| COPYRIGHT PROTECTION IN MEDIA |
| CRITICAL STUDY ON THE RIGHTS & REMEDIES AVAILABLE UNDER THE COPYRIGHT ACT, 1957 |
| By |
| SREERENGAN V.R. |
| Asst. Professor Ramaiah Institute of Management Studies MSR Nagar, Banaglore - 54 |
| e-mail sreerengan@hotmail.com |
PREFACE
The term Intellectual property came into existence when Copyright and Confidential information added to the Industrial Property. Originally Patents, Industrial designs and Trademarks were included in Industrial Property. The intellectual property is recognized as important tool for economic growth. The economic capability of the skill of an author or creator is protected by an Act passed by the legislators in order to promote innovative ideas and attract people towards new creations.
To convey the views to others, creator may choose different media as per his skill. He may express his opinions by writing poems, stories, novels or by making paintings, caricature or by creating a movie. Digital and cinematographic are the medium which cover and reaches very fast to the large, hence participation and development in media are increasing immensely. The technological advantage and development in the media gives easy access to the hackers in equal speed. This warrants the protection of the ideas of the creators and usage of technology. The right and interests of the originator has to be protected from pirating the same by others and such safe guard assures the ownership of the creator in his work. This study is intended to understand the different protections given to the creators of media generated ideas and creative works.
Intellectual Property Rights and the legal enactments especially in the area of copyright will be the main area of this study. The study envisages the legal provisions which provides and protection and remedies available against the infringements. Study will cover the topics on copy rights presented in the international covenants.
In order to secure copyright protection what is required is that the author must have bestowed upon the work sufficient judgment, skill and labour or capital. For such creator will be provided with a conclusive work which will visualize the entire legal provisions especially for the protection of his work in media.
INTRODUCTION
Properties can be broadly classified into Movable, Immovable and Intellectual property. Transfer of rights in immovable and movable properties is dealt with Transfer of Properties Act and Sales of Goods Act respectively. The creative intelligence of man is displayed in multiform ways of aesthetic expression. To provide price for research and intellectual brains, the law protects the creative ideas by providing certain rights to masters. Such laws are commonly called as Intellectual Property Rights. There is no separate law so called IPR but it is a combination of different laws which protect rights of intellectual brains. The term intellectual property covers patents, industrial designs, copy rights, trade marks, know-how and confidential information.
A patent is a monopoly right granted to a person who has invented a new and useful article or an improvement of an existing right to new process of making an article and such rights are conferred to the inventor by Patent Act 1970. Essential ingredients of patent are Novelty, Inventive step, Lack of obviousness, Sufficiency of description.
The object of design registration is to see that the originator of a profitable design is not deprived of his reward by others applying it to their goods without permission. Copyright in an industrial design or product design is governed by the Designs Act 1911. This right is monopoly right more akin to the right given under the Patent Acts.
A trade mark is a visual symbol in the form of word, a device, or a label applied to articles of commerce with a view to indicate to the purchasing public that they are the goods manufactured or otherwise dealt in by particular person as distinguished from similar goods manufacture or dealt in by other person. Object of trade mark law is to deal with the precise nature of the rights which is a person can acquire in respect of trade marks, the mode of acquisition of such rights, the method of transfer of those rights to others, the precise nature of infringement of such rights and the remedies available in respect thereof. Such protection is given by Trade & Merchandise Marks Act 1958.
Copyright means the exclusive right to do or authorise others to do certain acts in relation to literary, dramatic, musical and artistic works, cinematograph film, sound recordings. Copyright is the right to copy or reproduce the work in which copyright subsist. Copyright does not extend to any right beyond the scope of Section 14 of the Copyright Act of 1957. The objective of copy right law is to encourage authors, composers, artists and designer to create original works by rewarding them with the exclusive right for a limited period to exploit the work for monetary gain. The author must have bestowed upon the work sufficient judgment, skill and labour or capital. It is immaterial whether the work is wise or foolish, accurate or inaccurate or whether it has or has not any literary or artistic merit[1]. Recent scientific research on creativity shows that creativity emerges from the interaction of three entities viz. the individual, the domain and the field[2].
MEDIA & ELECTRONIC MEDIA
Visual Art is a visual object or experience consciously created through an expression of skill or imagination. The term art encompasses diverse media such as painting, sculpture, printmaking, drawing, decorative arts, photography, and installation. The various visual arts exist within a continuum that ranges from purely aesthetic purposes at one end to purely utilitarian purposes at the other. The cinema industry is not based on a single theme hence existence of cinema will be there till man time. Cinema is proved as the best media to reach people at large in fastest way. The actors and the people behind the curtain are getting reorganization world vide and becoming famous in short span of time. The film makers convey some social message or idea through a story in cinema. Pictures created by artist will try to convey some message, but communication will be completed only to the people who can read and imagine the idea or concept. Whereas, motion pictures will take the attention of the viewers in correct direction so that the message is conveyed correctly. Although cinema was increasingly dominated by special-effects films such as Terminator 2: Judgment Day (1991), Jurassic Park (1993) and Titanic (1997) had significant commercial success both at the cinema and on home video. Here technology development and new idea generation clubbed together and the combination of the same gave and entertainment and excitement for the people.
