaty responded to the need to | | | | moreover, the texts of laws, court and administrative |
| protect works when transmitted by digital means, | | | | decisions are excluded from copyright protection. |
| including via the Internet. The subject matter to be | | | | 1) Free uses, which are acts of exploitation of |
| protected through copyright by the WCT includes that | | | | works that may be carried out without authorization |
| of computer programs, whatever may be the mode | | | | and without an obligation to compensate the owner of |
| or form of their expression, and compilations of data | | | | rights for the use. Examples of free uses include: the |
| or other material, (databases) in any form, which by | | | | making of quotations from a protected work, provided |
| reason of the selection or arrangement of their | | | | that the source of the quotation, including the name of |
| content constitute intellectual creations. The rights of | | | | the author, is mentioned and that the extent of the |
| authors include the previously mentioned rights | | | | quotation is compatible with fair practice; use of works |
| of distribution, rental, and communication to the | | | | by way of illustration for teaching purposes; and use of |
| public, and it is made clear that the right of | | | | works for the purpose of news reporting. In respect of |
| communication to the public covers the transmission of | | | | the right of reproduction, the Berne Convention |
| works through digital networks such as the Internet. | | | | contains a general rule, rather than explicit detailed |
| These rights, as is normal, are subject to certain | | | | limitations. |
| limitations and exceptions. | | | | Also numerous laws contain provisions allowing |
| RELATED RIGHTS | | | | reproduction of a work exclusively for the personal, |
| Related rights also termed as neighboring rights | | | | private and non-commercial use of individuals. |
| provide legal protection to the interest of the persons | | | | 2) Non-voluntary licenses, under which the |
| or organizations that add substantial creative, technical | | | | acts of exploitation may be carried out without |
| or organizational skill in the process of bringing a work | | | | authorization, but with the obligation to compensate |
| available to public. The protection is available to | | | | the owner of rights. |
| performing artists; producers of phonograms and | | | | Non-voluntary licenses are usually created in |
| broadcasting organizations from unauthorized | | | | circumstances where a new technology for the |
| exploitation of their rights resulted from the financial | | | | dissemination of works to the public had emerged, and |
| and organizational resources that they add to the | | | | where the national legislature feared that owners of |
| copyright protected work. Protection under related | | | | rights would prevent the development of the new |
| rights also extends to broadcasting of live events and | | | | technology by refusing to authorize use of works. |
| folklores. | | | | |