Parul Institute of Law

Faculty of Law, Parul University, Vadodara.

LL.M: IP Law (SEMESTER I)

STUDY NOTES

PAPER 2: LAW OF COPYRIGHT, INDUSTRIAL DESIGN &

ELECTRONIC CIRCUIT DESIGN
-Prepared By: Dr. Hari Krishna Rajput

Asst. Prof.
COPYRIGHT: Meaning

A simple definition of copyright is that it is a bunch of rights in certain creative works such as
text, artistic works, music, computer programs, sound recordings and films. The rights are granted
exclusively to the copyright owner to reproduce the material, and for some material, the right to
perform or show the work to the public. Copyright owners can prevent others from reproducing or
communicating their work without their permission or may sell these rights to someone else.
Copyright does not protect ideas, concepts, styles or techniques. For example, copyright will not
protect an idea for a film or book, but it will protect a script for the film or even a storyboard for the
film.
Copyright is a separate right to the property right in an object. For example, this means that the
person may own a book or painting will not also own the copyright in the book or painting unless it
has been specifically assigned to them.

Introduction

Copyright is a legal right, existing in many countries, that grants the creator of an original
work exclusive rights to determine whether, and under what conditions, this original work may be
used by others. This is usually only for a limited time. The exclusive rights are not absolute but
limited by limitations and exceptions to copyright law, including fair use. A major limitation on
copyright on ideas is that copyright protects only the original expression of ideas, and not the
underlying ideas themselves.
Copyright is applicable to certain forms of creative work. Some, but not all jurisdictions require
"fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of
whom holds a set of rights to use or license the work, and who are commonly referred to as rights
holders. These rights frequently include reproduction, control over derivative works,
distribution, public performance, and moral rights such as attribution.
Copyrights can be granted by public law and are in that case considered "territorial rights". This
means that copyrights granted by the law of a certain state, do not extend beyond the territory of that
specific jurisdiction. This type of copyrights vary by country, many countries, sometimes a large
group of countries, have made agreements with other countries how to act in crossing border
situations and when national rights collide.
Typically, the public law duration of a copyright expires 50 to 100 years after the creator dies,
depending on the jurisdiction. Some countries require certain copyright formalities to establishing
copyright, others recognize copyright in any completed work, without formal registration. Generally,
copyright is enforced as a civil matter, though some jurisdictions do apply criminal sanctions.
Most jurisdictions recognize copyright limitations, allowing "fair" exceptions to the creator's
exclusivity of copyright and giving users certain rights. The development of digital media and
computer network technologies have prompted reinterpretation of these exceptions, introduced new
difficulties in enforcing copyright, and inspired additional challenges to the philosophical basis of
copyright law. Simultaneously, businesses with great economic dependence upon copyright, such as
those in the music business, have advocated the extension and expansion of copyright and sought
additional legal and technological enforcement.
Copyright licenses can also be granted by those deputized by the original claimant, and private
companies may request this as a condition of doing business with them. Services of internet platform
providers like YouTube, Facebook, GitHub, Hotmail, DropBox, Instagram, WhatsApp or Twitter
only can be used when users grant the platform provider beforehand the right to co-use all uploaded
content, including all material exchanged per email, chat or cloud-storage. These copyrights only
apply for the firm that operates such a platform, no matter in what jurisdiction the platform-services
are being offered. Private companies in general do not recognize exceptions or give users more rights
than the right to use the platform according certain rules.

MEANING OF COPYRIGHT
“The exclusive and assignable legal right, given to the originator for a fixed number of years, to
print, publish, perform, film, or record literary, artistic, or musical material.”

Statutory Definition- “The statutory definition of copyright means the exclusive right to do or
authorize other(s) to do certain acts in relation to –

1) Literary, dramatic or musical works;

2) Artistic work;

3) Cinematograph film; and

4) Sound recording”

CHARACTERISTICS OF COPYRIGHT

Copyright is not a single right rather it is collection of rights.Following are the characteristic features
of copy right.

