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Unni
Public Policy & Management Group
Indian Institute of Management Calcutta
E-mail: unniv@iimcal.ac.in
Copyright being a negative right, grants the copyright owner the right to
prevent another person from
1.
Making copies of his copyrighted work in any material form
2. Distributing the copies not being copies already in circulation;
3.
Performing the work in public/ showing/communicating to the
public (through broadcasting / Internet etc)
4.
Making an adaptation of the work (adaptation means translation,
converting a story into drama format etc)
5.
Making a cinematographic film/sound recording from that work
6.
In the case of Computer Programs, Films and sound recording the
owners have the right of commercial rental also
Literary Work
Literary work is any work, other than a dramatic or musical work,
which is written, spoken, or sung,
It certainly includes works like time-tables, compilations, databases,
football coupons, question papers, computer programs etc
Thus in the case of a song the lyrics will be considered as a literary
work
Literary refers to the nature of the work, that is, one in which the
expression is conveyed by means of words/ symbols
Dramatic Work
Generally a dramatic work, means a work of dance, drama or mime
It is a work of action, with or without words or music, which is
capable of being performed before an audience
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Under the Indian definition dramatic work" includes any piece for
recitation, choreographic work or entertainment in dumb show, the
scenic arrangement or acting form that is fixed in writing or
otherwise
Musical Works
It consists of the music notations and excludes any words or action
intended to be sung or spoken
The definition of a musical work clarifies that it does not include
words intended to be sung or spoken with the music or action
intended to be performed with the music
A dramatic work may include music: then music will be entitled to a
separate copyright, notwithstanding that the music also forms an
integral part of the dramatic work
Artistic Works
It includes paintings, drawings, diagrams, charts, plans, photos,
maps, engravings, sculptures etc irrespective or artistic quality
Works of architecture like buildings
Works of artistic craftsmanship e.g. specially designed jewellery,
designer furniture etc
Sound recordings
They are entrepreneurial works and are based on an original literary,
dramatic or musical work
The definition of sound recording covers a recording where there is
no underlying work, such as a recording of people talking, howling
or of other sounds such as the sounds of wildlife.
Thus it only protects recording of the sound and not the sound per se
Cinematographic films
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Author has the moral right, while owner has the economic
right to exploit the work (like the right to prevent others from
making copies, distributing it, broadcasting , making
adaptations etc)
Sometimes author of the work will be the owner also, but
there are umpteen instances wherein the owner of the work is
different from its author
Generally ownership flows from authorship
Generally the author is considered to be the first owner of the
work
But there is an exception in the case of works made in the
course of employment
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The copyright owner may decide the manner in which a work has to be
exploited
He may grant licenses for publishing his work to one company and may
grant licenses for adapting the work to some body else
Instead of going for a license, he may assign his copyright of the work to
another party
Thus the owner of the copyright has the exclusive right to do certain things
and in case anybody does any of these acts without his consent,
infringement will result
Who is an author ?
In the case of a story , novel or a drama the person who writes / creates it
The music composer in the case of a musical work
An artist in the case of a painting, sculpture etc, a photographer in the case
of a snap
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Integrity right
This right is otherwise called as the right to object to derogatory
treatment of the work
Thus the author of a literary/dramatic/ musical/artistic work has the
right to oppose any derogatory treatment of the work
Derogatory treatment means any act which amounts to distortion or
mutilation of the work or is otherwise prejudicial to the
honour/reputation of the author
After the 2012 Amendment India recognises a perpetual integrity
right which means that it will extend even after the expiration of
copyright
Thus in India moral rights exist in perpetuity
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Primary infringement
Secondary infringement
Primary infringement deals with the real act of copying, while
secondary infringement deals with other kinds of dealing like selling
the pirated books, importing etc
In any action for infringement the copyright holder has to show the
following,
He/she is the owner of the work
The person against whom the case is filed (defendant) has carried
out any of the activities falling within the copyright holders domain
The defendants work was derived from the copyright work
Defendant has copied the whole or substantial portion of the
plaintiffs work
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Upon sued for infringement the defendant may rely upon certain
defences
Here the law provides certain exceptions, one such exception is fair
dealing
Fair dealing provisions allow copying which would otherwise be an
infringement
In many cases the amount of original work used is very relevant
It may be fair-dealing to include 5-10% of another work for the
purpose of criticism or review
But taking the whole work may not be fair-dealing
In almost all common wealth legal systems there are provisions which
deal with fair dealing
For the purpose of research/private study
Criticism/review
Current events
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Indian Position
In India Sec 52 of Copyright Act deals with defences to
infringement,
The Indian Law allows the following
a fair dealing with a literary (except a computer
program), dramatic, musical or artistic work for the
purposes of private use, including research
criticism or review, whether of that work or of any other
work*
Fair dealing for the purpose of reporting current events
in a newspaper, magazine or similar periodical*
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In July 2012 the Copyright Act was amended and this will have
some implications on the entertainment industry
Generally a cinematograph film contains literary works such as the
script and lyrics, musical works songs background score, artistic
works such as the sets, graphics etc.,
Apart from this it will also contain performances by actors, singers,
dancers, stuntmen etc
Before the amendment the author is the first owner of copyrights in
a work unless such work is commissioned by another person or is
created under a contract of service or employment, in which cases
the employer or the person commissioning the work is the owner.
