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🔴 INTELLECTUAL PROPERTY LAW 🔴

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MODULE I -INTRODUCTION
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(A) ORIGIN AND DEVELOPMENT OF INTELLECTUAL PROPERTY


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INTRODUCTION

Intellectual property rights have grown to a position from where it plays an


important role in the global economy’s development over the past two decades. In
1990s, laws and regulations were strengthened I this area by many countries
unilaterally. In the multilateral level, there was enhanced protection and
enforcement of IPRs to the level of solemn international commitment because of the
successful conclusion of the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) in World Trade Organization.

There is a vast domain of intellectual property. Designs, Copyrights, and Patents


Trademarks since a long time have received recognition. Newer forms of the
protection are also developing particularly encouraged by the stimulating emergence
in technological and scientific activities.

THE CONCEPT OF INTELLECTUAL PROPERTY

The intellectual property’s concept is not a new one as Renaissance northern Italy
is thought to be the framework of the intellectual property system. A Venetian Law
of 1474 made the first methodical attempt to protect inventions in a form of
patent, which allowed right to an individual for the first time. The invention of
the printing press and movable type by Johannes Gutenberg around the year 1450,
helped in the origin of the first copyright system in the world.

By the end of 19th century, new creative ways of manufacture aided caused large-
scale industrialization accompanied by fast growth of cities, the investment of
capital, expansion of railway networks, and nationalism led many countries to
establish their modern Intellectual Property laws. In this point of time, the
International Intellectual Property system also began to take shape with the
creation of the Paris Convention for the Protection of Industrial property in 1883
and the Berne Convention for the protection of Literary and Artistic Works in 1886.
The evidence underlying Intellectual Property throughout its history has been that
the rewards and credits related with ownership of inventions and creative works
encourage further creative and inventive activity that, motivates economic growth

INTELLECTUAL PROPERTY SYSTEM IN INDIA

In 1485 the first system of protection of intellectual property came in the form on
Venetian Ordinance historically. In England in 1623 it was followed by Statue of
Monopolies, which extended rights of patents for Technology Inventions. In 1760,
patent laws were introduced in The United States. Between 1880 and 1889 patent laws
of most European countries were developed. In the year 1856 in India Patent Act was
introduced which remained in force for more than 50 years which was later modified
and revised and was called “The Indian Patents and Designs Act, 1911”. A complete
bill on patent rights was enacted after Independence in the year 1970 and was
called “The Patents Act, 1970”.
Specific statues protected only specific type of intellectual output; till very
recently only four forms were protected. The protection was in the form of grant of
designs, patents, trademarks and copyrights. In India, copyrights were regulated
under the Copyright Act, 1957; trademarks under Trade and Merchandise Marks Act
1958; patents under Patents Act, 1970; and designs under Designs Act, 1911.

DEVELOPMENT OF TRIPS IN INDIA

The Development of World Trade Organisation was as a result of International trade


calls and framework of trade calls for harmonization of several aspects of Indian
Law relating to Intellectual Property Rights. The TRIPS agreement set minimum
standards for protection for IPR rights and also set a time frame within which
countries were required to make changes in their laws to comply with the required
degree of protection. In view of this, India has taken action to modify and amend
the various IP Acts in the last few years.

Patents Act, 1970:

India after signing the TRIPS agreement and forming part of the Agreement
establishing the World Trade Organization (WTO) for the purpose of reduction of
distortions and impairments to international trade and promotion of effective
protection of intellectual property rights, became signatory, the Patent act as
amended time to time in the year 1995, 1999, 2002 and 2005 to meet its obligations
under the TRIPS agreement. Further, it has been amended to support the various
technological developments in India, to match with the development of the
International intellectual property laws, India has also made amendments in the
Intellectual property rights. The amendments were also aimed at making the Act a
modern, harmonized and user-friendly legislation for protection of national and
public interests along with fulfilling India’s international obligations under the
TRIPS Agreement

Trade Mark Act, 1999:

The law of trademarks is also now modernized under the Trademarks Act of 1999. A
trademark is a special symbol for distinguishing the goods offered for sale or put
in the market by one dealer from another. In India, the trademarks were protected
for more than four decades as per the provisions of the Trade and Merchandise Mark
Act, 1958. India joined the World Trade Organisation from its inception. One of the
agreements in that related to the Intellectual Property Rights (TRIPS). In
December, 1998 India acceded to the Paris Convention.