Creation of a statute
Copyright is formation of a particular statute under the present law. This law is applicable only on
work which are as per the provision of this act i.e.any work can not qualify for copyright.

Some Form of intellectual property

A copyright is a form of intellectual property because it protects the product of a human mind.

Monopoly right
Copyright is monopolistic in nature. It restricts others from using the rights of a copyright owner.

Negative right
Copyright is a negative right it stops others from copying the work protected under copyright.

Object of copyright
The basic aim of copyright law is to motivate authors, composers and artists to create original works
by giving them exclusive right for a specified period of time.
Multiple rights
Copyright is not a single right. It consists of a collection of different rights in the same work. For
example, a literary work copyright includes the right issuing copies of work, translation of work etc.

Neighbouring rights
Copyright Act explains broadcasters’ and performers’ rights, they are known as “neighbouring
rights”. They were created for performing artists, producers of phonograms, and people involved in
broadcasting (radio or television).
History

Background
Copyright came about with the invention of the printing press and with wider literacy. As a legal
concept, its origins in Britain were from a reaction to printers' monopolies at the beginning of the
18th century. The English Parliament was concerned about the unregulated copying of books and
passed the Licensing of the Press Act 1662, which established a register of licensed books and
required a copy to be deposited with the Stationers' Company, essentially continuing the licensing of
material that had long been in effect.

Copyright laws allow products of creative human activities, such as literary and artistic production,
to be preferentially exploited and thus incentivized. Different cultural attitudes, social organizations,
economic models and legal frameworks are seen to account for why copyright emerged in Europe
and not, for example, in Asia. In the Middle Ages in Europe, there was generally a lack of any
concept of literary property due to the general relations of production, the specific organization of
literary production and the role of culture in society. The latter refers to the tendency of oral
societies, such as that of Europe in the medieval period, to view knowledge as the product and
expression of the collective, rather than to see it as individual property. However, with copyright
laws, intellectual production comes to be seen as a product of an individual, with attendant rights.
The most significant point is that patent and copyright laws support the expansion of the range of
creative human activities that can be commodified. This parallels the ways in which capitalism led to
the commodification of many aspects of social life that earlier had no monetary or economic value
per se.

Copyright has grown from a legal concept regulating copying rights in the publishing of books and
maps to one with a significant effect on nearly every modern industry, covering such items as sound
recordings, films, photographs, software, and architectural works.

National copyrights
The Statute of Anne (the Copyright Act 1709) came into force in 1710.
Often seen as the first real copyright law, the 1709 British Statute of Anne gave the publishers rights
for a fixed period, after which the copyright expired. The act also alluded to individual rights of the
artist. It began, "Whereas Printers, Booksellers, and other Persons, have of late frequently taken the
Liberty of Printing ... Books, and other Writings, without the Consent of the Authors ... to their very
great Detriment, and too often to the Ruin of them and their Families:". A right to benefit financially
from the work is articulated, and court rulings and legislation have recognized a right to control the
work, such as ensuring that the integrity of it is preserved. An irrevocable right to be recognized as
the work's creator appears in some countries' copyright laws.

The Copyright Clause of the United States, Constitution (1787) authorized copyright legislation: "To
promote the Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries." That is, by guaranteeing
them a period of time in which they alone could profit from their works, they would be enabled and
encouraged to invest the time required to create them, and this would be good for society as a whole.
A right to profit from the work has been the philosophical underpinning for much legislation
extending the duration of copyright, to the life of the creator and beyond, to their heirs.

The original length of copyright in the United States was 14 years, and it had to be explicitly applied
for. If the author wished, they could apply for a second 14‑year monopoly grant, but after that the
work entered the public domain, so it could be used and built upon by others.

Copyright law was enacted rather late in German states, and the historian EckhardHöffner argues
that the absence of copyright laws in the early 19th century encouraged publishing, was profitable for
authors, led to a proliferation of books, enhanced knowledge, and was ultimately an important factor
in the ascendency of Germany as a power during that century.

