Copyright is a form of intellectual property protection granted under Indian law to the creators of original works such as literary works (including computer programs, databases, and compilations), dramatic, musical, and artistic works, cinematographic films, and sound recordings.
Copyright law protects the expression of ideas rather than the ideas themselves. According to Section 13 of the Copyright Act of 1957, copyright protection is granted to literary, dramatic, musical, artistic works, cinematographic films, and sound recordings. For example, books and computer programs are considered literary works under this Act.
Copyright represents a bundle of exclusive rights given to the copyright holder, as outlined in Section 14 of the Act. These rights can only be exercised by the copyright owner or someone with a license from the owner. These rights include the right to adapt, reproduce, publish, translate, and communicate the work to the public.
Copyright protection is granted to all original literary, artistic, musical, dramatic, cinematographic, and sound recording works. A work is considered original if it has not been copied from another source. Copyright protection starts as soon as the work is created, though registration is optional. However, registration is recommended for better protection. It does not grant additional rights but serves as prima facie evidence of the work’s entry in the Copyright Register maintained by the Registrar of Copyrights.
Registering Copyright Online
As per Section 17 of the Act, the creator or author of a work is the initial copyright owner, unless the work is created by an employee during their employment, in which case the employer holds the copyright.
Registering a copyright is valuable if the holder intends to take legal action, whether civil or criminal, against an infringer. The registration process is straightforward with minimal paperwork. If the work was created by someone other than an employee, an assignment deed must be submitted along with the application.
A significant advantage of copyright protection is that it is available in many countries worldwide, even if the work is first published in India, due to India’s membership in the Berne Convention. Protection is automatically granted to works first published in India in all countries that are signatories to relevant treaties. Through the International Copyright Order, 1999, India also extends copyright protection to works first published abroad.
Indian Perspective on Copyright Protection
The Copyright Act of 1957 offers two main forms of protection in India: economic rights and moral rights of the author.
(A) Economic Rights:
Copyright applies to original works such as literary, dramatic, musical, artistic works, cinematographic films, and sound recordings. The authors of these works enjoy economic rights under Section 14 of the Act. These rights include the reproduction of the work in any form, distribution of copies to the public, performance or communication of the work to the public, and creating cinematograph films or sound recordings based on the work.
For computer programs, the author has the right to sell, hire, or offer for sale or hire any copy of the program, regardless of prior sales or hires. In the case of artistic works, the rights include reproduction in any form, including depicting a 2D work in 3D or vice versa, and incorporating the work into cinematograph films or other adaptations.
For cinematographic films, the author has the right to make copies of the film, sell or offer for hire copies, and communicate the film to the public. These rights also apply to sound recordings. Additionally, authors of paintings, sculptures, drawings, or manuscripts of literary, dramatic, or musical works are entitled to a share of the resale price of their original work if it exceeds ₹10,000.
(B) Moral Rights:
Section 57 of the Act defines two essential moral rights for authors:
- Right of Paternity: The right of an author to claim authorship of the work and prevent others from claiming authorship.
- Right of Integrity: The right to prevent any distortion, mutilation, or alterations of the work that could harm the author’s honor or reputation.
However, under the proviso to Section 57(1), the author cannot claim damages or prevent the adaptation of a computer program through reverse engineering under Section 52(1)(aa). Moreover, failure to display a work or display it in a manner that satisfies the author does not constitute an infringement of the rights under this section. The author’s legal representatives can exercise the rights granted under Section 57(1), except for the right to claim authorship.
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
- That the defendant knew or should have known of the infringing activity; and
- 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
- Had the right and ability to control the direct infringer’s actions; and
- 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.
Internet and copyright infringement theories: The advent of information technology has made it difficult to apply the traditional theories to various cyberspace entities and organizations.
The following sections of the Copyright Act, 1957 can be relied upon to address the challenges posed by information technology:
The definition of “computer” is broad, encompassing any electronic or similar device with information processing capabilities. Therefore, any device storing or containing copyrighted material cannot be used in a way that infringes on the copyright holder’s rights.
The term “computer programme” refers to a set of instructions, expressed in words, codes, schemes, or any form, including a machine-readable medium, that causes a computer to perform a specific task or achieve a particular result. Sections 13(a) and 2(o) grant copyright protection to computer programmes, and any infringement of such rights is subject to severe civil and criminal penalties.
The definition of “literary work” includes computer programmes, tables, and databases, ensuring adequate protection for computer-related copyrights under Indian law.
Given the ease with which copyrighted material can be transferred or communicated electronically, the Copyright Act specifically addresses what constitutes “communication to the public.” Any work made available for public viewing, listening, or enjoyment through electronic means—such as satellite or cable broadcasting—without distributing physical copies may still violate copyright if it reaches multiple households or locations, including hotels and hostels.
Copyright infringement occurs when a work is copied or published without the owner’s consent. According to the Act, a work is considered “published” if it is made available to the public through copies or by communication. Internet Service Providers (ISPs), Bulletin Board Service (BBS) providers, and similar entities could be held liable for copyright infringement if the circumstances warrant such liability.
The Copyright Act also establishes that copyright infringement occurs if someone performs an action that the copyright holder has exclusive rights to, without obtaining the required permission or license. This also applies to situations where a location is used for communication of the work to the public, even if the individual was unaware of the infringement.
However, the Act provides certain exemptions. For instance, making copies or adapting a computer programme by a lawful possessor for backup or interoperability purposes does not constitute infringement, provided it is done for non-commercial use and to protect the original programme.
If someone knowingly uses an infringing copy of a computer programme, they can be penalized with imprisonment ranging from seven days to three years, along with a fine between ₹50,000 and ₹2,00,000. However, if the programme is used for personal, non-commercial purposes, the court may choose not to impose imprisonment but may still levy a fine.
In summary, copyright in a computer programme can be enforced under the Copyright Act, 1957, and any unauthorized use is subject to legal action. In cases where the internet is involved, both the Copyright Act and the Information Technology Act, 2000, can be invoked to prevent such violations.
Information Technology Act, 2000 and Online Copyright Issues:
Several provisions of the Information Technology Act, 2000 are crucial in addressing the intersection of copyright protection and information technology:
Section 1(2), read with Section 75, ensures that the Act has extraterritorial jurisdiction. Therefore, if a person (including foreign nationals) violates copyright through a computer or network located in India, they can be held liable under the Act.
If a person accesses or secures access to a computer, system, or network without permission, or downloads, copies, or extracts data or information, including copyrighted content, they are liable to pay damages. The maximum compensation can reach ₹1 crore, which serves as a deterrent against copyright violations.
When determining the amount of compensation, factors such as the gain or advantage from the violation, the loss caused to the copyright holder, and the repetitive nature of the infringement are considered. Intentional, profit-driven violations will result in higher damages compared to accidental infringement.
Network service providers (ISPs) will not be held liable for third-party information or data, provided they can prove that they were unaware of the offense or had taken all necessary steps to prevent it.
Additionally, the provisions of the Information Technology Act override other laws that may conflict with its provisions, further strengthening its enforcement in the digital space.