The Designs Act, 2000:

Science and technology started boosting up in the beginning of 20thcentury, and the
urge to provide more reliable judicial system came in place for better protection
of this field and for the protection of the industrial designs. The steps were
required to be taken to promote more and more development in design industry by
providing protection under registered design. Though it was very essential to
protect the design only to the extent it was required and not any more than that
and to allow use of available design for free too. The current Act is in line with
the TRIPS agreement and therefore line with globalisation of trade and commerce.

Copyright Act, 1957:

The Copyright Act, 1957 is one of the oldest existing intellectual property rights
act. It has been amended quite a few times to align with global trade and commerce.
The act relates to person creativity to, it protects the right of literary,
artistic, musical works and sound recordings and cinematograph films. For instance,
it provides the copyright to author for his lifetime and 60 years after his death.
It does not required to be qualitative work for being eligible for the registered
under this act, any unique work with very little in common with any other work can
be considered as eligible for this purpose.

CONCLUSION

To conclude, the various modifications and amendments to earlier Intellectual


Property Laws are an indication of India’s move towards new IPR regime so as to
prepare ourselves for the global trade competition.

(B)  CONCEPT CORPOREAL AND INCORPOREAL PROPERTY


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Corporeal Property
It is also known as tangible property. It is seen to the people, i.e.
land and chattels. They are material things. It has been recognised from
the initial stage of human civilization. Corporeal property again can be
divided into two kinds:
1. Moveable: E.g. Chattels
2. Immoveable: E.G. Land, Buildings

(A) Immovable property

TPA has classified property into the movable property and immovable property unlike
English law which has classified property as real and personal property.

The Privy Council observed: “The term ‘immovable property’ comprehends undoubtedly
all that would be real property according to English law and possibly more.

Importance of nature of the property

It is essential to classify property as TPA has different rules of procedure for


the movable and immovable property. Transfer of movable property may be completed
by mere giving of possession, but for immovable property, it is necessary to have
it registered.

Thus for a valid transfer, it is essential that the nature of property should be
known.

(B) MOVABLE PROPERTY


Similar to immovable property the term ‘movable’ property has also not been clearly
defined anywhere clearly.

TPA: It says that standing timer, growing crops and grass are not immovable hence
movable property

General clauses Act: It says property of every description except immovable

Sales of goods act: Section 2 (7) states “goods” means every kind of movable
property other than actionable claims and money; and includes stock and shares,
growing crops, grass, and things attached to or forming part of the land which is
agreed to be severed before sale or under the contract of sale;

Incorporal Property
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Incorporal property is intangible property. It is also known as the
“Intellectual or Conventional Property.” It is a recent development in the
world. The right in incorporeal property is right in rem (rem = entire
world). Incorporeal property is of two kinds -
1. Immaterial things e.g. Patents, Copyrights, Trademarks etc.
2. Jura in re aliena (Right over other property) e.g. Leases,
Servitudes, Securities etc.

Immaterial Things:

They are incorporeal properties. They are produced by human skill


and labour. The book written by an author is recognised as a property of
his own. Examples of these things/ rights are patents, copyrights,
trademarks, etc. The recognotion of these rights is a new trend and a new
idea. To protect these rights Patents Act, Copyrights Act, Trademarks
Act, etc. have been enacted in every country, including India.
Jura in

Re Aliena (Right over other property)


These are also incorporeal properties. These are known as
“Encumrances”. They are right in rem over a res (thing) owned by
another. Rights in re aliena run with the thing encumbered. They bind the
res (thing) in whosoever hands it may pass. There are certain convents.
The convenants and encumbrances restrict the owner to certain extent
with regard to his own property. These important encumbrances are
leases, servitudes, securities, trusts, etc.

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(C)MEANING AND CONCEPT OF COPYRIGHTS,TRADEMARKS, GEOGRAPHICAL INDICATIONS,


INDUSTRIAL DESIGNS,PATENT AND PLANT VARIETIES

COPYRIGHTS
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This is a type of intellectual property which is related with written


material. Even a poem, a picture or a musical note can have a copyright.
The copyright prohibits others from copying or publishing the written
material, picture or music and thereby the creator is entitled to the income
derived from such a literary product.
Protects creative works that are musical, literary, artistic works, lectures,
plays, art reproductions, models, photographs, computer software, etc. The rights
under this also have a specified duration of protection. The term of a work, [other
than a photographic work or a work of applied art] is calculated on a basis other
than the life of a natural person.
Such a term shall be a term not less than 50 years from the end of
the calendar year of the authorized publication or failing such authorized
publication within 50 years from the making of the work [50 years from
the calendar year of making].
For example, the term of protection available to performers is at
least 50 years computed from the end of the calendar year when the
performance took place.