International copyright treaties

The Pirate Publisher—An International Burlesque that has the Longest Run on Record, from Puck,
1886, satirizes the then-existing situation where a publisher could profit by simply stealing newly
published works from one country, and publishing them in another, and vice versa.
The 1886 Berne Convention first established recognition of copyrights among sovereign nations,
rather than merely bilaterally. Under the Berne Convention, copyrights for creative works do not
have to be asserted or declared, as they are automatically in force at creation: an author need not
"register" or "apply for" a copyright in countries adhering to the Berne Convention. As soon as a
work is "fixed", that is, written or recorded on some physical medium, its author is automatically
entitled to all copyrights in the work, and to any derivative works unless and until the author
explicitly disclaims them, or until the copyright expires. The Berne Convention also resulted in
foreign authors being treated equivalently to domestic authors, in any country signed onto the
Convention. The UK signed the Berne Convention in 1887 but did not implement large parts of it
until 100 years later with the passage of the Copyright, Designs and Patents Act 1988. Specially, for
educational and scientific research purposes, the Berne Convention provides the developing
countries issue compulsory licenses for the translation or reproduction of copyrighted works within
the limits prescribed by the Convention. This was a special provision that had been added at the time
of 1971 revision of the Convention, because of the strong demands of the developing countries. The
United States did not sign the Berne Convention until 1989.

The United States and most Latin American countries instead entered into the Buenos Aires
Convention in 1910, which required a copyright notice on the work (such as all rights reserved), and
permitted signatory nations to limit the duration of copyrights to shorter and renewable terms. The
Universal Copyright Convention was drafted in 1952 as another less demanding alternative to the
Berne Convention, and ratified by nations such as the Soviet Union and developing nations.

The regulations of the Berne Convention are incorporated into the World Trade Organization's
TRIPS agreement (1995), thus giving the Berne Convention effectively near-global application.

In 1961, the United International Bureaux for the Protection of Intellectual Property signed the Rome
Convention for the Protection of Performers, Producers of Phonograms and Broadcasting
Organizations. In 1996, this organization was succeeded by the founding of the World Intellectual
Property Organization, which launched the 1996 WIPO Performances and Phonograms Treaty and
the 2002 WIPO Copyright Treaty, which enacted greater restrictions on the use of technology to
copy works in the nations that ratified it. The Trans-Pacific Partnership includes intellectual Property
Provisions relating to copyright.
Copyright laws are standardized somewhat through these international conventions such as the Berne
Convention and Universal Copyright Convention. These multilateral treaties have been ratified by
nearly all countries, and international organizations such as the European Union or World Trade
Organization require their member states to comply with them.

Works in which Copyright subsists

Copyright under The copyright act 1957:

Literary, dramatic, musical and artistic works

Literary work- Copyright subsists in original literary works and relates to the expression of thought, but the
expression need not be original or novel.
 The work must not be copied from another work but must originate from the author.
 Two authors independently producing an identical work will be entitled for copyright in their respective
works.
 The emphasis is more on the labor, skill judgment and capital expended in producing the work. It
includes tables, compilations and computer programs.

Dramatic work- Copyright subsists in original dramatic work and its adaptation.
 It includes any piece or recitation, choreographic work
 Entertainment in dumb show
 The scenic arrangement or acting form of which is fixed in writing otherwise
 But does not include a cinematograph film.

Musical work- Copyright subsists in original musical work and

 Includes any combination of melody and harmony, either of them reduced to writing or otherwise
graphically produced or reproduced.
 An original adaptation of a musical work is also entitled to copyright.
 There is no copyright in a song. A song has its words written by one man and it’s music by another; is
words have a literary copyright, and so has its music. These two copyrights are entirely different and
cannot be merged.
 In cases where the word and music are written by the same person, or where they are owned by the
same person, he would own the copyright in the song.

