PPT - FTAPCCI-converted pdf

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The Copyright Act, 1957 Amended by The Copyright Amendment Act, 2012.

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IPR at FTAPCCI 24-9-2016

A. RAM KUMAR ADVOCATE

HIGH COURT OF ANDHRA PRADESH

INTELLECTUAL PROPERTY RIGHTS & INFORMATION TECHNOLOGY

© Copyright 2016

_______________________________________________________________________________________________________________________________

“There can be no copyright in an

idea, subject-matter, theme, plots or historical or legendry facts.

Violation is confined to form

manner and arrangement of the expression of the idea by the

author of the copyrighted work” ________________________________________________________________________________________________________________________________

R.G.Anand Vs Delux Films

– AIR 1978 SC 1613

_____________________________________________________________________________________________________________________________

__

“An Artistic, literary or Musical

work is the brain child of the author and fruit of his labour and

so, considered to be his property

so highly is it prized by national and international conventions”

________________________________________________________________________________________________________________________________

Gramophone Company Vs Birende Bahadur

Pandey

– AIR 1984 SC 667

Areas of IP protection _____________________________________________________________________________________________

•Trade Marks – ™; SM ; ®

•Copyrights – ©2000

•Patents – Patent pending , Patent

4,964,971

•Confidential information, Trade Secrets

•Semiconductor Integrated Circuits layout

•Geographical Indication of goods

•Mask works - (M)

(mask works fixed in semiconductor chip

products)

IPR – Neglected area _____________________________________________________________________________________________

•Lack of knowledge of IPR

•Lack of not having a in-house IPR policy

•Lack of symbiosis between innovative

policies and inventions

•Lack of proper legal guidance

•Impression that its exercise in futility

•Costs involved towards official and other

fees

Nature _____________________________________________________________________________________________

• Copyright is in the form or expression

• CR is not in the IDEA

• Principle of fixation – Only in material form

• Protection cannot be afforded unless work

expressed in a tangible form

• Violation happens when the form is copied

not idea

• Infringement : infringer exercising rights of

CR owner

Protection and Rights _____________________________________________________________________________________________

• CR protection in India in two forms: •A. Economic rights of the author

•B. Moral Rights of the author.

• Rights of CR Owner •Right of Reproduction prominent right – author can

make copies of the protected work in any form.

•Right to Distribute – off-shoot of the right of

reproduction - owner may distribute his work in any

manner he deems fit- owner can entitle any person to

translate his work.

•Right to make Derivative Works - right to use his work

in various ways, for instance making adaptations or

translations -making a movie based on a novel -

•Right to Publicly Perform right to publicly perform his

works eg dramas.


• Rights of CR Owner •Right to Follow - granted generally only to the authors

and artists where author empowered to % in

subsequent sales of his work.

•Right of Paternity - right to claim authorship of the work

/ due credit for any of his works. Eg No credit given to

author in a movie produced from his book, he can sue.

•Sui Generis Rights – related with copyright protection

for computer software and databases.

•Private Copying – Exception - any person can make

copies of the copyright protected work if it is proved

that such copying is for educational purpose and that

there is no commercial motive behind

•Moral Right – also called right to integrity which

protects the owner against deformation, defacement

or modification of his work in a way that it is harmful for

his reputation.

Registration _____________________________________________________________________________________________

• Copyright exists from the moment the work

is created

• Registration is not required

• Owner acquires copyright

• Can enforce infringement action

• Registration has evidentiary value in a

court of law

• Certificate and entries made therein -

Serve as prima facie evidence in a court of

law – dispute relates to ownership of CR

First owner of Copyright _____________________________________________________________________________________________

• Sec 17 of CR Act – First owner is the

programmer who created it

• Proviso: IF created in the course of

programmers employment under a

contract of service, employer (in the

absence of agreement to contrary) be the

first owner of CR.

• Sec 22 CR shall subsist within life time of

programmer and 60 years after death of the

programmer

National Regime Governing IPR _____________________________________________________________________________________________

•First Act was in 1914

•The Copyright Act, 1957 - Governing law

and primary legislation

•Major amendments in 1983, 1984, 1992,

1999 and 2012

•Amended Act contains totally ____

Sections and supplemented by Rules

•Considered as the most comprehensive

legislation the world and know to cover

almost all aspects of CR protection.

International Regime Governing IPR _____________________________________________________________________________________________

•Mainly three major conventions

•1. Berne Convention – 1886

•2. WIPO Copyright Treaty 1996

•3. WIPO Performance and Phonograms Treaty 1996

•The above Conventions encompass

every other international convention on

copyrights

•Other relevant treaties could be

•1. Universal Copyright Convention

•2. Geneva Convention on protection of producers of phonograms against unauthorized

Duplication

Subject matter of CR - 1

•Literary work: Computer programmes, books, articles,

poems, tables and databases.(SEC 13 (A))

•Artistic work: Paintings, a sculpture, a drawing

(including a diagram, map, chart or plan), an

engraving or a photograph, whether or not any such

work possesses artistic quality; a work of architecture;

and any other work of artistic craftsmanship. .(SEC 13

(A))

•Musical work: means a work consisting of music and

includes any graphical notation of such work but does

not include any words or any action intended to be

sung, spoken or performed with the music. A musical

work need not be written down to enjoy Copyright

protection. Example: Written work of lyricist, composer

and rights of the singer. .(SEC 13 (A))

Subject matter of CR - 2 •Sound recording: means a recording from which

sounds may be produced regardless of the medium

on which such recording is made or the method by

which the sounds are produced. Example: Sound

recordings fixed in a CD-ROM, DVD-ROM, USB drive.