The law relating to copyrights is provided by The Copyright Act]


1957 (Act No. 14 of 1957). The Indian Copyright Act, 1914 (Act No. 3 of
1914) was enacted by the British Parliament for India. It was the first
modern copyright legislation in India. The Indian Copyright Act, 1914
was solely based on the English Copyright Act, 1911. The framers of the
Indian Copyright Act, 1914 had framed that Act by taking word to word
from the English Act.
After independence, India participated in the Berne Convention for
the protection of literary and artistic works and the Universal Copyright
Convention, 1952. Taking the inspiration and spirit from these two
Conventions, India enacted a new Act “The Copyright Act, 1957”
repealing the Copyright Act, 1911. Great changes were brought in the
Copyright Act, 1957 according to the two Conventions.

TRADEMARK OR SERVICE MARK


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This is a design of a picture used by a certain company for its


specific product. It is generally in a symbolic form. It represents goodwill
of the firm using it. For example, a gramophone with a dog sitting in front
of it is the trademark of HMV.
Registrable Marks (words/signs / or combinations) capable of
distinguishing the goods or services in connection with which they are
used in course of trade which are certified by the proprietor of the mark in
respect to the origin, material, mode of manufacture of goods or
performance of services. In some countries distinctive sound or smell
characterising the product can also be registered as a trademark. e.g.
‘Tyre that smells like a rose.’ Initially a trademark is valid for not less
than 7 years but it can be perpetually renewed from time to time.
The law relating to trademark is governed the Trade Mark Act
1999. The trademarks are a diverse and familiar feature in both the
industrial and commercial markets. For more than one thousand years and upto the
middle of the eighteenth century, the Great Britain was
importing the textiles, ornaments, etc. from India. At that time, the Indian
mark goods were very popular in entire Europe. In the Roman times, it
was common for pottery to be embossed or impressed with a mark, for
example a representation of a dolphin or the maker’s initials, as a visit to
the British Museum will testify. The merchant’s marks were used in
commerce in Britain since the thirteenth century.

GEOGRAPHICAL INDICATION
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A geographical indication is a sign used on goods that have a specific geographical


origin and possess qualities or a reputation that are due to that place of origin.
Most commonly, a geographical indication consists of the name of the place of
origin of the goods. Agricultural products typically have qualities that derive
from their place of production and are influenced by specific local factors, such
as climate and soil. Whether a sign functions as a geographical indication is a
matter of national law and consumer perception. Geographical indications may be
used for a wide variety of agricultural products, such as, for example, "Tuscany"
for olive oil produced in a specific area of Italy (protected, for example, in
Italy by Law No. 169 of February 5, 1992), or "Roquefort" for cheese produced in
France (protected, for example, in the European Union under Regulation (EC) No.
2081/92 and in the United States under US Certification Registration Mark
No. 571.798).

INDUSTRIAL DESIGNS

ndustrial Design protection is provided for a shape, configuration, surface


pattern, colour, or line (or a combination of these), which, when applied to a
functional article, produces or increases aesthetics, and improves the visual
appearance of the design, be it a two-dimensional or a three-dimensional article.
As per Indian Law, under the Design Act of 2000, Industrial Design protection is a
type of intellectual property right that gives the exclusive right to make, sell,
and use articles that embody the protected design, to selected people only.
Protection rights are provided for a period of 10 years. They can then be renewed
once for an additional period of 5 years. Design protection provides geographical
rights, like Patents and Trademarks do. To obtain Design Protection in India, the
same has to be registered India.

PATENT

A patent is a form of intellectual property that gives its owner the legal right to
exclude others from making, using, selling and importing an invention for a limited
period of years, in exchange for publishing an enabling public disclosureof the
invention. In most countries patent rights fall under civil law and the patent
holder needs to sue someone infringing the patent in order to enforce his or her
rights. In some industries patents are an essential form of competitive advantage;
in others they are irrelevant.

The procedure for granting patents, requirements placed on the patentee, and the
extent of the exclusive rights vary widely between countries according to national
laws and international agreements. Typically, however, a patent application must
include one or more claims that define the invention. A patent may include many
claims, each of which defines a specific property right. These claims must meet
relevant patentability requirements, such as novelty, usefulness, and non-
obviousness.

