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    11 views17 pages

    Design Copyright Interface

    Uploaded by

    Akshit

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    © All Rights Reserved
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    of 17
    Interface of Desien BP Law Wty 6, On CHAPTER THREE BM Lae ge _ NTERFACE OF DESIGN Lay ~~ COPYRIGHT Lay WH 3.1 Meaning of Copyright ‘The basic purpose behind the idea of copyri i non-functional items”, from being ene tee unauthorised manner. In order to show copyright infringemers the plaintiff must show that the infringing item was copied fror, the original product or original source. The copyrighted artistic expression must either have no substantial practical utility (eg. a statute or a book) or be separable from the useful substrate of that artistic expression (e.g. picture on a coffee mug). 3.2 Basis of copyright law We need to understand as to why we need to have protection for copyright in the first place. The overall object of the copyright law is to protect the original literary, dramatic, musical and artistic works, cinematograph films, sound recordings, broadcasting rights and/or performers’ rights. The basic rationale behind copyright law all across the world can be traced to the violation of the Eighth Commandment which states that “Thou shalt not steal.” This postulate lies at the very heart of the fundamental idea of copyright and violation of copyright or Items which are essentially works of art, drama, literature, ¢tc- Scanned with CamScanner go + (aterface ‘of Dosigi Law constitutes the violation of the Prova ‘ {UIs obvious that when q iting ‘ 4 write sce of literature or drama, {tj ne imitation of copyright of the Copyright Act.” ist produces ple 7 wind of his great labour, energy: time and ability, In case any iy It “ore to be allowed to appropriate to himself /hersy Jabours of the copyrighted work, such an act would be bihy unjust! jable and unjust and would amount to thelt by deprivin the original owner of the copyright the right to enjoy the fruits of his/her labour. ‘There is no better manner of detecting piracy in an allege infringed work than by making a careful comparison of the alleged infringing copy with the original copy in order to see whether .s which artistic license permits in any of the deviation and mistake case of the original have been reproduced in the alleged infringing copy. These could be things like similar mistakes, common source, drama person W fy It is a well-settled proposition of law that even where the formation used in a book or drama is common and the sources are available to all, when a compilation which has been brought out as a result of the efforts put in by any one particular person, then in such a case, only (s) he can claim a copyright in the publication brought out by him/her. Several persons may originate similar works in the same general form without anyone infringing the law with regards to copyright. ‘The infringement comes in only when it can be shown that someone has, instead of utilizing the available sources to originate his work, appropriated the labours of another by restoring to a slavish copy or mere colourable imitation thereof, In cases of works composed of, or compiled, or prepared from, ete. source of in! Fateh Singh Melita ¥. O.P. Singhal and Ors, 1989 AIR Raj 8, "Dr. VIK. Ahuja, Law of Copyright and Neigh i ighbouring Rights: Nati International Perspectives (LexisNexis Butterworths, New Delhi, 2007 Pi Scanned with CamScanner = Interface of Design Law With Co Pirie aH 1 ; Js that are in the public domain, the true pring the defendant is not at liberty to a lies in which the plaintiff has been at, for hen himself ing his work, that is in fact, merely to take die of result of another man’s labour or in other words, his/her pro ‘A person relying upon the plea of common source eae that he went to the common source in question, from BEL porroweds employing his skill, labour and brains and that he do the work of a copyist by copying away from . work of another person by reproducing the work in its entire! , the permission of the original author catalise tantial thereto. without taking contributing anything subs! t le of Jaw books, where the amount Let us take the examp! of “originality” will be very small, but even that small amount js protected by law. In the case of law reports containing only approved reports of cases decided by courts, there lies a copyright. A