Copyright is a form of intellectual property right, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. For example, books, computer programs are protected under the Act as literary works.
What is covered under Copyright?
As with all fields of intellectual property copyright is concerned with protecting the work of the human intellect. The domain of copyright is the protection of literary and artistic works. These include writings, music, and works of the fine arts, such as paintings and sculptures, and technology-based works such as computer programs and electronic databases.
Note that copyright protects works,that is the expression of thoughts, and not ideas. So if you imagine a plot, this, as such, is not protected. For example, a plot consisting of a story about young men and women falling in love despite family and caste obstacles would not be protected. Different writers may build stories based on a similar plot. But when you express it in a synopsis or in, say, a short story, or a play, the expression of the plot in that story will be protected. Hence, for example, Rabindra Nath Tagore’s Gitanjali would be considered as a creative expression of that plot. Still, other writers may build new stories based.
The Berne Convention (1886), which is the oldest international Convention governing copyright, states the following in its Article 2:
“The expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works, to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science. Translations, adaptations, arrangements of music and other alterations of a literary or artistic work shall be protected as original works without prejudice to the copyright in the original work. Collections of literary or artistic works such as encyclopaedias and anthologies which, by reason of the selection and arrangement of their contents, constitute intellectual creations shall be protected as such, without prejudice to the copyright in each of the works forming part of such collections.”
There is no requirement that the literary and artistic work should be good or have artistic merits. It should, however, be original. The exact meaning of this requirement varies from country to country, and it is often determined by case law. In very general terms one may say that in countries belonging to the common law tradition very little is required, other than that the work must not be a copy of another work and that the author should have displayed a minimum amount of skill, labor and judgement in making it.
In countries belonging to the civil law tradition, the requirement is often stronger, for example that the work must bear the stamp of the author’s personality. A creative effort would be required from the author that may go beyond mere skill, labor or judgement.
Are the works that can be protected under the Berne Convention restricted to the list set out in Article 2?
It should be borne in mind that works that are susceptible of being protected under the Berne Convention are not restricted to the examples quoted above. Such a list is not exhaustive. You will have noticed that the Berne Convention specifies that “the expression ‘literary and artistic works’ shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as….” The expression “such as” opens the door to creations other than the ones set out in the list. For example, court decisions, in different countries, have protected material such as:
– private letters,
– a divorce guide,
– a haircut,
– a floral decoration of a bridge,
– examination papers.
What is meant by derivative works?
Another important feature of Article 2 of the Berne Convention is that it protects what is commonly called “derivative works”. These are works that are derived from other, existing sources. Examples of derivative works include:
– translations of works into a different language;
– adaptations of works, such as making a film scenario based on a novel;
– arrangements of music, such as an orchestra version of a musical composition initially written for piano;
– other alterations of works, for example an abridgement of a novel;
– compilations of literary and artistic works, such as encyclopedias and anthologies. In such a case, the originality resides in the choice and arrangement of the materials.
One should bear in mind that, before embarking in a derivative work, you must respect the rights of the author of the initial work. For example, an author who wishes to translate a novel into a foreign language should seek proper authorization from the author of the novel that will be translated. Making the translation without proper authorization would expose the translator to the risk of being sued for copyright violation.
What sort of things can be protected by copyright laws?
Copyright protects literary and artistic works, as the title of the Berne Convention states. The two concepts need to be taken in a very broad sense. The term literary, for example, does not mean just novels, poems or short stories: it could cover the maintenance manual of a car, or even things that are written but not supposed to be understood by the average human being, such as computer programs. The key to this expression in fact is the word “works”. What we mean by that is that expression, human expression, is the determining factor. So, if I have the idea of painting “sunset over the sea”, anyone else can use the same idea, which is not protected. But when I actually produce my painting of “sunset over the sea” the painting itself is expression, and that is protected.
What are the Rights Protected by Copyright?
The most important feature of property is that the owner may use it exclusively, i.e., as she/he wishes, and that nobody else can lawfully use it without the owner’s authorization. The phrase “as she/he wishes” does not, of course, mean that they can use it regardless of the legally recognized rights and interests of other members of society. For example, the owner of a car may use it “as she wishes,” but this does not mean that she may drive her car recklessly and create danger to others, nor that she may disregard traffic regulations. Copyright is a branch of intellectual property. The owner of copyright in a protected work may use the work as he wishes, and may prevent others from using it without his authorization. Thus, the rights granted under national laws to the owner of copyright in a protected work are normally “exclusive rights”: to use the work or to authorize others to use the work, subject to the legally recognized rights and interests of others.
There are two types of rights under copyright: economic rights, which allow the owner of rights to derive financial reward from the use of his works by others, and moral rights, which allow the author to take certain actions to preserve the personal link between himself and the work.
Indian perspective on copyright protection:
The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the following two forms:
(i) Economic rights of the author, and
(ii) Moral Rights of the author.
(i) Economic Rights:
The copyright subsists in original literary, dramatic, musical and artistic works; cinematographs films and sound recordings. The authors of copyright in the aforesaid works enjoy economic rights u/s 14 of the Act. The rights are mainly, in respect of literary, dramatic and musical, other than computer program, to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the public, to perform the work in public or communicating it to the public, to make any cinematograph film or sound recording in respect of the work, and to make any translation or adaptation of the work. In the case of computer program, the author enjoys in addition to the aforesaid rights, the right to sell or give on hire, or offer for sale or hire any copy of the computer program regardless whether such copy has been sold or given on hire on earlier occasions. In the case of an artistic work, the rights available to an author include the right to reproduce the work in any material form, including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work, to communicate or issues copies of the work to the public, to include the work in any cinematograph work, and to make any adaptation of the work. In the case of cinematograph film, the author enjoys the right to make a copy of the film including a photograph of any image forming part thereof, to sell or give on hire or offer for sale or hire, any copy of the film, and to communicate the film to the public. These rights are similarly available to the author of sound recording. In addition to the aforesaid rights, the author of a painting, sculpture, drawing or of a manuscript of a literary, dramatic or musical work, if he was the first owner of the copyright, shall be entitled to have a right to share in the resale price of such original copy provided that the resale price exceeds rupees ten thousand.
(ii) Moral Rights:
Section 57 of the Act defines the two basic “moral rights” of an author. These are:
(a) Right of paternity, and
(b) Right of integrity.
The right of paternity refers to a right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work. Right of integrity empowers the author to prevent distortion, mutilation or other alterations of his work, or any other action in relation to said work, which would be prejudicial to his honour or reputation. The proviso to section 57(1) provides that the author shall not have any right to restrain or claim damages in respect of any adaptation of a computer program to which section 52 (1)(aa) applies (i.e. reverse engineering of the same). It must be noted that failure to display a work or to display it to the satisfaction of the author shall not be deemed to be an infringement of the rights conferred by this section. The legal representatives of the author may exercise the rights conferred upon an author of a work by section 57(1), other than the right to claim authorship of the work.