Under the World Trade Organization's (WTO) TRIPS Agreement, patents should be


available in WTO member states for any invention, in all fields of technology,
provided they are new, involve an inventive step, and are capable of industrial
application.Nevertheless, there are variations on what is patentable subject
matter from country to country, also among WTO member states. TRIPS also provides
that the term of protection available should be a minimum of twenty years.

PLANT VARIETIES

The Protection of Plant Variety and Farmers Right Act, 2001 (PPVFR Act) is


an Act of the Parliament of India that was enacted to provide for the establishment
of an effective system for protection of plant varieties, the rights of farmers and
plant breeders, and to encourage the development and cultivation of new varieties
of plants. This act received the assent of the President of India on the 30 October
2001.

The PPV&FR Act, 2001 was enacted to grant intellectual property rights to plant
breeders, researchers and farmers who have developed any new or extant plant
varieties. The Intellectual Property Right granted under PPV & FR Act, 2001 is a
dual right – one is for the variety and the other is for the denomination assigned
to it by the breeder. The rights granted under this Act are heritable and
assignable and only registration of a plant variety confers the right. Essentially
Derived Varieties (EDV) can also be registered under this Act and it may be new or
extant. Farmers are entitled to save, use, sow, re-sow, exchange or sell their farm
produce including seed of a registered variety in an unbranded manner. Farmers'
varieties are eligible for registration and farmers are totally exempted from
payment of any fee in any proceedings under this Act. The period of protection for
field crops is 15 years and for trees and vines is 18 years and for notified
varieties it is 15 years from the date of notification under section 5 of Seeds
Act, 1966. Annual fee has to be paid every year for maintaining the registration
and renewal fee has to be paid for the extended period of registration. Farmers can
claim for compensation if the registered variety fails to provide expected
performance under given conditions. The rights granted under this Act are exclusive
right to produce, sell, market, distribute, import and export the variety. Civil
and criminal remedies are provided for enforcement of breeders' rights and
provisions relating to benefit sharing and compulsory licence in case registered
variety is not made available to the public at reasonable price are provided.
Compensation is also provided for village or rural communities if any registered
variety has been developed using any variety in whose evolution such village or
local community has contributed significantly. The procedural details and modes of
implementing this Act are provided in PPV&FR Rules, 2003. In the present article,
we are discussing some of the important legal provisions of this Act along with
some of the case studies.

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MODULE II

(A) NATURE AND MEANING OF COPYRIGHT

NATURE OF COPYRIGHT

Copyright is a right which subsists in a number of different kinds of works,


such as literary, dramatic, musical or artistic works, sound recording, and
cinematograph films.1 The Copyright Act, 1957 (herein referred to as “the Act”)
g erns the law relating to copyright in India. The exclusive rights are granted to
th owner ofthe copyright to do certain acts in relation to the copyright work. For
example , copying the work and use the copyright work in any other way including
issuing the work to the public, renting or lending copies of the work to the
public, performing, showing or playing the work in public, ommunicating the work to
the public Further, the right extends to broadcasting of the work and the making
available to the public of the work by electronic transmission in such a way that
member o he public may access it from a place and at a time individually chosen by
them a adaptation of the work or doing any of the above in relation to the
adaptation.

COPYRIGHT IS A CREATION OF STATUTE

Section 16 of the Act, makes it clear that there cannot be copyright which
exist in any work except as provided by the statute. There is no common law
copyright. Hence, any person shall be entitled to copyright or any similar right in
any work, whether published or not, within the provisions of the Act and none.
Copyright subsist in every original literary, dramatic or musical work or
adaptation of every original artistic work; and in every sound recording,
cinematograph film, sound and television broadcast, and published edition of a
literary, dramatic or musical work. Copyright exist whether published or
unpublished only in accordance with the provisions of the Act or any other law in
force. Ideas and opinions are not the subject matter of copyright, but only the
form in which ideas and opinions are expressed, and then only to the extent that a
substantial part ofthe form must not be plagiarised.15

COPYRIGHT IS A NEGATIVE RIGHT

Copyright law is a negative right, which prevents the copying of physical material
existing in the field ofliterature and arts. The exclusive right is a negative
right, which is a right granted to the authors by preventing others not to copy or
reproduce his work without permission. The right is granted with a view of
preventing others to avail themselves ofthe work of others unfairly. Its object is
to protect the writer and the artist from the unlawful reproduction of exploitation
of his material.This negative right also extends by preventing others without the
consent or licence of the author to exercise any other form of right attached to
copyright. For e.g. any conversion into a cinematograph or adaptation into a
musical work of any literary work needs permission to do so.