.(SEC 13 (B))

•Cinematograph film: means any work of visual

recording on any medium, produced through a

process from which a moving image may be

produced by any means and includes a sound

recording accompanying such visual recording and

"cinematograph" shall be construed as including any

work produced by any process analogous to

cinematography including video films. Example:

Movies .(SEC 13 (B))

•SECTION 13 OF CR ACT LAYS DOWN WORKS IN

WHICH CR SUBSISTS

CR does not extend to

•Any idea,

•Procedure or process

•System,

•Method of Operation

•Concept

•Principle

•Discovery

•Regardless of the form in which it is

described, explained , illustrated,

embodied


• CR protection in India in two forms: •A. Economic rights of the author

•B. Moral Rights of the author.

• Rights of CR Owner •Right of Reproduction prominent right – author can

make copies of the protected work in any form.

•Right to Distribute – off-shoot of the right of

reproduction - owner may distribute his work in any

manner he deems fit- owner can entitle any person to

translate his work.

•Right to make Derivative Works - right to use his work

in various ways, for instance making adaptations or

translations -making a movie based on a novel -

•Right to Publicly Perform right to publicly perform his

works eg dramas.


• Rights of CR Owner •Right to Follow - granted generally only to the authors

and artists where author empowered to % in

subsequent sales of his work.

•Right of Paternity - right to claim authorship of the work

/ due credit for any of his works. Eg No credit given to

author in a movie produced from his book, he can sue.

•Sui Generis Rights – related with copyright protection

for computer software and databases.

•Private Copying – Exception - any person can make

copies of the copyright protected work if it is proved

that such copying is for educational purpose and that

there is no commercial motive behind

•Moral Right – also called right to integrity which

protects the owner against deformation, defacement

or modification of his work in a way that it is harmful for

his reputation.

Term of Copyright 1

•Explanation: The 60 year period is counted from the year following the death of the

author The period of counting 60 year for this process starts from next year following the

year in which author dies. Example: if Author dies in say 2nd Nov, 1989. So, duration of

protection of 60 years period will be from 1st Jan, 1990 to 31st Dec, 2050.

•Also, in case of joint author, year count for this process will depend upon the author who

dies last. Example: Author X and Y are co-author of a work. Author X dies on 30th April

1968 and Y dies on 26th August 1998. So duration of protection of sixty years period will

start from 1st Jan, 1999.

Nature of work Term of copy right

LITERARY (Incl Computer

software)

Life time of author + 60 years

DRAMATIC Life time of author + 60 years

MUSICAL Life time of author + 60 years

PHOTOGRAPH Life time of author + 60 years

ARTISTIC Life time of author + 60 years

Term of Copyright 2.

Nature of work Term of copy right

CINEMATOGRAPH FILMS,

SOUND RECORDINGS,

POSTHUMOUS PUBLICATIONS,

WORKS OF GOVERNMENT,

WORK IN PUBLIC UNDERTAKINGS

&WORKS OF INTL ORGANIZATIONS

60 Yrs from the date of Publication

Note: Date of publication is always the

first publication of the work. Period starts

from the beginning of next year, following

the year in which film was first published.

ANONYMOUS AND PSEUDONYMOUS

IN LITERARY, DRAMATIC, ARTISTIC

AND MUSICAL WORKS

Published anonymously or

pseudonymously when identity is

not disclosed

copyright subsist until 60 years

from the beginning of the calendar

year next following year in which

the work is first published.

ANONYMOUS AND PSEUDONYMOUS

IN LITERARY, DRAMATIC, ARTISTIC

AND MUSICAL WORKS

Published anonymously or

pseudonymously when identity is

disclosed before expiry of 60 yrs

copyright subsist during life time of

author and 60 years fater the

authors death.

Copyright.gov.in

Login Page

List of Applications filed

Efiling

Four steps to filing CR Appln

Procedure for registering ©

• Application to be made in form XIV

• One application to be made for each category of work

• Every application should be signed by the author or owner of right

• Application for registration of a computer programme should be

accompanied by source code/object code

• Application should be accompanied with the official fees

• The person applying for registration shall give notice of his

application to every person who claims or has any interest in the

subject matter of the copyright

• If no objection is received within 30 days by the Registrar, the

particulars given in the application will be entered in the Register of

Copyrights.

Copyrights _____________________________________________________________________________________________

• Indian Copyright Act equipped to deal with

Software Piracy

• Computer programs protected as literary

works under Sec 2(o) and defined under Sc

2(ffc)

• Programs in Source code and object code

under Sec 2(ffc)

• Protection is invariable of form and

expression and SW requires protection

since making of it involves, time,

expenditure, thinking etc.

• Literary work includes computer programs,

tables, compilations and databases.

Infringement of Copyright _____________________________________________________________________________________________

• Sec 51 – “any person without license does anything that exclusive right to do which is conferred upon the owner of the copyright”

• Acts of infringement are Copying, communicating the SW to public, selling or renting software, secondary infringements

• Two test propounded

– Look and feel test

– Abstraction Filtration and Comparison test

Both theories ofshoot of American courts

Fair use _____________________________________________________________________________________________

Acts not amounting to infringement

• Making of copies by lawful possessor

• Adaptation

• Reverse engineering

• Decompilation

• Copying for non commercial personal use.

Remedies _____________________________________________________________________________________________

A. Civil - Under Section 55 Civil Remedies are

prescribed in the form of Injunction, Accounts

of Profits and Costs.

B. Criminal - Under Section 63 Punishment not

less than six months extending to three years

or Rs 2 Lakhs.

C. Administrative before the registrar of

Copyright –

Section 52 defines acts that are not infringement

of copyright. Very exhaustive section giving

various instances.

Thank you

[email protected]

[email protected]

Cell 9849674599

9849773816

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PPT - FTAPCCI-converted pdf