Artistic work means –

 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;
  An architectural work of art; and any other work of artistic craftsmanship.

 The work need not possess any artistic quality but he author must have bestowed skill, judgment and
effort upon the work.

 A poster used in advertisement is an artistic work. But advertisement slogans consisting of a few
words only are not copyright matter.

In case of literary, dramatic or musical work, A copyright gives the right to do and authorize the doing of any of
the following acts, namely-

i. to reproduce the work in any material form;

ii. to publish the work;

iii. to perform the work in public;

iv. to produce ,reproduce ,perform or publish any translation of the work;

v. to make any cinematographic film or a record in respect of work;

vi. to communicate the work by broadcast or to communicate to the public by loud-speaker or any other
similar instrument the broadcast of the work;

vii. to make any adaptation of work;

viii. to do in relation to a translation or an adaptation of the work any of the acts specified in
relation to the work in clause (i ) to (iv).

In the case of the artistic work, a copyright gives the right to do or authorize the doing of any of the following
acts, namely-

i. to reproduce the work in any material form;

ii. to publish the work;

iii. to include the work in any cinematography film;

iv. to make any adaptation of work;

v. to do in relation to an adaptation of the work any of the acts specified in relation to the work in clauses
(i) to (iii).
Copyright Registration Procedure

Registration of Copyright
The steps for Registration:
1. Application in triplicate with prescribed fees.
2. Applicant to serve notice of his application to every person who has any interest in the subject matter.
3. If the Registrar receives any objection he may after holding such inquiry as he deems fit, enter such
particulars of work in the register of copyright, which he considers proper.
4. Registrar then sends copies of the entries made in the register to the parties concerned

The procedure for registration is as follows:

1. Application for registration is to be made on as prescribed in the first schedule to the Rules;
2. Separate applications should be made for registration of each work;
3. Each application should be accompanied by the requisite fee prescribed in the second schedule to the
Rules ; and
4. The applications should be signed by the applicant or the advocate in whose favor a Vakalatnama or
Power of Attorney has been executed. The Power of Attorney signed by the party and accepted by the
advocate should also be enclosed.

Time for Processing Application

After you file your application and receive diary number you have to wait for a mandatory period of 30 days
so that no objection is filed in the Copyright office against your claim that particular work is created by you.

Scope and Extent of Copyright Registration

Both published and unpublished works can be registered. Copyright in works published before 21st January,
1958, i.e., before the Copyright Act, 1957 came in force, can also be registered, provided the works still enjoy
copyright. Three copies of published work may be sent along with the application.

If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application
for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies
of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be
retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be
open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask
for the return of the extracts after being stamped with the seal of the Copyright Office. When a work has been
registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars
entered in the Register of Copyright in Form V with prescribed fee.

All kinds of literary and artistic works can be copyrighted, you can also file a copyright application for your
website or other computer program. Computer Software or programme can be registered as a ‘literary work’.
As per Section 2 (o) of the Copyright Act, 1957 “literary work” includes computer programmes, tables and
compilations, including computer databases. ‘Source Code’ has also to be supplied along with the application
for registration of copyright for software products. Copyright protection prevents undue proliferation of
private products or works, and ensures the individual owner retains significant rights over his creation.

