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Legal Aspects of Business

Assignment -1

Assignment Topic : Rights Conferred by Copyright Law Name: ANKIT GARG Roll No. : 353 Group : 5 (Copyrights) Division: C

An Introduction
Copyright is a right given by the law to the creators of literary, dramatic, musical and artistic works and producers of cinematograph films and sound recordings. 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.

Rights Conferred By Indian Copyright Law:

Once a person acquire a copyright he also acquires certain rights and breach of any of them may constitute an infringement and entitle the copyright holder of damages. To start with copyright is not a positive right but negative one i.e. the copyright holder can stop others from exploiting his work without his consent. Rights are very important to be decided once case of infringement, injunction or damages arise. Once a person acquire a copyright he also acquires certain rights and breach of any of them may constitute an infringement and entitle the copyright holder of damages. To start with copyright is not a positive right but negative one i.e. the copyright holder can stop others from exploiting his work without his consent.

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:

(A) Economic Rights Of The Author (B) Moral Rights Of The Author

(A) 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.

These right are associated with monetary benefits that may arise by using Sec 14 (a) & (b) deal with exclusive rights to do or authorise doing of certain acts. These acts may be as follows:1. The Right To Reproduce the copyrighted work. 2. The Right To Prepare Derivative Works based upon the work. 3. The Right To Distribute Copies of the work to the public. 4. The Right To Perform the copyrighted work publicly. 5. The Right To Display the copyrighted work publicly.

1. Right to Reproduce. The reproduction right is the most important right granted by the Copyright Act. Under this right, no one other than the copyright owner may make any reproductions or copies of the work. Examples of unauthorized acts which are prohibited under this right include photocopying a book, copying a computer software program, using a cartoon character on a t-shirt, and incorporating a portion of another's song into a new song. It is not necessary that the entire original work be copied for an infringement of the reproduction right to occur. All that is necessary is that the copying be "substantial and material." This right includes all exact or substantially similar reproduction of the work. The author of a work is the first owner of the copyright( Section 17).However, for works made in the course of an author's employment under a contract of service, the employer is the first owner of the copyright. The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof: Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

2. Right to make derivative works. Derivative works include translations, adaptations to other media (for instance, movies based on books, books based on movies, toys based on movies, movies based on other movies, books based on other books, art works based on photographs, etc.), annotations and editorial revisions. Unauthorized derivative works receive no copyright protection, even for their original elements.

In copyright law, a derivative work is an expressive creation that includes major, copyright-protected elements of an original, previously created first work (the underlying work). The derivative work becomes a second, separate work independent in form from the first. The transformation, modification or adoption of the work must be substantial and bear its author's personality to be original and thus protected by copyright. Translations, cinematic adoptions and musical arrangements are common types of derivative works.

Most countries' legal systems seek to protect both works. They grant authors the right to impede or otherwise control their integrity and the author's commercial interests. Derivatives and their authors benefit in turn from the full protection of copyright without prejudicing the rights of the original work's author.

For copyright protection to attach to a later, allegedly derivative work, it must display some originality of its own. It cannot be a rote, uncreative variation on the earlier, underlying work. The latter work must contain sufficient new expression, over and above that embodied in the earlier work for the latter work to satisfy copyright laws requirement of originality.

In both of these cases, the defendants were held not to be liable for copyright infringement, even though they presumably copied a considerable amount from the plaintiff's work. They were not liable because the plaintiff did not enjoy copyright protection. The plaintiffs' works lacked enough originality to acquire copyright protection of their own. They were too close to the original works on which they were based.

3. Right To Distribute. The author has the right to control the sale and importation of their work, subject to the "first sale doctrine" described under Infringement. Section 106(3) of the 1976 Copyright Act grants copyright owners the exclusive right to distribute copies or phonorecords of a copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending. To infringe this right, one must actually disseminate either copies or phonorecords. In the traditional sense, to infringe this right, a work must "first [be] fixed in tangible 'copies' or 'phonorecords' and those copies or phonorecords [must then be] distributed to the public." However, in cases involving Internet "distribution" the process is reversed, "[a] work is first transmitted to the public in the form of intangible digital information, and it is then fixed . . . on the receiving end." The distribution right is implicated by a wide variety of conduct, including the sale of books at a bookstore, used CDs at a garage sale, and pirated DVDs at a flea market; the lending of books by a library; and transferring pirated software to users from "warez" websites on the Internet. Distribution is not limited to sales, but also includes other transfers of ownership such as gifts or barter. The right to distribute legitimate copies of works is substantially circumscribed by the first sale doctrine. This means that the copyright owner generally has only the right to authorize or prohibit the initial distribution of a particular lawful copy of a copyrighted work. It is important to understand, however, that the distribution of an unlawfully made (i.e., infringing) copy will subject any distributor to liability for infringement. The court may not have focused on the reproduction right, apparently because of its uncertainty whether the operator of the bulletin board system could itself be held to have reproduced a work that was (a) uploaded by one subscriber and (b) downloaded by another. Whether the litigants in Frena put the issue properly in dispute or not, the right to distribute copies of a work has traditionally covered the right to convey a possessory interest in a tangible copy of the work. Indeed, the first sale doctrine implements the common law's abhorrence of restraints on alienation of property by providing that the distribution right does not generally prevent owners of lawfully made copies from alienating them in a manner of their own choosing. It is clear that a Frena subscriber, at the end of a transaction, possessed a copy of a Playboy photograph, but it is perhaps less clear whether Frena "distributed" that photograph and whether Frena or the subscriber "reproduced" it (and, if the latter, whether current law clearly would have made Frena contributory liable for the unauthorized reproduction).