REGISTRATION NOT A PRE-REQUISITE

Copyright springs into life immediately on creation of the work. The work
is protected as soon as it is made, in writing or otherwise, on paper, canvas,
tape,disc film or other recording medium from which it is capable of being
reproduced.Unlike patents and trademarks, there are no formalities required for
copyright to subsist and no system of registration of rights. It is not necessary
to apply to any authority in order to enjoy copyright protection. Hence, the
copyright law lays a clear principle that anyone who by his or her own skill and
labour creates an original work enjoys an exclusive right to copy that work.

DEFINITION OF COPYRIGHT

Section 14 of the Act defines ‘copyright’ means an exclusive right to do or


authorise the doing of any of the works specified.Copyright is the term to
describe the bundle of rights which are granted by statute, for limited periods of
time and subject to certain exceptions, in respect of original literary, dramatic,
musical or artistic works, such as novels, plays, poems, musical compositions,
paintings, sculptures as well as of sound recordings, films broadcasts and
typographical arrangements of published editions. These are proprietary rights,
giving the owner the right to do or authorise other persons to do the acts
restricted by the copyright law.Copyright means the right to copy, specific, a
property right in an original work of authorship (including literary, musical,
dramatic,choreogphic, pictorial, graphic, sculptural, and architectural works;
motion pictures nd other audiovisual works; and sound recordings) fixed in any
tangible medium of expression giving the holder the exclusive right to reproduce
adapt, distribute perform and display the work.“Copyright is a monopoly of limited
duration, created and wholly regulated by the legislature and an author has
therefore no ther title to his published works than that given by statute.”“The
term means that the right to make copies of a given work- at first it meant simply
written work -and to stop others from making copies without one’s permission.”6

Atari Games Corp. and Tengen Inc. v Nintendo ofAmerica Inc.,quoting from opinion of
the New Kids on the Block v News Am. Publishing “The copyright holder has a
property interest in preventing others from reaping the fruits
of his labour, in preventing the authors and thinkers of the future from making use
of, or building upon, his advances.

Copyright is defined as the exclusive right to make copies, licence and


exploit a literary musical or artistic work, whether printed, audio, video, etc
works generated, such rig by law on or after the statute comes into force and are
protected for a peri oftime after his or her death.Copying means an imitation,
reproduction or trans ipt of an original; written matter intended to be reproduced
On printed form; to many copy or copies.

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(B) REGISTRATION OF COPYRIGHT IN INDIAN LAW

Copyright protects the right of the creator on his tangible work to specifically
copy or reproduce or publish the work for monetary gains or otherwise. It doesn’t
specifically require registration of the copyright. It is an exclusive legal right
given to the work creator, to reproduce or generate copies or translate or adapt
his work. It is governed by the Indian Copyright Act, 1957 (as amended in 2012) and
Copyright rules 1958 (as amended in 2013, 2016).

IMPORTANCE OF COPYRIGHT REGISTRATION:

Registering a copyright is an added advantage, which protects the ownership of the


work from any unnecessary disputes. In the event of probable copyright infringement
dispute, certificate of registration of copyright and the Register of Copyright
containing particulars of registered copyrights are considered as “admissible
evidence” in the court of law. These serve as prima facie evidence with reference
to dispute relating to ownership of copyright.

TERM OF COPYRIGHT:

A copyright shall subsist in the work from the time it is published within the
lifetime of the author until sixty years after the author dies. In Section 22 of
the Indian Copyright Act, 1957; it is mentioned as,

“Except as otherwise hereinafter provided, copyright shall subsist in any literary,


dramatic, musical or artistic work (other than a photograph) published within the
lifetime of the author until 60[sixty] years from the beginning of the calendar
year next following the year in which the author dies”.