person/ publisher js not allowed to appropriate for himself the arrangement, sequence, order, idioms, etc, that have been employed by another person, USiNB his brains, skill and labour. In order to understand the process of compilation of books, etc, let us have @ look at the decision of the Allahabad High Court in the case of Gopal Das v. Jagannath Prasad and Anr® wherein the plaintiffs had compiled their book with considerable Jabour from various sources and digested and arranged the matter taken by them from other authors. ‘The defendants, instead of \d obtain taking the pains to Jook into all the common sources ani the subject-matter from the plaintiffs, availed themselves of the labour put in by the plaintiffs and adopted their arrangement an subject-matter. It was held that such a use by the defendants of the plaintiffs book could not be regarded as legitimate. AIR 1938 All 266. Scanned with CamScanner 58 + Interface of Design Law 3.3 International Conventions Governing Copyright In addition to the statutory law on the subject, there ate ce, International conventions that govern the copyright Tegime Bh the world, These are the Berne Convention for the Protect’ of Literary and Artistic Works 1886 (last revised in 197})%6 i Universal Copyright Convention 1952 (last revised in 1971) the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations 1961, the Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms 197) the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement) 1994, the WIPO Copyright Treaty (WCT) 1996" and the WIPO Performances and Phonograms Treaty (WPPT) 1996.1 Apart from these major conventions, there are certain other internetational conventions governing the area of copyright, but these are of either local or lesser importance. ‘These include the Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite 1974" (also known as the Satellite “Text available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001. html Last visited on 22.04.2012 at 0945 hours, *http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_ TOPIC&URL_SECTION=201.html Last visited on 18.09.2015 at 1000 hours. Text available at http://www.wipo.int/treaties/en/ip/rome/summary_rome. html Last visited on 23.11.2014 at 1010 hours, ® Text available at http://www.wipo.int/treaties/en/ip/phonograms/trtdocs_. wo023.html Last visited on 17.12.2014 at 1335 hours. ‘Supra Note 60. ‘http://www.wipo.int/export/sites/ www/treaties/en/ip/wet/pdfftrtdocs_ wo033.pdf Last visited on 25.09.2014 at 0900 hours. ‘Shttp://www.wipo.int/treaties/en/ip/wppt/tridocs_wo034.html Last visited on 02.01.2015 at 1200 hours. http://portal.unesco.org/en/ev.php-URL_ID=13636&URL_DO=DO_ TOPIC&URL_SECTION=201.html Last visited on 01.04.2015 at 1000 hours. aa Scanned with CamScanner interface of Design Law With Copyrigh th Copyright Law + ¢ Law +89 jon! ¢ Buenos Aires Convention 1910! and the Treaty on vena nal Registration of Audiovisual Works 1989. ws nt rte nese © ventions, India is a member of the Berne mons ne universal Copyright Convention, the eas gow the Convention ‘or the Protection of Producers cote oe a gainst Unauthorized Duplication of ‘Their of ® and the TRIPS At reement. phonos} World intellect’ Organisation (WIPO) has been atory to the two internet treaties ja to be ome a Sig) opyright ‘Treaty (WCT) 1996 and the wIPO — a a performances and phonograms ‘Treaty (WPPT) 1996 . jon of the rights of copyright producers of pI onograms. It is notable nd the wIiPO Performances llectively termed as Internet Treaties, in 1996 under the auspices of WIPO, but India Savy Blomqvist,’ jndia has got huge film and entertainment industries. For its own ‘y to the two treaties. It on the World Wide Web not only in that country but also abroad. With increased internet penetration, web piracy is also fast gaining the world. As Indian products generate big money grounds in hese treaties would both within the country and overseas, signing t a ; rnsure that producers of creative works in India get their fair shi i are of income the products generate abroad. It will provide ee ‘othttp://en.wikipedii . edi il P ia.org/wiki/Buenos_Aires_Convention Last visited 0” peaeze at 0915 hours. sited OM *http://www.wipo.int/treaties rtdocs_w' i wipo.int/treati i id eH ies/en/ip/frt/trtdocs_wo004-htm \ "Director, C (wiro), copyright Law Divisi »). sion, World Intellectual Property’ Organisation Scanned with CamScanner 60 + Interface of Design Law an enormous boost to India’s cultural and Creative indus, ba | str The major advantage for India is that through digital _ ties, or} the country’s music, art, literature, and folklore can Teach na A Nn markets throughout the world, and be delivered directly to ban ing customers across the globe."”” 