Animated films regained popularity, with Disney's Beauty and the Beast (1991), Aladdin (1992), and The Lion King (1994). The first feature length computer-animated feature, Toy Story, was produced by Pixar Animation Studios and released by Disney in 1995. Digital era started in the late 1990s which replaced the VHS tapes to DVDs. India is the world's largest producer of films and become global enterprises. Cinema in India is produced in 24 different languages and it is made available across the world by cinematographic films or by DVD.
Multimedia is any combination of text, graphic art, sound, animation, and video delivered by computer or other electronic means. It will have interactive environment and low cost in production. It is produced totally by computer animated software and it is customized as per the use and user requirements. As per the specialty of multimedia touch screen, voice command, video capture of the user or live participation can be made possible.
Without having the entire infrastructure of film industry the films can be produced by regular people by DV cameras and multimedia. Animated graphics or video captured by a camera or combination of both can create a film or animated graphics. Such movie can be produced in low cost and distributed through CD-ROMs or through web. It can be reproduced in live theater or in web video players like MPEG, Qicktime or Shock wave. DV cameras are replacing the traditional high resolution movie cameras in the film industry. Advantages of the DV cameras are portability, no wastage of costly film, maintainability, reduction of big cranes and trolley, fewer requirements of manpower to operate, and higher resolution even in the low lights.
3D movies also found their place in Indian cinema when it was introduced in Malayalam Movie “My Dear Kuttichathan” in 1984 and “Bodyguards” in the same year in English. After James Cameron's “Avatar” became the highest-grossing film of all time, many other films have followed the 3D.
Graphic communication is made through visual images and written message which are conveyed through a layout. Images attract the attention of the viewers and text provides the additional information. Visual graphics took the challenges in the competitive environment of advertisement. Within short span of time, information regarding product, company and advantages are placed in the memory of the viewers in advertisement. Advancement of technology and creative minds are clubbed together in such type of creations.
COPYRIGHT - AN EXCLUSIVE RIGHT
The word copyright derives from the expression copy of words. Copyright means the exclusive right to do or authorise others to do certain acts in relation to literary, dramatic, musical and artistic work; cinematograph films and sound recordings. It is an exclusive right to dispose of sell and commercially exploit an intellectual work by means of printing, lithography, graphic production, copying, moulds, casts, photography, cinematograph film, gramophone record, rolls for mechanical instrument, concerts, oral delivery, recitation, theatrical representation, translation, adaptation, performance, broadcast transmission, or any other form of reproduction, multiplication of copies or dissemination[3].
INTERNATIONAL COVENANTS
Berne Convention is considered as the first international convention on copyright. This convention is known as Convention on International Union for the protection of Literary and Artistic works and it was signed on 09th September 1886. The member states of Berne Union agreed upon to provide standard protection and any work first published in a convention country should enjoy international protection on all member States. The said agreement was modified in Paris convention in the year 1896 further in Berlin convention on 1908 and in Rome convention in the year 1928. A landmark convention held in the year 1948 at Brussels made certain revisions on Rome convention. To provide mutual protection between Berne union and Pan American countries UNESCO conducted a convention in the year 1952 at Geneva commonly known as Universal Copyright Convention. As per the provisos of Brussels Copyright convention a Copyright Act was enacted in the year 1956 in England and after a year later the Act was enacted in India. An Amendment Act was enacted in the year 1983 on Indian Copyright Act of 1957 as per the provisions of revised convention of Geneva Convention held in 1971 at Paris. The revised convention held in Paris provided the additional facilities to developing countries by providing compulsory licenses at a reasonable price for translation and reproduction of works of foreign origin which will be used for Teaching, systematic Instructional purposes or for Research.