AUTHOR OR OWNER: RIGHTS OVER A COPYRIGHT

The Copyright Act of 1957 uses two separate terms – author and owner of Copyright. This has led to rows
over the concept of authorship and ownership rights
The term ‘author’ is defined under Section 2 (d) of the Act. It clearly states that in relation of different types
of works that fall under the ambit of Copyright who really is the author under that category and these are as
under:
1. in relation to a literary or dramatic work, the person who creates the work (author of the work);
2. in relation to a musical work, the composer;
3. in relation to an artistic work other than a photograph, the artist;
4. in relation to a photograph, the person who takes the photograph (the photographer);
5. in relation to a cinematograph film or sound recording, the producer; and
6. in relation to computer-generated work which is literary, dramatic, musical or artistic in nature, the person
who causes the work to be created.
Further, Section 17 of the Act clearly mentions that the author is the first owner of copyright in a work.
However, it also highlights those circumstances where an author is NOT the owner, unless there is a contract
to the contrary. These are:
1. a literary, dramatic or artistic created, during the course of employment of the author, for the proprietor of a
newspaper, magazine or similar periodical under a contract of service or apprenticeship, the proprietor is the
first owner of the copyright in that work, for the publication of that work or the reproduction of the same;
2. in case a photograph is clicked, or a painting or portrait is drawn, or an engraving or a cinematograph film is
made, for valuable consideration at the instance of a person, that person is the first owner of the copyright;
3. any work created during the course of employment or apprenticeship, the employer is the first owner of the
copyright;
4. in case of public address or speech, the person who has delivered that address or speech or if he has
delivered such address or speech on behalf of any other person, then that other person is the first owner of
the copyright;
5. in case of a Government work, Government is the first owner of the copyright;
6. in case of a work done or created for a public undertaking, that public undertaking is the first owner of the
copyright.

Who is The First Owner of Copyright

The author of the work is the first owner.
 In case the author is employed by newspaper, magazine etc under a contract of service, the
proprietor will be the first owner in the absence of an agreement to the contrary in the case of a
literary, dramatic or artistic work.
 Where a photograph is taken, or a painting or portrait drawn for a valuable consideration at the
instance of person, such person is the first owner.
 Where any address or speech is delivered in public, the person delivering is the first owner and where
it is delivered on behalf of another person such other person is the first owner.
 In case of Government work, Government shall be the first owner.

 In case of work made or published by or under any public undertaking, it shall be the first owner.
Unit -2

Introduction

Granting copyright seeks to protect the creative endeavor of an owner. Copyright gives an exclusive right to
the owner to do certain acts in relation to literary, dramatic, musical, and artistic works, cinematography and
sound recordings. Copyright is valid till the life of the originator plus 50 years after his death. In the case of
cinematographic work, the copyright is valid until 50 years after the work has been made available to the
public while for photographic works 25 years after the making of the work.

In India matters related to copyright are governed by the Copyright Act in 1957, which was subsequently
amended in the year 1994 and 2002. Copyright cannot be granted in some cases like:

1. Copyright cannot be said to be violated if the idea or concept of any person is used in a different
manner.
2. Copyright is not granted for ideas.
3. Copyright is not granted in live events.

So, basically for granting the copyright, the work which is being sought to be protected by copyright must be
original. However, this standard of originality to be determined varies in countries. In countries which follow
common law jurisdictions like United Kingdom and India, the standard of originality that is needed to be
proven is low, while in countries which follow civil law jurisdictions like France and Germany, the standard
of originality to be proven is high as certain minimum amount of creativity and author’s intellectual
expression is required to be shown to acquire a copyright protection.

Indian perspective on copyright protection:

The Copyright Act, 1957 provides copyright protection in India. It confers copyright protection in the
following two forms:

(A) Economic rights of the author, and

(B) Moral Rights of the author.

Rights of the copyright owner

Right of Reproduction

This is the most prominent right which is acquired after the copyright protection. This right authorizes the
person having such copyright to make copies of the protected work in any form. In the modern context
copying, a song on a Compact Device or any sound and visual recording can be considered as a reproduction
of the content. Prior to copying the permission of the author is required unless it can be shown that such
copying is not intended to make any commercial benefits out of it.

Right to Distribute

Right to distribute is an off-shoot of the right of reproduction. The person who owns the copyright owner may
distribute his work in any manner he deems fit. The owner is also entitled to transfer the whole or some rights
in favor of any other person while retaining others. For example, he can entitle any person to translate his
work.