4. Right To Publicly Perform. The public performance right allows the copyright holder to control the public performance of certain copyrighted works. The scope of the performance right is limited to the following types of works:

literary works, musical works, dramatic works, choreographic works, pantomimes, motion pictures, and audio visual works.

Under the public performance right, a copyright holder is allowed to control when the work is performed "publicly." A performance is considered "public" when the work is performed in a "place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered." A performance is also considered to be public if it is transmitted to multiple locations, such as through television and radio. Thus, it would be a violation of the public performance right in a motion picture to rent a video and to show it in a public park or theatre without obtaining a license from the copyright holder. In contrast, the performance of the video on a home TV where friends and family are gathered would not be considered a "public" performance and would not be prohibited under the Copyright Act. The public performance right is generally held to cover computer software, since software is considered a literary work under the Copyright Act. In addition, many software programs fall under the definition of an audio visual work. The application of the public performance right to software has not be fully developed, except that it is clear that a publicly available video game is controlled by this right. Performance applies to dynamic works such as drama, music and choreography. Any act that makes such works perceivable to viewers or listeners is a performance; "public" generally means in an environment "open to the public." Note that authors have no performance right in a sound recording, although there is a performance right in musical compositions.

5. Right To Publicly Display. Display applies to static works such as photography and sculpture. Generally, the owner of a copy has the right to display their copy to anyone present at the place where it is located: this means that authors cannot keep art works out of galleries. The display right is generally invoked to stop broader displays of a work, such as on a television broadcast or web site. Note that authors have no display right in architectural works. The public display right is similar to the public performance right, except that this right controls the public "display" of a work. This right is limited to the following types of works:

literary works; musical works; dramatic works; choreographic works; pantomimes; pictorial works; graphical works; sculptural works; and stills (individual images) from motion pictures and other audio visual works.

The definition of when a work is displayed "publicly" is the same as that described above in connection with the right of public performance.

b) In case of computer programme there are two more additional rights to the abovementioned rights. The right to sell or give on commercial rental or offer for sale 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. Reproducing the work is given paramount importance it includes the right to fix the work in any tangible medium it may be electronic medium. Reproduction need not mean exact line-by-line reproduction but when there is substantial reproduction it will constitute infringement. Because the right of a copyright holder is to prevent others from not only substantial reproduction but exact reproduction as well. Publication of work means to communicate to the public. This can be by printing, sending e-mail, web publishing, etc. The author also has right to translate his work from one language to another language. Author also has right to adopt his work in any other mode of expression. A copyright holder can Assign, Transmit or even relinquish his copyright. Section 18 when a copyright holder decides that somebody else can exploit commercially more effectively he can assign or transfer his rights to him for consideration. Assignment is in form of agreement which has no special format it is in writing describing the terms and conditions decided mutually between the author and assignee. The assignment can be in part or full. Section 19 makes it mandatory for all assignments to be in writing with duration, territorial jurisdiction, nature of rights singed by assigner and assignee. Any disputes between the assignor or assignee shall be decided by the COPYRIGHT BOARD established under the Act. The assignment agreement should contain the work sought to be assigned, the extent of right, duration, territory, amount of consideration or royally and termination.

B) Moral Rights:

These rights enable the author whether to publish, when to publish, in what form etc. He has a moral right to be associated with his work. Another way to exercise his moral right is to prevent any alterations, changes in his work to distort his work or image or honour. These right remains even after transfer of his work till copyright subsists.

Section 57 of the Act defines the two basic moral rights of an author. These are: (i) Right of paternity, and (ii) 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.