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Section c Copyrights Copyright is a legal right created by the law of a country that grants the creator of original work exclusive rights for its use and distribution. This is usually only for a limited time. 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 works (including computer programmes, tables and compilations), dramatic, musical and artistic works, cinematographic films and sound recordings. copyright means the exclusive right to do or authorize others to do certain acts in relation to –
- Literary, dramatic or musical works;
- Artistic work;
- Cinematograph film; and
- Sound recording. Nature of Copyright Protection Automatic Copyright is an unregistered right which subsists automatically as soon as the work that is eligible for protection is created and recorded on some medium. Originality The work protected need not be new. However, it must be original in the sense that it is not copied from some other source but is the result of an application of effort by the creator of the work. Exclusions Copyright protects the expression of ideas but not the idea or concept underlying a piece of work. For that reason, procedures, methods of operation and mathematical concepts are excluded from copyright protection. Salient Features The salient features of copyright protection are: It protects aesthetic creations without formalities. Registration is not necessary. It protects forms of expression of ideas only, not the ideas themselves. It is not concerned with the quality of the work. It gives protection to original works only. Indian Copyright Law In India the first Copyright Act was passed in 1914. The Act, presently in force was legislated in the year 1957
India being a member both of the Berne Convention and the Universal Copyright Convention, amended its Copyright Act of 1957, in 1983, 1984, 1992, 1994, 1999 and 2012 to bring the Indian law in conformity with the these international conventions. Works in which Copyright subsists Section 13 of the Act lists out the work, in which copyright subsists. Subject to the provision of this section and the other provisions of this Act, copyright shall subsists throughout India in the following classes of works, a) Original literary, dramatic, musical & artistic work, b) Cinematograph films, and c) Sound recording. Literary work It includes computer programmes, tables, compilations including computer database. Dramatic work It includes any piece for recitation, choreographic work or entertainment in a dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. Musical work Consists of music and includes any graphical notation of such work, but does not include any works or any action intended to be sung, spoken or performed with the music. Artistic work It means painting, a sculpture, a drawing, an engraving or a photograph, whether or no any such work possesses artistic quality. A work of ‘architecture’ means any building or structure having an artistic character or design or any model for such building or structure. Cinematograph film Means any work of usual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and ‘cinematograph’ shall be construed as including any work produced by any process analogous to cinematography including video films. Sound recording A recording of sounds from which such sounds may be re-produced regardless of the medium on which such recording is made or method by which the sounds are produced. Qualification for Copyright Subsistence In order to qualify for copyright the work, apart from being original, should also satisfy the following conditions (except in the case of foreign works) –
- The work is first published in India.
b) To restrain or claim damages The above rights are conferred on the author even after the assignment of the copyright. The author’s computer programmes are treated differently Economic Rights The owner of the copyright in the above works has under S. 14 of the Act the exclusive rights to do or authorize the doing of any of the following acts in respect of a work or any substantial part thereof, namely: a. in the case of a literary, dramatic or musical work, being a computer programme, i. to reproduce the work in any material form including the storing of it in any medium by electronic means; ii. to issue copies of the work to the public and not being copies already in circulation; iii. to perform the work in public, or communicate it to the public; iv. to make any cinematograph film or sound recording in respect of the work; v. to make any translation of the work; vi. to make any adaptation of the work; vii. to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-cls. (i) to (vi) b.in the case of a computer programme i.to do any of the acts specified in cl. (a); ii.to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme provided that commercial rental does not apply in respect of computer programmes which by itself is not the essential subject of the rental. Rights of Broadcasting Organisation and Performers Chapter VIII of the Act containing Section 37-39A deals with rights of broadcasting organisations and of performers. Broadcast Reproduction Right Section 37 entitles every broadcasting organisation to have a special right to be known as "broadcast reproduction right" in respect of its broadcasts for twenty-five years from the beginning of the calendar year next following the year in which the broadcast is made. As per sub Section (3) of Section 37 during the continuance of a broadcast reproduction right in relation to any broadcast, any person who, without the licence of the owner of the right does any of the following acts of the broadcast or any substantial part thereof,