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After the amendment a new proviso has been added to provide that a
cinema production house will not own the copyrights created by its
employees/artists during the course of their employment/ engagement
Interestingly this provision does not apply to works incorporated in a
sound recording and as a result a record label like BMG Crescendo
can still own the works created by its employees or commissioned
authors
Previously the author of a literary, artistic or musical work could
assign the copyright to the producers for incorporation in a film.
Such an assignment could broadly be for both existing and future
modes of exploitation.
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This means that producers should now share the non theatrical
exploitation royalties in an equal manner with the script writers,
lyricists and composers
The author however can assign the right to receive royalty to his /her
legal heir or copyright societies
Thirdly the author of a literary or musical work included in a sound
recording shall not assign or waive the right to receive equal share of
royalties from the assignee for utilisation of such work in any form
The author however can assign the right to receive royalty to his /her
legal heir or copyright societies
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Patentability Requirements
The invention has to be novel
It should involve an inventive step, i.e. it
should be non-obvious
It should be capable of industrial application
It should not be excluded specifically by the
statute
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Novelty
Invention must be new, it must not already have
been available to the public
An invention can be new only if it does not form part
of the state of art / prior art
The prior art comprises of all matters made available
to the public before the date of the invention whether
by written, oral description, by use or in any manner
Prior publication could have occurred anywhere in
the world
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Inventive Step
There is no precise definition of the term inventive step
An invention can have inventive step if it is not obvious to a person
skilled in the art
Obviousness is always evaluated with reference to skilled worker
Generally commercial success of the invention especially when it
satisfies a long felt want can make an invention non-obvious
(inventive)
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Industrial Application
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Apart from the conditions on novelty, inventive step and industrial application
India law (Sec. 3) also excludes certain inventions from patentability like
an invention which is frivolous or which claims anything contrary to well
established natural laws;
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Though the merits of the case are yet to be decided in the Madras
High Court, the lower court (single bench) decided in favour of
Bajaj and held the patent to be valid.
The lower court was of the opinion that infringement had occurred
and hence granted an injunction and damages.
The decision was appealed by TVS before the Division Bench of
Madras High Court
The division bench overruled the lower court holding that, while the
merits of the case were yet to be decided, the balance of convenience
was in favour of TVS since it had invested large amounts in the
marketing and production of the impugned FLAME model bike.
The court asked TVS to maintain record of sales and accounts but
allowed the sale of the product (May 2009 order)
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Recently India has witnessed lot of high profile patent battles in the
pharma and non pharma sector
Top MNC pharma companies like Novartis, Roche and Bayer are
involved in many patent litigation with Indian companies like Cipla
Even in non pharma sector many companies are involved in patent
battles to protect their monopoly against rival companies
Very recently (December 2014) the Delhi High Court restrained the
Chinese mobile phone company Xiaomi from selling, advertising,
manufacturing or importing devices that infringe Ericssonss
Standard Essential Patents (SEPs)
The judge also directed the Customs officials to stop the imports
under the IPR Rules
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Trade Mark
It must be a mark capable of being represented graphically
(interestingly the term mark has been defined in the Act to include a
device, heading, label, name , signature, word, letter, numeral, shape
of goods, packaging, combination of colours etc)
It must be capable of distinguishing the goods/ services of one
company from that of others
It should be used or intended to be use in relation to goods
In 2008 Yahoo was able to register a sound mark from the Indian
Trademark Office
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If the mark is infringed the trademark owner can file a case for civil
and criminal remedies
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Apart from cybersquatting there are other emerging issues like use
of trademark as metatags by competitors, deep-linking, pop up
advertisements etc
Tata Sons v Bodacious Tatas [1999, Delhi High Court].
This case concerned the well-known Indian trade mark TATA in its
use as a domain name www.bodacious-tatas.com , as a trade mark
and as a meta-tag
The defendants had given hyperlinks to pornographic sites which
might very badly affect the companys reputation
The name TATA was also used as a meta-tag to confuse search
engines.
Thus, the moment a user queried for TATAs, the defendant's web site
would show up in the search results right at the top
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Trade Secrets: There is no special law in India to protect trade secrets mostly
it comes under the law of contract as in most of the cases there involves an
employer-employee relationship
Trade Secrets cannot be registered/published, if that happens the entire
trade secret is lost
Definition (Provided in TRIPS Agreement)
A trade secret is any information, including a formula, pattern, compilation,
program, device, method, technique, or process, that:
1.
Derives independent economic value, from not being generally known to,
and not being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use; and
2.
Is the subject of efforts that are reasonable under the circumstances to
maintain its secrecy
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Since many of the trade secrets cases that come before the courts do
involve contracts and, particularly, contracts of employment, such
cases may be treated as a breach of contract
An employer, like anyone else, is entitled to restrain unauthorized
disclosure or use of information which, in the, is confidential.
On the other hand, for public policy reasons, an employee is entitled
to use and put at the disposal of new employers all his acquired skill
and knowledge, no matter where he acquired that skill and knowledge
and whether it is secret or was so at the time he acquired it
Under Section 27 of the Indian Contract Act, a service covenant that
extended beyond the termination of the service is void.
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