Right to make Derivative Works

The copyright has the right to use his work in various ways, for instance making adaptations or translations.
One example of adaptation is making a movie based on a novel, so here to make any derivative work the
consent of the owner is mandatorily required. In these situations, certain other rights of the owner also come
into play, like the 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.

Right to Publicly Perform

The owner of the copyright has the right to publicly perform his works. Example, he may perform dramas
based on his work or may perform at concerts, etc. This also includes the right of the owner to broadcast his
work. This includes the right of the owner to make his work accessible to the public on the internet. This
empowers the owner to decide the terms and conditions to access his work.

Right to Follow

This right is granted generally only to the authors and artists. This empowers the authors to obtain a
percentage of the subsequent sales of his work and is called Droit de Suite or Right to Follow. The right is
also available to artists on resale of their work.
Right of Paternity

The Right of Paternity or Attribution gives the copyright owner a right to claim authorship of the work. Under
the Right of Paternity a copyright owner can claim due credit for any of his works. Thus, if a movie is
produced based on a book by an author, and he hasn’t been given due credit in it, he can sue the makers to
acknowledge his work.

Sui Generis Rights

The ordinary copyright law often fails to protect the computer software and databases since the essential
element of creativity is not present in such databases. Therefore, there was a need for new law to protect such
software and databases. The law of sui generis was introduced to resolve the problem of resolving databases
on the whole. A database is a compilation or arrangement of information which may not be creative; it may
still require protection from unauthorized copying. However, this may require certain modifications such as
the making of copies has to be excluded from such copyright protection. Such database right exists for a
fifteen year period.

Private Copying

This is an exception to the reproduction rights which are attained by the owner. According to this right, 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 such copies being made.

Conclusion

In conclusion is maybe said that copyright law adequately protects the rights of the copyright owners. The law
has kept pace with the changing times and has accommodated a number of new things in its ambit, including
digital reproduction and sui generis rights. India has also risen up to the challenge and updated its copyright
law from time to time.

Term of Copyright
Term of Copyright
The term of copyright varies according to the nature of the work and whether the author is a natural person or
a legal person e.g. a Corporation, Government Institution, etc., or whether the work is anonymous or
pseudonymous.
 1. In the case of literary, dramatic, musical or artistic work (other than a photograph) when published
during the lifetime of the author, copyright subsists during the lifetime of the author plus fifty years.
This is a universally accepted term.
2. Where the work is of joint authorship the fifty years period will start after the death of the author who
dies last.
3. In the case of anonymous or pseudonymous works the terms of copyright is until fifty years from the
year of publication. If the identity of the author is disclosed before the expiry of the fifty years period
the term will extend to fifty years after the death of the author.
4. In the case of posthumous publications the term will be fifty years from the year of publication.
5. The period of copyright for a photograph is fifty years from the year of its publication.
6. For cinematography film and record also the term is fifty years of publication.
7. Where the first owner of copyright is the government or a public undertaking the term of copyright is
fifty years from the year of publication.
8. Copyright works of International Organization also have a term of fifty years from the year of
publication.
Thus it may be seen that in the case of literary, dramatic, musical or artistic works where the author is a
natural person the term is lifetime plus fifty years. In all other cases the term if fifty years from the years of
publication.

How to Obtain Copyright

In order to secure copyright protection what is required is that the author must have bestowed upon the work
sufficient judgment, skill and labor or capital. It is immaterial whether the work is wise or foolish, accurate or
inaccurate or whether it has or has not any literary merit.
In order to qualify for copyrights the works apart from being original, should satisfy the following conditions
(except in he case of foreign works)
1. The work is first published in India.
2. Where the work is first published outside India the author, at the date of publication must be a citizen
of India. If the publication was made after the authors death the author must have been at the time of
his death a citizen of India.
3. In case of unpublished work the author is at the date of making the work a citizen of Indiaor domiciled
in India.
4. In case of the architectural work of art, the work is located in India.