- (a) re-broadcasts the broadcast; or (b) causes the broadcast to be heard or seen by the public on payment of any charges; or (c) makes any sound recording or visual recording of the broadcast; or (d) makes any reproduction of such sound recording or visual recording where such initial recording was done without licence or, where it was licensed, for any purpose not envisaged by such licence; or
(e) sells or gives on commercial rental or offer for sale or for such rental, any such sound recording or visual recording referred to in clause (c) or clause (d) and subject to the provisions of Section 39 deemed to have infringed broadcast reproduction right. Performer’s Right Section 38 provides that where any performer appears or engages in any performance, he shall have a special right to be known as the "performer's right" in relation to such performance. The performer's right subsist until fifty years from the beginning of the calendar year next following the year in which the performance is made. Exclusive Right of Performer As per Section 38A without prejudice to the rights conferred on authors, the performer’s right which is an exclusive right subject to the provisions of the Act to do or authorise for doing any of the following acts in respect of the performance or any substantial part thereof, namely:— (a) to make a sound recording or a visual recording of the performance, including— (i) reproduction of it in any material form including the storing of it in any medium by electronic or any other means; (ii) issuance of copies of it to the public not being copies already in circulation; (iii) communication of it to the public; (iv) selling or giving it on commercial rental or offer for sale or for commercial rental any copy of the recording; Lesson 8 Copyright 161 (b) to broadcast or communicate the performance to the public except where the performance is already broadcast. It may be noted that once a performer has, by written agreement, consented to the incorporation of his performance in a cinematograph film he shall not, in the absence of any contract to the contrary, object to the enjoyment by the producer of the film of the performer’s right in the same film. However, the performer shall be entitled for royalties in case of making of the performances for commercial use. Acts not Constituting Infringement of Broadcast Reproduction Right and Performers Right Section 39 stipulates situations in which no broadcast reproduction right or performer’s right shall be deemed to be infringed. These include: (a) the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research; or (b) the use, consistent with fair dealing of excerpts of a performance or of a broadcast in the reporting of current events or for bona fide review, teaching or research; or (c) such other acts, with any necessary adaptations and modifications, which do not constitute infringement of copyright under Section 52.
Without permission of authorship the goods are not permitted to imported into the U.S. Rights to perform the work publicly Section 106 [5] of the Copyright Act provided that in the case of all copyrighted works other than sound recording & works of architecture, the copyright owner has the exclusive right to display the work publicly. A display is “public” under the same circumstances in which a performance is “public”. Namely if it occurs at a place open to the public (or) at a place where a substantial number of persons outside of the normal circle of a family. Copyright Ownership Issues [17 U.S.C. § 201(a)]: Copyright in a work protected under the copyright act vests [provide with power and authority] in the author or authors of the work Issues about ownership arise when more than one person creates a work Unless copyright has been explicitly conveyed with those physical articles, the original authors generally retain all other rights associated with the works. Joint Works [intent to create a unitary whole] A joint work is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. One copyright exists in the created works Joint authors are those who “mastermind” or “super mind” the creative effort. Ownership Rights in Joint Works If individual are authors of a joint work, each owns an equal undivided interest in the copyright as a tenant in common, [each has the right to use the work, prepare derivative works, display it without seeking the other coauthor’s permission]. If profits arise out of such use, an accounting must be made so, that each author shares in the benefits or proceeds. The death of a coauthor, his or her rights pass to heirs who then own the rights in common with the other co author. Ownership of a physical object is separate and distinct from ownership of the copyright embodied in the material object Ownership in Derivative or Collective Works The author of the original book has rights only to his or her work and cannot reproduce or perform the derivative work without permission.