COPYRIGHT IN INDIA
A new Copyright Act was passed in 1957, replacing the Copyright Act, 1911, in its application to India and the Indian Copyright Act, 1914. The requirement of this legislation was discussed by Krishna Iyer J as “The creative intelligence of man is displayed in multiform ways of aesthetic expression but it often happens that economic system so operate that the priceless divinity which we call artistic or literary creativity in man is exploited and masters, whose works are invaluable are victims of piffling payments. World opinion in defense of human right to intellectual property calculated to protect works of art. India responded to this universal need by enacting the Copyright Act, 1957[4]”
The basic difference of Patent and Copyright is that the Patent protect the new ideas but copyright deal with the particular expression of the ideas. This was expressed by the apex court as “The laws of copyright do not protect ideas, but they deal with the particular expression of the ideas. The protection of ideas falls not within the laws as to copyright, but within the patent laws. Unlike the owner of a copyright, a patentee has the sole right to use his invention within certain limits, and if anybody uses that patent, although he has made independent investigations, he infringes the patent. But in case of copyright that is not so, it was always possible to arrive at the same result from the independent sources and the fact that the defendant produces something like the plaintiffs earlier work does not necessarily create infringement. It must be shown that the defendant has derived his work from plaintiff[5]”
OBJECT OF COPYRIGHT ACT OF 1957
This Act encourages the creative minds by rewarding an exclusive right to exploit the work for monetary gains for a limited period. It also gives protection to the creator from infringements. The main object of the Copy right Act is to give protection to the owner of the copyright from dishonest manufactures who try to create any impression or confusion in the minds if the purchasing public to believe that infringed products (such as those of the defendants) are actually of the owner of the copyright (in this case of the plaintiff). The statutory provisions are meant to discourage dishonest manufacturers from trading and /or cashing upon the goodwill and protecting the reputation of the owner of the copyrights such as that of the plaintiff company who had earned the same over a period of time, inter alia by incurring huge expenses on advertisement and extensive sales etc. The unjust enrichment or illegal profits by the infringing party (defendants), is a mischief from which the owner of the copyright is to be protected in terms of Section 55 of the Copyright Act[6].
MEDIA IN ACT
Enactment of Copyright Act gave protection to the photographs, cinematograph film from unauthorized reproduction and broadcasting (broadcast means communication to the public by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or by wire, and includes a re-broadcast). As per the Act author means in relation to a photograph, the person taking the photograph and in relation to a cinematograph film or sound recording the producer[7]. Copyright is given to Photographs (which includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film), Musical work (means any combination of melody and harmony or either of them, printed, reduced to writing or otherwise graphically produced or reproduced)and Cinematograph film (means any work of visual recording on any medium produced through a process from which moving image may be produced by any means and includes a sound recording accompanying such visual recording and cinematograph shall be constructed as including any work produced by any process analogues to cinematography including video films).
Without obtaining an assignment from the owners of a cinematographic film if a copy is made on any medium by any means can be declared as infringing copy. Such a copy of video film is watched by a large section of the public in privacy of its home is a breach of copyright and it comes under the illegal broadcast.
MEANING OF COPYRIGHT IN MEDIA
A producer of a cinematograph film can provide license to any person or a company and such license will be an exclusive right to do or authorise to make a copy of the film, to cause the film, in so far as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public, to make any record embodying the recording in any part of the sound track associated with the film by utilising such sound track, to communicate the film by broadcast, in the case of a record, to do or authorise to make any other record embodying the same recording, to cause the recording embodied in the record to be heard in public , to communicate the recording embodied in the record by broadcast. It means right is given to the owner to make a copy of the film including a photograph of any image forming part or to sell or ret any copy of the film or to broadcast to the public. If the owner assigns such right to other person by providing license he will also have the same right what was exercised by the owner. (In the case of cinematographic film owner is the producer).
ELIGIBILITY FOR COPYRIGHT PROTECTION
Normally cinematograph films are based on some short story or novel or poem. To qualify copyright the work should be original and it should be first published in India. Otherwise if it is published in foreign country but the creator or author is a citizen if India either during publication or at the time of his death. But a separate copyright will not affect if the original work on which the film is based is having copyright.
ASSIGNMENT OF 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. In the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.
A complete assignment will be made by assigning for the complete term of copyright (including any future extensions) through out India and abroad the sole and exclusive right wholly and generally without any conditions or limitations for the whole term of the copyright: To reproduce, publish, issue copies and sale of the Work in any form; To communicate to the public, or adapt the Work in any form by themselves or to license it to others; To make cinematograph film or sound record of the Work and use the title for the film, sound records, any interactive media or other dramatic versions by themselves or to license it to others; and To make necessary editorial alterations and additions including removal of any prohibited or objectionable materials to make the Work publishable.
Assignment of copyright has to be made in writing and duly signed by the assignor or his authorized agent it becomes a contract[8]. Compulsory licence will be given by the Copyright board after giving reasonable opportunity, if owner has refused to allow communication to the public by broadcast of such work or in the case of a record the work recorded in such record, on terms which the complainant considers reasonable.