Term of copyright protection under the Copyright Act 1957

 Literary
lifetime of the author + sixty years from the beginning of the calendar
 dramatic,
 musical and year next following the year in which the author dies.
 artistic works
 Anonymous and until sixty years from the beginning of the calendar years next
pseudonymous works following the year in which the work is first published
 Posthumous work
 Cinematograph films
 Sound records
 Government work
 Public undertakings
 International Agencies
  photographs

Foreign works
Copyrights of works of the countries mentioned in the International Copyright Order are protected in
India, as if such works are Indian works. The term of copyright in a work shall not exceed that which is
enjoyed by it in its country of origin.

COPYRIGHT LICENSES AND ASSIGNMENTS

One of the primary benefits of copyright ownership is the ability to transfer
some or all of those rights to third parties. These transfers can be for all of the
copyright rights in a work (which is generally referred to as an outright
assignment), or can be for a limited portion of the rights provided by the
Copyright Act (which usually takes the form a copyright license).

The BitLaw discussion of assignments and licenses is divided into the following
four sections:
 transfers in general
 implied licenses
 termination of transfers
 recordation of transfers

Transfers in General
Copyright is a personal property right, and it is subject to various state laws and regulations that
govern the ownership, inheritance, or transfer of personal property. It is probably best to view
copyright as a bundle of rights. The rights included in that bundle are the rights granted by the U.S.
Copyright Act, as described in the BitLaw discussion on the scope of copyright protection. Any or all
of these rights, or any subdivision of those rights, may be transferred.
A transfer of one of these rights may be made on an exclusive or nonexclusive basis. The transfer of
exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights
conveyed. Transfer of a right on a nonexclusive basis does not require a written agreement. For
example, the author of a novel, as the original copyright owner of the novel, could transfer to a
publisher the exclusive right to copy and distribute a novel (under the right
of reproduction and distribution), and also grant a screen play writer the nonexclusive right to create
a movie script based on that novel (under the right to create derivative works). The author's
agreement with the publisher would have to be in writing to be valid. However, the agreement with
the screen play writer could be oral and still be enforceable.
A transfer of copyright rights is usually either an assignment or a license. An assignment of
copyright rights is like the sale of personal property. The original owner sells its rights to a third
party, and can no longer exercise control over how the third party uses those rights. A license (or
more properly "an express license") is an agreement where the copyright owner maintains its
ownership of the rights involved, but allows a third party to exercise some or all of those rights
without fear of a copyright infringement suit. A license will be preferred over an assignment of rights
where the copyright holder wishes to maintain some ownership over the rights, or wishes to exercise
continuing control over how the third party uses the copyright holder's rights.

A typical software license agreement is a copyright license agreement. The owner of the copyright in
the software wishes to grant the end-user the right to utilize the software in a restricted manner. In
return, the end-user may agree to limit its use of the software in a variety of ways and to pay a
license fee payment to the copyright owner.

Implied Licenses
An implied copyright license is a license created by law in the absence of an actual agreement
between the parties. Implied licenses arise when the conduct of the parties indicates that some license
is to be extended between the copyright owner and the licensee, but the parties themselves did not
bother to create a license. This differs from an express license in that the parties never actually agree
on the specific terms of the license. The purpose of an implied license is to allow the licensee (the
party who licenses the work from the copyright owner) some right to use the copyrighted work, but
only to the extent that the copyright owner would have allowed had the parties negotiated an
agreement. Generally, the custom and practice of the community are used to determine the scope of
the implied license.

Implied licenses have been used to grant licenses in situations where a copyrighted work was created
by one party at the request of another. In one case, a special effects company was hired to create a
specific effect for a horror movie. The contract through which the special effects company was hired
did not assign the copyright in the effect, and did not provide for a license for the effect to be used in
the horror movie. The court ruled that the effect could be used in the horror movie through an
implied license, since the effect was created with the intent that it be used and distributed in the
movie.