If a work such as a book is created by one person who intends it to be complete at the time and illustrations are later added to it by another, the work cannot be a joint work because there was no intention of the parties to create a unitary whole at the time of their creation. The author of the derivative work cannot create further works based on the original book without permission and cannot reproduce the original work without permission. Multiple ownership rights may also arise if separately copyrightable works are compiled into a collection. For Example: If essays written by Jerry Seinfeld, Ellen DeGeneres, and Paul Reiser are collected into a humor anthology by Bill Jones (with permission of the original authors),the original authors retain their exclusive rights (such as rights to reproduce, distribute,and perform) in their respective essays. No join work is created because there was no intent at the time the separate essays were created to merge them into a unitary whole. No derivative work is created because the original works have not been transformed in any way and nothing new has been added to them. The anthology by the compiler, Bill Jones, is a collective work and pursuant to section 201(c) of the act, Jones acquires only the right to reproduce and distribute the contributions as part of the particular collective work or any revision of the collective work. Works Made for Hire The general rule is that the person who creates a work is the author of that work and the owner of the copyright therein, there is an exception to that principle: the copyright law defines a category of works called works made for hire. If a work is “made for hire”, the author is considered to be the employer or commissioning party and not the employee or the actual person who created the work. The employer or commissioning party may be a company or an individual. There are two types of works that are classified as works made for hire; works prepared by an employer within the scope of employment and certain categories of specially ordered or commissioned works Copyright Registration A work is “created” when it is fixed in a copy or phonorecord for the first time. Although not required to provide copyright protection for a work, registration of copyright with the Copyright Office in expensive, easy and provides several advantages, chiefly, that registration is a condition precedent for bringing an infringement suit for works of US origin. To register a work, the applicant must sent the following three elements to the Copyright Office: a properly completed application form, a filing fee, and a deposit of the work being registered. Registration may be made at any time within the life of the copyright. INFRINGEMENT OF COPYRIGHT Definition of Infringement [S. 51] Copyright in any work is deemed to be infringed,
Section 52 gives a long list of acts which do not constitute infringement of copyright. Infringement of Copyright Programmes [S. 52(1)(aa)] In respect of computer programme the following acts do constitute infringement: The making of copies or adaptation of a computer progromme by the lawful possessor of a copy of such computer programme from such copy
- in order to utilise the computer programme for the purpose for which it was supplied; or
- to make back-up copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied; or
- the doing of any act necessary to obtain information essential for operating inter- operability of an independently created computer programme provided that such information is not otherwise readily available or
- the observation, study on test of functioning of the computer programme in order to determine the ideas and principles which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied; or
- the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use. The definition of literary work include a computer programme. In S. 52(1) the term ‘literary work’ occurs in various clauses, but computer programme is excluded only from S. 52 (1)(a). It would thereof appear that whenever the term literary work appears in S. 52 except cl. (a) it should be interpreted as including a computer programme. What are the defenses available in an action for infringement of copyright? There are three types of remedies against infringement of copyright - namely, civil, criminal and Administrative. Civil remedies include injunction, damages or account of profits, delivery-up of infringing copies and damages for conversion. In the case of innocent infringement some of these remedies are not available. Criminal remedies provide imprisonment of the accused or imposition of fine or both, seizure of infringing copies and delivery-up of infringing copies to the owner of the copyright. Administrative remedies consist of moving the Registrar of Copyright to ban the import of infringing copies into India and the delivery of infringing copies confiscated to the owner of the copyright. Apart from the remedies against infringement of copyright the Copyright Act provides for the protection of certain special rights, known as moral rights Patents What is a Patent A patent is an exclusive right granted to a person who has invented a new and useful article or an improvement of an existing article or a new process of making an article. The person with the patent has exclusive right to make, use, sell or distribute the patented invention. Generally, the time limit of a patent is 20 years. After the expiry of the duration of patent, anybody can make use of the invention.
In order to be patented, the invention should fit into specific criteria, which may differ from country to country. A patent is a form of industrial property or as it is now called intellectual property. The owner of the patent can sell this property. He can also grant licences to others to exploit the patent. The property in a patent is similar in many respects to other forms of property. A patent being a creation of statute is territorial in extent. A patent granted in one state cannot be enforced in another state unless the invention concerned is also patented in that state. A patent is not granted for an idea or principle as such, but for some article or the process of making some article applying the idea. Definition of Invention The Indian Patent Act defines an ‘invention’ as: “a new product or process involving an inventive step and capable of industrial application.” Salient features of a patent Invention must be ‘new’ According to the IPA, New Invention means any invention which has not been published in any document or used in the country or elsewhere in the world before the date of filing of patent application with complete specification. E.g. The recent grant of patent in USA to Turmeric products was challenged on this ground. The Indian council of scientific and industrial research (CSIR) challenged the grant of patent on the ground that there was no novelty in the invention. Publications are available in Indian texts and Turmeric preparations have been used in our country since time immemorial. The patent has been since revoked. It must be Inventive To be inventive it must be non-obvious to a person skilled in that particular art. It must not follow logically from what is already known. It has to be the result of independent thought, ingenuity, and research. It should involve a technical advance or have an economic significance or both. Incremental Inventions Incremental inventions – small improvements that make them more efficient, or more useful – eminently qualify for patents if they are novel, have an inventive step and are capable of industrial application. Invention must have ‘industrial application’ That is, it can be made or used in an industry, say tourism. Industry does not imply the use of machinery or manufacturing of an article. It must be useful or practical. If it cannot be put to any beneficial use of mankind, it cannot be patented.