TERM OF COPYRIGHT
In the case of a cinematograph film, copyright shall subsist until SIXTY YEARS from the beginning of the calendar year following the year in which the film is published. Earlier it was 50 years but as per the Copyright (Amendment) Act, 1992 the fifty years is replaced by Sixty years. This came into effect from 28th December 1991.
In case of sound recording copyright shall subsist until SIXTY YEARS from the beginning of the calendar year next following the year in which the sound recoding is published.
INFRINGEMENT OF COPYRIGHT
A creative work in media is protected from infringement. Under certain conditions it is deemed to be infringement when any person, without a license granted by the owner of the Copyright or the Registrar of Copyrights does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or permits for profit any place to be used for the Performance of the work in public where such performance constitutes an infringement of the copyright in the work unless he was not aware and had no reasonable ground for believing that such performance would be an infringement of copyright, or when any person- makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or by way of trade exhibits in public, or imports into India, any infringing copies of the work.
To show that there is a substantial copying it should be calculated how much of the material is copied and by that how much labour the person saves. While investigating the infringement, the quality to be considered rather than quantity of copying. If a substantial part of the cinematograph film is an infringement of the copyright in nay other work then copyright shall not subsist for the entire film.
REMEDIES AVAILABLE FOR THE OWNER OF THE COPYRIGHT AGAINST INFRINGEMENT
Three types of remedies available for the infringement of copyright.
(a) Civil remedies
(b) Criminal remedies
(c) Other remedies
Civil remedies
(i) Temporary and permanent injunctions
(ii) Permanent and Interlocutory Injunction
(iii) Delivery up of infringing copies
(iv) Damages
(v) Accounts for profit
(vi) Suit for declaration[9]
(vii) Impounding and destruction of all infringing copies, including masters
(viii) Actual monetary damages plus the infringor's profits
Criminal remedies
(i) Imprisonment or fine or both
(ii) Seizure and delivery of infringing copies
Other remedies
(i) To ban import of infringing copies by Registrar of the copyright.
Jurisdiction on civil remedies vested with District Court or High Court within whose jurisdiction of the plaintiff resides or carry on business. The period of limitation is 03 years from the date of infringement. In the criminal proceedings the offence of infringement of copyright is punishable with imprisonment which may extend from six months to the maximum of three years and with a fine of fifty thousand to two lakhs. A police officer of the rank of Sub inspector and above is given poser for investigation and seize with out warrant all infringing copies a Court of Judicial First Class Magistrate is having the power to trial the offence. Where any offence committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for, the conduct of the business of the company, as well as the company shall be deemed to be guilty of such offence and shall be liable to be proceeded against and punished accordingly. If a petition is filed before the Registrar of the Copyright and Copyright board shall have the powers of a Civil Court when trying a suit under the Code of Civil Procedure.
EPILOGUE
Man is curious to know about what is happening around him. That was the base of the development of a social science – Journalism. Print media had monopoly for decades in information and communication. Many philosophers proved that pen is the powerful than bullet. Technology replaced pen with electronic gadgets. Availability of new devices and facilities made man to think in new directions. This thinking exploited the possibilities of developments. New creative ideas communicated to the public in a greater speed by usage of latest media tools. Media is the area of expression for the new idea. Idea is protected by Patent and the way of expression is protected by the Copyright. The copyright law has been amended periodically to keep pace with changing requirements. The amendment to the copyright law, which came into force in May 1995, brought the changes in order provide certain protection in the areas of satellite broadcasting, computer software and digital technology due to new developments. Law is dynamic in nature and changes are made in law to adopt the advancement of technology and help the mankind.
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[1] Walter v. Lane 1900 AC 539
[2] Researchers of creativity in USA include Professors Mihaly Csikszentmihalyi, Robert J, Sternberg, Dea Keith, Simonton, Howard Gardner and Keith Sawyer
[3] Art. 1 of the Copyrights Act 1925 of Chile
[4] Indian performing Right Society Ltd. V. Eastern Indian Motion Picture association A.I.R. 1977 S.C. 1443 at p. 1452
[5] Per Ganga Nath J. In Gopal das v. Jagannath Prasad, A.I.R. 1938 All. 266 p. 268
[6] Hawkins cookers Ltd. Magicook Appliances co. A.I.R. 2003 Delhi 91 at p. 195
[7] Subs by the Copyright (Amendment) Act, 1994
[8] RR Vishwanathan Iyer v. A Muthukumaraswami Pillai A.I.R. 1948 Mad 139 at pp. 142, 143
[9] Everest Pictures Circuit, Salem v. Karuppannan A.I.R. 1982 Mad. At p. 246, 247
S. Dharmalinga Nayakar v. D Balasubramania Ayer A.I.R. 1937 Mad 94.
