The Hindu Business Line : It is not right to copy

The copyright law in essence is designed to prevent copying of existing physical material in literature and art. The objective is to protect the writer or artist from the unlawful reproduction of his material. The law does not permit one man to make a profit and to appropriate to himself that which has been produced by the labour, skill and capital of another.

COPYRIGHT is a legal right given to creators of literary, dramatic, musical and artistic works, and producers of cinematograph films and sound recordings. In fact, it is a collection of rights that includes 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 nature of the work.

Copyright subsists in all original, published or unpublished literary works. Literary work includes computer programmes, tables and compilations including computer databases in any tangible form. One would, therefore, have to do nothing but to record the programme on a tangible medium to get copyright protection.

Copyright protection is automatic from the moment the work is recorded in some medium like a ROM, magnetic tape, diskette or paper. As per Indian law, one does not necessarily have to register with the copyright office to get copyright protection.

However, registration of any program is a good idea. It is helpful in an infringement suit. As per the Copyright Act, the registers of copyrights is prima facie evidence of the particulars entered in it, and documents purporting to be copies of any entries therein, or extracts there from certified by the Registrar of Copyrights and sealed by the copyright office shall be admissible as evidence in all courts without proof or production of the original.

When a copyright owner publishes a work, a notice of copyright may be placed on publicly distributed copies. As per the Berne Convention for protection of literary and artistic works, to which India is a signatory, use of copyright is optional. However, it is a good idea to incorporate a copyright notice.

A copyright notice consists of the symbol c (the letter c in a circle) or the word `Copyright', the year of first publication, and the copyright owner's name.

India has one of the most modern copyright protection laws. A major development in the area of copyright was the 1999 amendment to the Copyright Act 1957, that made it compatible with the provisions of TRIPS (Trade Related-aspects of Intellectual Property rights). Called the Copyright (Amendment) Act, 1999, it came into force on January 15, 2000. The earlier, 1994, amendment to the Copyright Act of 1957 had provided protection to all original literary, dramatic, musical and artistic works, cinematography, films and sound recordings.

It is also brought sectors such as satellite broadcasting, computer software and digital technology under copyright protection. The Copyright Act fully conforms with the TRIPS obligations.

The other important development was the issue of the International Copyright Order, 1999 that extended the provisions of the Copyright Act to nationals of member countries of the World Trade Organisation.

The Copyright Act, 1957 prescribes mandatory punishment for piracy of copyrighted matter in compliance with TRIPS. Section 63 of the Act provides that infringement of copyright or other rights conferred by the Act shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years, and with fine which shall not be less than Rs 50,000 but which may extend to Rs 2 lakh.

Section 63A provides for enhanced penalty on second or subsequent convictions of imprisonment for a term which shall not be less than one year but which may extend to three years, and with fine which shall not be less than Rs 1 lakh and which may extend up to Rs 2 lakh.

Section 63B provides that any person who knowingly uses, on computer, an infringing copy of a computer program shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years, and with fine which shall not be less than Rs 50,000 but which may extend to Rs 2 lakh.

As regards the requirement that actual knowledge be proved in criminal cases, the expressions "knowingly infringes or abets infringement" in Section 63, and "knowingly makes use" in Section 63B are included to protect bona fide users. It may be noted that the word "knowingly" was included even in the analogous Section 7 of the Indian Copyright Act, 1914.

The principle of ignoratia juris reminem excusat (ignorance of the law is no excuse) may not be appropriate in copyright as there are a large number of works that are in the public domain that can be used freely, and are presumed to be outside the copyright regime.

Copyright is a special legal right to protect authors while ensuring the interest of society. It is too much to expect an ordinary user to sit in judgement like a court of law on every single aspect of the Act, which may or may not be applicable to a work, before using the same.

So far as Article 41 and Article 61 of TRIPS are concerned, India has a modern and efficient judicial system that is in compliance of the general obligations of Article 41. According to Article 61 of TRIPS remedies available shall include imprisonment or monetary fines sufficient to provide deterrence in consistency with the level of penalties to a crime of corresponding gravity.

The Indian Copyright Act provides for both imprisonment and fine, which in the Indian context would be a sufficient deterrent. Further, provisional measures, such as injunctions and `Anton Piller' orders (in British and British-derived legal systems, an Anton Piller order is a court order which provides for the right to search premises without prior warning.

This is used order to prevent the destruction of incriminating evidence, particularly in cases of alleged copyright infringement), are available through the Indian courts to stop infringement and to contain any damages. Both foreign and domestic IPR (intellectual property rights) holders are treated equally under Indian law.

For collective administration, copyright societies have been set up for different classes of work. At present there are three registered copyright societies — the Society for Copyright Regulations of Indian Producers of Films and Television (SCRIPT) for cinematography films, the Indian Performing Rights Society Limited (IPRS) for musical works, and the Phonographic Performance Limited (PPL) for sound recordings.

These societies, particularly the PPL and the IPRS, have been active in anti-piracy work. The PPL has even set up a special anti-piracy cell headed by a retired Director General of Police and it has been working in tandem with the police.

Consequent to measures initiated by the government, there has been greater enforcement of copyright laws in the country during the last year compared to previous years.

Copyrights do not protect ideas, but expression of ideas. The protection of ideas falls within the purview of 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, even if he or she has made independent investigations, it is considered infringement. But that is not so in the case of copyrights.

It is always possible to arrive at the same result from independent sources, and the fact that the defendant produces something like the plaintiff's earlier work does not necessarily create an infringement. It must be proved that the defendant derived his work from the plaintiff's.

The copyright law in essence is designed to prevent copying of existing physical material in literature and art.

The objective is to protect the writer and artist from the unlawful reproduction of his material. It is concerned only with the copying of physical material and not with the reproduction of ideas, nor does it give monopoly to any particular form of words.

The law does not permit one man to make a profit and to appropriate to himself that which has been produced by, the labour, skill, and capital of another.

(The author, an intellectual property lawyer, is partner and co-chair of Intellectual Property Practice, Kochhar & Co., advocates and legal consultants. He can be contacted at ramasarma@chennai.kochhar.com)

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