- Mere discovery of a scientific principle or the formulation of an abstract theory. For example, a discovery merely unveils a hidden thing; it has no practical utility; Mixture of Components •A substance obtained by a mere admixture of known components; Traditional knowledge; Mental acts or methods of playing game. Misc
- A literary dramatic, musical or artistic work including cinematographic work and television productions (covered by copyright);
- Integrated circuits (separate field). Computer programmes and microorganisms have emerged as two special categories where patent protection is increasingly sought. Under the Indian law, computer programmes are protected under the Copyright Act, 1957; they are not entitled to protection through patents. However, a computer system programmed is patentable. In 1980, the US Supreme Court granted a patent to Dr. Ananda Chakraborty for a genetically engineered bacterium, which could degrade oil spills. It did not exist in nature. It satisfied the criteria of novelty, non-obviousness and utility for a patentable invention. For the first time in history a living entity, the engineered microorganism, was accorded the status of a product. Rights of a Patentee A patentee has the right to ⦁ Exploit the patent; ⦁ Assign and licence the patent; ⦁ Surrender the patent; ⦁ Sue for infringement. All these rights, except sueing for infringement are available on application for a patent and before its grant. Right to Exploit the Patent Only the Patentee has the right to exploit the patent. All others cannot exploit it without permission. IPA grants a period of twenty years to a patent from the date of its application.
The patent has to renewed annually for it to remain valid. Right to Assign and Licence The patentee can assign rights or grant licenses or enter into other arrangements for a consideration. A licence or an assignment to be valid must be in writing and registered with the Controller of Patents. Right to Surrender The patentee can surrender the patent at any time by giving a notice to the Controller of Patents. The Controller gives notice of surrender to the persons whose names are entered in the register of patents and showing interest in the patent. The Controller also advertises the same for any objections to be raised. The Application for surrender is then accepted. Right to Sue for Infringement A patentee can institute proceedings in a District Court having jurisdiction. Joint-Inventors/Co-Owners of Patent Rights Co-owners have equal undivided share in a patent, unless there is an agreement to the contrary. Limitations on Patentee’s Rights Government Use for Government Purposes ⦁ The Government can use any patented product or process for its own use. Government means the Central Government, State Government or a Government undertaking. It includes Council of Scientific and Industrial Research. Acquisition by the Central Government An invention which may or may not be patented, can be acquired by the Central Government by a notification in the official Gazette if it is required for a public purpose. A compensation will be paid as mutually agreed upon. Medical Purposes ⦁ In the case of medicines or drugs, they can be imported by the Government for its own use or for distribution in any dispensary, hospital or other medical institution maintained by or on behalf of the Government. Defence If an invention is relevant for defence purposes, the Controller may prohibit or restrict publication of information after ratification from the central government.
S. 6 tells us who is eligible to apply for a patent. An application for a patent may be made by the actual inventor for the invention, or an assignee of the right to make an application or a legal representative of either. It is the person who first applies for a patent who is entitled to the grant. A prior inventor of the invention who applies subsequently will not get the patent as against the first applicant. A person who has merely communicated an idea to another, who actually gave practical shape to the idea and developed the invention, cannot claim to be the first and true inventor. A mere financial partner, a firm or a Corporation cannot be the sole applicant claiming to be the inventor. But they can apply as assignee of the right to apply. Procedure An overview of the patent procedure indicates the following steps to be followed:
- Filing of Application
- Filing of complete, after provisional application.