PROCEDURE OF COPYRIGHT REGISTRATION:

Chapter X of the Indian Copyright Act,1957 and Rule 70 of Copyright Rules, 2013,
mention the following procedure about the registration of copyrights in India:

1. Application: An author or applicant can file the application for registration


of copyright, himself or via his authorized legal representative. This application
can be made by applying physically in the copyright office or through
speed/registered post; or through e-filing facility available on the official
website of Copyrights Office (copyright.gov.in). There should be one application
for one work. Each application in Form IV should be accompanied by the requisite
fee prescribed in the second schedule to the Rules. Fee ranges from 500 INR to
40,000 INR, depending on the form of work. The fee can either be in the form of
Demand Draft or Indian Postal Order favoring “Registrar of Copyright Payable at New
Delhi” or through E-payment.

Other information which needs to be provided are:

a) Name, address, the nationality of the applicant;

b) Nature of applicant’s interest in the work;

c) Title of the work;

d) Name, address, the nationality of the author of the work and if the author is
deceased, date of his death;

e) Language of the work;


f) Whether the work is published or unpublished;

i) Year and Country of first publication and Name, address, the nationality of the
publisher;

ii) Year and Countries of subsequent publications, if any, and name, address, the
nationality of subsequent publishers;

g) Name, address, the nationality of a person authorized to assign or license the


rights comprising the copyright, if any;

h) No-objection Certificate signed by the author (if different from applicant);

i) Vakalatnama or Power of attorney signed by the advocate and the party (if the
application is made by the advocate of the party);

j) Three copies of published work must be sent along with the application.

k) If the work is unpublished, two copies of the manuscripts must be sent with the
application (one copy will be duly stamped and returned and other will be
retained).

l) Application for registration of a computer programme must be filed with the


source and object code.

m) Application for registration of an artistic work used or capable of being used


in relation to goods must be filed with a statement to that effect and a no-
objection certificate from the Registrar of Trademarks.

n) Application for registration of an artistic work capable of being registered as


a design must be filed with a statement in the form of an affidavit stating that it
has not been registered under Designs Act, 2000 and has not been applied to any
article through an industrial process.

o) Application must be signed by the applicant or the advocate;

p) Applicant must provide his mobile number and email address to receive the filing
number.

2 Examination: Once the application is filed, a diary number is received. There is


a provision of a mandatory wait period of 30 days, so that “No Objection” is filed
against the claim made by the author. If some objection is filed against the
copyright claim, then it may take one more month. The Registrar of Copyrights gives
both the parties an opportunity of hearing the matter. After the decision on the
ownership or if the objection is rejected, the application goes for scrutiny. The
applicant is asked to remove any discrepancy, if found; within 30 days.

3. Registration: On further submission of documents, if the Copyright Registrar,


is completely satisfied with the completeness and correctness of the claim made in
the application, he shall enter the particulars of the copyright in the register of
copyrights and further issue a Certificate of Registration. Registration completes
when the applicant is issued with the copy of entries made in the Register of
Copyrights.

Copyright in India is recognized virtually worldwide under the “Berne Convention”


and the applicable law of its member nations. If total compliance is followed the
“certificate of copyright” is a future safeguard for the creative minds to preserve
their creativity and reap exclusive monetary benefits from it as well.
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(C) RIGHTS CONFERRED BY COPYRIGHT

The Copyright Act, 1957 provides copyright protection in India. It confers


copyright protection in the following two forms:

(A) Economic rights of the author, and

(B) Moral Rights of the author.

RIGHTS OF THE COPYRIGHT OWNER

Right of Reproduction

This is the most prominent right which is acquired after the copyright protection.
This right authorizes the person having such copyright to make copies of the
protected work in any form. In the modern context copying, a song on a Compact
Device or any sound and visual recording can be considered as a reproduction of the
content. Prior to copying the permission of the author is required unless it can be
shown that such copying is not intended to make any commercial benefits out of it.

Right to Distribute

Right to distribute is an off-shoot of the right of reproduction. The person who


owns the copyright owner may distribute his work in any manner he deems fit. The
owner is also entitled to transfer the whole or some rights in favor of any other
person while retaining others. For example, he can entitle any person to translate
his work.

Right to make Derivative Works

The copyright has the right to use his work in various ways, for instance making
adaptations or translations. One example of adaptation is making a movie based on a
novel, so here to make any derivative work the consent of the owner is mandatorily
required. In these situations, certain other rights of the owner also come into
play, like the right to integrity which protects the owner against deformation,
defacement or modification of his work in a way that it is harmful for his
reputation.