3.4 Term of protection granted to copyright Different countries across the world provide for different Standards and terms of copyright protection. The United States of Americ, is the only country in the world that provides for protection of Copyright as part of its Constitution. The United States provides for copyright protection for a period of seventy years after the lifetime of the author in the case of works that are published since the year 1978 or unpublished works." It provides for copyright protection for a period of ninety five years from the date of publication ora period of one hundred and twenty years from the date of creation, whichever is shorter, in the case of anonymous works, pseudonymous works, or works made for hire, that have been published since the year 1978." It further provides for copyright protection for a period of ninety five years from the date of publication for works published during the years 1964-1977; copyright protection for a period of twenty eight years (in case the copyright was not renewed) or for a period of ninety five years from the date of publication for works that were published during the years 1923-1963 and copyrights prior to 1923 that have expired." Other countries provide for varying lengths of protection to copyrighted works; while some follow the standards of protection laid down under the Berne Convention (2008, July 15), WIPO calls on India to sign internet treaties on copyright, ‘The Economic Times. "517 US.C. § 302(a). 117 US.C. § 302(c), "917 US.C. § 304, unre a Scanned with CamScanner Interface of Design Law With ¢, ith Copyright ah Lan «6 e the tection of Literary and Artistic Works" or A, sae-Related Aspects of Intellectual Property Rights comet a there are some other countries which are at the cee . spectrum like Marshall Island and Laos where there int ight legislation is not known an ight protection as copyti cop’ iog,13 jn these countries The position under the Indian Copyright Act, 1957 with opyright protection for different kinds der Sections 22 to 29 of the Copyright d regards d un of “work is containe ‘act, 1957+ Inthe next section of U n the areas of copy! we shall discuss the overlap Sis Chapter, design law in India. betwee right Jaw an tween Copyright and Design Law in India Let us now attempt to understand the concept of “Copyright” as defined under the Copyright Act, 1957," and in order for us to do so, it is impe first of all, take a look at some of the definitions As per Sectio! tion to a literary 0 3,5 Interplay Be as laid out w! n 2(d) of the Act, “% (i) in relat r dramatic work, the author of the work; (ii) in relation t a musical work, the compose! nigupra Note 96- u2gypra Note 60. Sip NO gcocngeutrlen oN Deb rOPICKURL_SECTION=?01- tml Last visite at 2100 hours. wtethe Copyright Act, 1957 came inte effect from J ‘Thi has been amended five times si i 1992, and 1998 vt the amendment of 1994 10 the Act of 1957, the law of copyright in the country was the Copyright Act of 1914. This rs ‘eas essentially th "ens of the British Copyright Act, p=27765KURL_ 4 on 21.06.2015 1911. Scanned with CamScanner 62 + Interface of Design Law (iii) in relation to an artistic work other than 8 Photo, the artist; Braph, (iv)in relation to a photograph, the person tak photograph; (v) in relation to a cinematograph or sound Tecording tp, producer thereof; and le (vi) in relation to any literary, dramatic, musical or Attistig work which is computer-generated, the person who Causes the work to be created. ing the In India, copyright subsists in the classes of work mentioned u/s 13 of the Copyright Act. The branch related to design law jg “artistic work” as defined u/s 2(c) of the Copyright Act, as per which “artistic work” means - (i) a painting, 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; (ii) work of architecture;!"“and (iii) any other work of artistic craftsmanship. ‘The subsistence of copyright in all these works is automatic and independent of any formalities like registration. The author'"* of the things, drawings, charts, plans or two-dimensional or three- dimensional models of designs forming a part of artistic work is the first owner of copyright, ie, the artist who created the work and in the case of a photograph, the person who took the photograph.’ Artistic copyright subsists in any work in India for ‘The definition of artistic work was amended in the year 1994 and came into effect we-f. 10.05.1995, This amendment led to the insertion of the words “work of architecture” and deletion of the words “an architectural work of art” under Section 2(c) (ii) of the Copyright Act. "For definition of “author” see Section 2(d) of the Copyright Act, 1957. ‘7Copyright Act, 1957, Section 17, see provisos (a), (b); (¢), (cc) and (d) which contain certain exceptions, a Scanned with CamScanner Interface of Desien Lay yy sa Conyrigy he life of the author ph PORN La gy a peri f th ¢ plus a period of : ars immediately following the calendar year in sae Calenda, i.e. lifeti i r jg the author occurs) ie. ao of the author in the deat thereafte in case the work was published during th Sinty Years In the case of a work of joint authorshj lifetime of the autho” , e author shall be construed as a reference to ie Teference author who The COP] right Jaw in India does not confer any ki copyright i ideas, #8 opposed to the ‘material aa men ideas. Artistic work copyright does not preclude a to vag the ideas that are underlying the artistic is qt also does not preclude anyone from creating an artistic nn by his/her © efforts as long as the other person does not blindly “0 » another copyrighted work, even in cases where such independently created work substantially resembles the copyrighted artistic work. Copyri8 an unauthorised including depiction in originally created inatwo dimensional form, form of a work that was first created ina three dimensional form.” Thus, the designs incorporated in articles or products which are available in the form of drawings or photographs and are eligible he form of designs as ‘artistic works’ cannot be reproduced in tl without infringing upon artistic copyright of the author-owner as defined wis 14 (c) (i) of the Copyright Act ht protects the artistic work from being reproduced in manner or by being copied in any material form three dimensional form of a work that was orin two dimensional 3,6 Option of Protection Under Design Law oF Copyright Law see Section 25+ ‘The 1957, Section 22. For photographs, fifty years (0 usCopyright Act, duration of copyright protection was increased from ‘Act No. 13 of 1992 (wef, 28.12.1991). Gopal Das v Jagannath Prasad and Ane. Section 14(c) (i). Ussupra Note 95+ exCopyright Act, 1957+ Scanned with CamScanner tm al asi 64 + Interface of Design Law As we have already seen during the course of our stud Previous Chapter, design protection is now afforded in nd the the Design Act, 2000 to the features of new or original i configuration, pattern or ornamentation, Constitution of j i colours applied to any object by means of an industrial pro, or means, whether manual, mechanical or chemical, = oF combined, which in the finished article appeal to ang judged solely by the eye, This protection can be obtained only : completing the process of registration of the design as eae under the Act and it cannot last for a period of more than fifteen years from the date of registration. Design protection under this Act consists of a monopoly conferred upon the Proprietor of the tegistered design to apply the design industrially and to sell or import articles to which the design is applied, As seen earlier in this Chapter, Section 2(c) of the Copyright Act, 1957 allows protection of the ‘work’ as an ‘artistic work? The question of enjoying both the copyright and design rights in respect of the same article has been scrutinised by the courts lines or in many cases. In Plastells v. Controller of Patents," it was held that in case of a design, which is capable of being registered as a design under the provisions of the Design Act, 2000, but not so registered, copyright will continue to subsist under the Copyright Act, but will cease to exist as soon as fifty articles applied with that design are produced, through an industrial process, by the owner of the copyright, or with his license, by any other person. Where a design is likely to be used for mechanical production, the Plaintiff would not be entitled to claim any kind of protection of copyright under the Copyright Act. : It is normally not possible to enjoy concurrent protection of both copyright and design rights in respect of the same article. 121989) IPLR 202. : ——

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