- Preliminary scrutiny of application
- Publication of application after 18 months
- Early publication on specific request
- Examination and early examination
- Opposition to the grant
- Grant and sealing of patent
- Submission of typed copy of the specification
- Publication of official journal Types of Application
- Provisional Application
- Utility Application
- Design Application
- Plant Application
- Continuation Application
- PCT (Patent Cooperation Treaty) Application
- Divisional Application
Preparing the Application Title Cross-references to related applications Background Summary of invention Brief description of drawing Detailed description of the invention Claims What constitutes infringement of patent? What are the reliefs available against infringement? What constitutes infringement of Patent is not defined in the Patents Act. But obviously infringement of a patent is the violation of the monopoly rights conferred by the grant. The right conferred by the Patent is the exclusive right to make, use, exercise, sell or distribute the invention in India. Hence infringement consists in the violation of any of these rights. Defences for the Defendant The defendant in a suit for infringement of a patent may plead one or more of the following defences:
- plaintiff not entitled to sue for infringement,
- denial of infringement or of any threat or intention to infringe,
- leave or licence express or implied to use the invention,
- estoppel or res judicata,
- claims alleged to be infringed are invalid on certain grounds,
- the acts complained of are in accordance with the conditions specified in S. 47 (Government use, experiment, research and education),
- existence of a restrictive contract declared unlawful,
- Acts complained of come within the scope of innocent infringement, or done after failure to pay renewal fee, or done before the date of amendment of the specification (available only against a claim for damages or account of profits,
- alleged infringement not novel or is obvious (Lord Moulton's defence or Gillette defence). Counter - claim for revocation may be made by the defendant in his written statement instead of a separate petition for revocation. Reliefs The reliefs available to a successful plaintiff in a suit for infringement include:
- an injunction, and
- either damages or account of profits. Damages or Account of Profits A successful plaintiff in a suit for infringement is entitled to the relief of damages or an account of profits with certain exceptions. The exceptions are:
- infringement was innocent,
The value inherent in achieving consumer loyalty to a particular product or service through the maintenance of consistent quality of the products or service offered under a mark is called goodwill. they identify one maker’s goods or services and distinguish them from those offered by others They indicate that all goods or services offered under the mark come from a single producer, manufacturer, or “source” They serve as an advertising device so that consumers link a product or service being offered with a mark
jntuworldupdates.org Specworld.in Smartzworld.com Smartworld.asia TYPES OF MARKS There are four different types of marks. They are: Trademark Service mark Certification mark Collective mark Trademark & Service mark The term trademark thus refers to some physical and tangible good, and service mark refers to an intangible service, in common usage the term trademark is often used to refer to marks for both goods and service. The key point in this legal description is that a trademark is a visual mark that may use any combination of letters and imagery to aid a company in differentiating itself from other entities. The purpose of a trademark is to visually represent a person, company, or product, and trademark should be designed to provide easy and definite recognition. The term mark will be used as a synonym for both trademark and service marks. The federal statute ((law) an act passed by a legislative body) governing trademark law, the U.S. Trademark Act (Lanham Act, found at 15 U.S.C 1051 et seq.) itself states that the term mark includes any trademark, service mark, collective mark, or certificate mark. A Certification mark A citification mark is a word, name, symbol, device, or combination thereof, used by one person to certify that the goods or services of others have certain features in regard to quality, material, mode of manufacture, or some other characteristic (or that the work done on the goods or services was performed by members of a union or other organization). For example: Hallmark, ISO mark and in U.S Underwriters Laboratory seals of approval ( Underwriters Laboratory is the largest and best known independent, not for profit testing laboratory in the world based in Northwood, Illinois, UL conducts safety and quality tests on a broad range of products, from firedoor’s to CCTV cameras seals of approval ). Collective Mark A collective mark is one used by a collective membership organization, such as a labor union, fraternity, or professional society, to identify that the person displaying the mark is a member of the organization. Thus, the FUTURE FARMERS OF AMERICA and AMERICAN BAR ASSOCIATION marks indicate membership in certain organizations. A company may use several marks For Example: the word: COCA-COLA, the stylized WAVE DESIGN, and the slogan “THINGS GO BETTER WITH COKE”. All of these marks are used on one product and all are protected by the Coca-Cola Company. On some occasions, companies use house marks to establish recognition in a wide range of products or service.