Right to Publicly Perform

The owner of the copyright has the right to publicly perform his works. Example, he
may perform dramas based on his work or may perform at concerts, etc. This also
includes the right of the owner to broadcast his work. This includes the right of
the owner to make his work accessible to the public on the internet. This empowers
the owner to decide the terms and conditions to access his work.

Right to Follow

This right is granted generally only to the authors and artists. This empowers the
authors to obtain a percentage of the subsequent sales of his work and is called
Droit de Suite or Right to Follow. The right is also available to artists on resale
of their work.

Right of Paternity

The Right of Paternity or Attribution gives the copyright owner a right to claim
authorship of the work. Under the Right of Paternity a copyright owner can claim
due credit for any of his works. Thus, if a movie is produced based on a book by an
author, and he hasn’t been given due credit in it, he can sue the makers to
acknowledge his work.

Sui Generis Rights

The ordinary copyright law often fails to protect the computer software and
databases since the essential element of creativity is not present in such
databases. Therefore, there was a need for new law to protect such software and
databases. The law of sui generis was introduced to resolve the problem of
resolving databases on the whole. A database is a compilation or arrangement of
information which may not be creative; it may still require protection from
unauthorized copying. However, this may require certain modifications such as the
making of copies has to be excluded from such copyright protection. Such database
right exists for a fifteen year period.

Private Copying

This is an exception to the reproduction rights which are attained by the owner.
According to this right, any person can make copies of the copyright protected work
if it is proved that such copying is for educational purpose and that there is no
commercial motive behind such copies being made.

Conclusion

In conclusion is maybe said that copyright law adequately protects the rights of
the copyright owners. The law has kept pace with the changing times and has
accommodated a number of new things in its ambit, including digital reproduction
and sui generis rights. India has also risen up to the challenge and updated its
copyright law from time to time.

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(D) INFRINGEMENT OF COPYRIGHT

DIRECT INFRINGEMENT: Direct infringement is a strict liability offence and guilty


intention is not essential to fix criminal liability. The requirements to establish
a case of copyright infringement under this theory are: 
(1) Ownership of a valid copyright; and 
(2) Copying or infringement of the copyrighted work by the defendant.

Thus, a person who innocently or even accidentally infringes a copyright may be


held liable under the Copyright Act of the U.S. and under the laws of various other
countries. The guilty intention of the offender can be taken into account for
determining the quantum of damages to be awarded for the alleged infringement.

CONTRIBUTORY INFRINGEMENT:

The contributory infringement pre-supposes the existence of knowledge and


participation by the alleged contributory infringer. To claim damages for
infringement of the copyright, the plaintiff has to prove: 
(1) That the defendant knew or should have known of the infringing activity; and 
(2) That the defendant induced, caused, or materially contributed to another
person's infringing activity.
VICARIOUS INFRINGEMENT:

Vicarious copyright infringement liability evolved from the principle of respondent


superior. To succeed on a claim of vicarious liability for a direct infringer's
action, a plaintiff must show that the defendant: 
(1) Had the right and ability to control the direct infringer's actions; and 
(2) Derived a direct financial benefit from the infringing activity.

Thus, vicarious liability focuses not on the knowledge and participation but on the
relationship between the direct infringer and the defendant.
Legal precedent for vicarious copyright infringement liability has developed along
two general relational lines. The first relational line involves the
employer/employee relationship, whereas the second involves the lessor / lessee
relationship.

....

A copyright owner cannot enjoy his rights unless infringement of the same is
stringently dealt with by the Courts .The approach of the Indian Judiciary in this
regard is very satisfactory.

ILLUSTRATION:

 Prakashak Puneet Prashant Prakashan v Distt.judge, Bulandshahr and Ashok Prakashan


(Regd) the Allahabad High Court held that if the petitioner publishes a book by
adding any word before or after the book 'Bal Bharati, he infringes the copyright
of the respondent.

In Hindustan Pencils Ltd v Alpna Cottage Industries the Copyright Board of Goa held
that where the similarities between the artistic works of the parties are
fundamental and substantial in material aspects, it would amount to copyright
violation and the defendant's copyright is liable to be expunged from the register
of copyright.

In Ushodaya Enterprises Ltd v T.V. Venugopal the division bench of the Andhara


Pradesh High Court held that even though the defendant has registered the carton
under the Trademark Act, that may not come to the aid of the defendant as the case
of the plaintiff is that it owns a copyright of the artistic work under the
Copyright Act and no registration is required for the same. Thus the court held
that the plaintiff was justified in alleging infringement of his artistic work.

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