Intellectual Property Rights or IPR are the legal rights to protect the creative, artistic or inventive works of the individual(s). One of such right is Copyright. Generally, a copyrighted work is identified with a symbol, that is, ©. Copyright is a right given by the law to 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, the 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.1
Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.1
The Copyright Act, 1957 and the Copyright Rules, 2003 governs the subject of copyright in India. The scope of the Act limits to original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. Unlike patents, copyright protects only the expressions and not the ideas. There is no copyright protection for ideas, procedures, methods of operation or mathematical concepts as such.
Copyright protection is a natural right in India. There is as such no mandatory requirement2 for registration of work to avail the protection under the act. Rather it is an automatic right, which emerges as and when infringement takes place. Therefore, it is a sui generis right. Also, in the majority of the countries, and according to the Berne Convention, copyright protection is obtained automatically without the need for registration or other formalities. Most countries nonetheless have a system in place to allow for the voluntary registration of work.
There are various limitations attached to avail the protection under the Copyright Act, 1957. These limitations may be broadly classified into three, that is, limited duration of copyright permitted uses and non-voluntary licences (statutory licence). The duration or term of copyright has been dealt with below.
Term of Copyright
Copyright is protected for a limited time. Economic rights have a time limit, which can vary according to national law. In those countries which are members of the Berne Convention, the time limit should be equal to or longer than fifty years after the creator’s death. Longer periods of protection may, however, be provided at the national level.3 For example, in Europe and the United States, the term of protection is life plus seventy years.
Under the Indian Copyright Act, 1957, Chapter V enumerates the term of copyright protection. Section 22 of the Act states the term of copyright in published literary, dramatic, musical and artistic works shall subsist, published within the lifetime of the author, until sixty years from the beginning of the calendar year following the year in which the author dies. In this section, the reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.4 This term has been increased from fifty years to sixty years by the Amendment of 1992.
However, in cases where the work falls under the category of a cinematograph film, sound recording, photograph, posthumous publications5, anonymous organisations, the sixty years period is counted from the date of publication.
Term of Copyright for Posthumous Publications
it is the publication of work after the death of its author. The term of copyright protection of a posthumous publication subsists for a period of sixty years and unlike in others, here such period is calculated from the date of publication.6 The United States Court of Appeals held in the case of Bartok v. Boosey & Hawkes7that, “A “posthumous work” under section 24 of the Copyright Act is a work on which the right to copyright has passed by will or intestacy due to the absence of an effective assignment by the author during his lifetime.”
Term of Copyright for Anonymous Publication
If the publication of the work anonymously, that is, publication when the author of such work is unknown. The copyright term of an anonymous publication, as provided under Section 23 of the Copyright Act, 1957, is also for a period of sixty years, calculated from the beginning of the calendar year next following the year in which the work is first published. The section also provides for the disclosure of the identity of the author. In its proviso, it is provided that where the identity of the author is disclosed before the expiry of the said period, the copyright exists for a period of sixty years, calculated from the beginning of the calendar year next following the year in which the work is first published.8 The explanation clause to Section 23 of the Copyright Act, 1957 enumerates about the position of the author, that is, here the identity of an author shall be deemed to have been disclosed. The identity may be disclosed either publicly by both the author and the publisher or is otherwise established to the satisfaction of the Appellate Board by that author.
Term of Copyright for Photographs
While Section 22 contains terms of copyright for all other works, the term for photographs has been set out separately in Section 25 of the Act. This is in consonance with the Berne convention, which also arrays separate terms for photographs and other works under Article 7.4 and Article 7.1 of the Berne Convention (Paris text) respectively. The Indian Copyright Act provides for copyright in a photograph for a period of 60 years from the beginning of the calendar year, following the year in which the photograph is published. But this Section has been omitted by the amendment of 2012.
Term of Copyright for Cinematograph Films
Copyright of Cinematograph Films9 shall subsist until sixty years from the beginning of the calendar year next following the year in which the film is published.
Term of Copyright for Sound Recordings
Copyright of sound recordings10 shall subsist until sixty years from the beginning of the calendar year following the year in which the sound recording is published.
Term of Copyright of government works
In the case of a Government work, where Government is the first owner of the copyright therein, copyright subsists until sixty years from the beginning of the calendar year next following the year in which the work is first published.11
Term of Copyright where a public undertaking is the first owner
In the case of a work, where a public undertaking is the first owner of the copyright therein, copyright subsists until sixty years from the beginning of the calendar year next following the year in which the work is first published.12
Term of Copyright of work of an international organisation
In the case of a work of an international organisation to which the provisions of section 41 apply, copyright subsists until sixty years from the beginning of the calendar year next following the year in which the work is first published.13
An author’s moral right as a right against distortion is available even after the expiry of the term of copyright.
Conclusion
Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. There is as such no mandatory requirement for registration of a work to avail the protection under the act. Rather it is an automatic right, which emerges as and when infringement takes place. Copyright is protected for a limited time. The Berne Convention specifies the limit or the term of copyright as not less than sixty years. And on its line, the Indian Copyright Act, 1957 provides for the protection for sixty years. Keeping in mind the provisions of the act and the rules framed therewith, an author’s moral right as a right against distortion is available even after the expiry of the term of copyright.
Endnotes
1. http://copyright.gov.in/frmFAQ.aspx
2. R G Anand’s Case, AIR 1978 SC 1613
3. https://www.wipo.int/copyright/en/faq_copyright.html
4. Explanation to Section 22 of the Copyright Act, 1957
5. Section 23 of the Copyright Act, 1957
6. Section 23 of the Copyright Act, 1957
7. http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1534&context=bclr
8. Proviso to Section 23 of the Copyright Act, 1957
9. Section 26 of the Copyright Act, 1957
10. Section 27 of the Copyright Act, 1957
11. Section 28 of the Copyright Act, 1957
12. Section 28A of the Copyright Act, 1957
13. Section 29 of the Copyright Act, 1957
Tanvi Sapra
AuthorsTanvi hails from Vivekananda Institute of Professional Studies and spends most of her time reading and researching. Her Interest areas are Property Law, Human Rights Law and Constitutional Law. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com