A commonly discussed scenario where implied licenses are destined to play a major role is on the
World Wide Web. When a Web page is viewed in a Web browser, the page is downloaded through
the Internet and placed on the user's screen. It is clear that a copy of the Web page is being made by
the user. It is also clear that the Web page is protected against unauthorized copying by copyright
law. But it would not make sense to allow the author of a Web page to sue a user who viewed her
page, since the author intended that the page be viewed by others when she placed it on the World
Wide Web. Rather, attorneys argue, courts should find that the Web page author has given end users
an implied license to download and view the Web page. The extent of this implied license is unclear,
and may someday be defined by the courts.

Termination of Transfers
Although a copyright owner is free to transfer her copyright rights as she sees fit, the Copyright Act
contains a non-revocable right for a copyright owner to terminate any copyright transfer. The
purpose for this is to give the creator of the work or the creator's heirs a second chance to exploit the
work in situations where the value of the work may have been significantly enhanced since the
original transfer. Generally, there is a five year window of time to accomplish the termination
beginning either at
 35 years from the assignment if the transfer was made on or after January 1, 1978; or
 56 years from the date copyright was originally secured if the transfer was made before January 1, 1978.
The ability to terminate a transfer cannot be negotiated away. Thus, the author of a valuable book has
the right to reclaim the copyright in the book by terminating the transfer, even if the agreement
signed by the author stated that the assignment of her copyright rights was permanent and
irrevocable. Exceptions to this ability to terminate a transfer are made for those parties who created
derivative works prior to the termination (see the BitLaw discussion on derivative works for more
information on this subject). In addition, works made for hire are not subject to this termination of
transfer right (works made for hire are discussed in the BitLaw section on copyright ownership).

Recordation of Transfers
A document that transfers copyright ownership or any other document pertaining to a copyright may
be recorded in the Copyright Office. Although recordation is not required to make a valid transfer of
a copyright, recordation of the transfer document does provide certain legal advantages and may be
required to validate the transfer as against third parties.

Copyright Assignment vs. Copyright License

Copyright owners have a bundle of exclusive rights that include the right to publish,
copy, distribute, display, perform, and the create derivative works based on the
original work. When giving another person permission to do any of those things with
your work, you need a license or assignment agreement.

Having the proper type of agreement in place will ensure that your intentions are met
in terms of who will maintain ownership over your copyright and what exact rights in
your bundle of rights you’ll be permitting the other party to have.

Copyright Assignment

With a copyright assignment, you are contracting to give someone else your entire
copyright. Upon execution of the agreement, the ownership of the copyright will
transfer from one party to another.

Once you assign your copyright, you may not publish your work even if you were the
original author.

Assignment with Reversion

A newer type of assignment is an assignment with reversion. A reversion is a future

right to own the copyright. Thus, the copyright will be granted to another person, who
owns the copyright for a period of time or until a condition is met, and then the
copyright reverts back to the original owner. In some cases, the original owner will
have to pay for the reassigning of the copyright.

Copyright License
If you want to maintain ownership of the copyright, a license is a better option. With a
license, you’ll be maintaining ownership, while granting permission for another party
to use your work in a particular way.

It’s very important to carve out the scope of the permitted use carefully to ensure that
you’re not granting an over-inclusive set of rights.

Other important considerations are the license’s exclusivity, duration and payment
terms. Parties may negotiate for whether the license is exclusive, meaning that the
licensee will be the only person afforded those rights and the licensor will not grant
these rights to anyone else, or whether the license is non-exclusive, meaning that the
licensee is not the only person or entity being granted the particular rights. The
license agreement’s duration shall be clearly provided, including both parties’ rights
to terminate. Finally, how the licensor will be paid for the granting of the license shall
be laid out.

Assignments and Licensing Agreements should be drafted by an attorney to ensure

that existing and future rights are protected, while keeping in mind the overall
business objectives and creative pursuits. If you are thinking about signing a license
or assignment, please consult with an attorney to make sure you understand every
provision and the agreement as a whole.

THE COPYRIGHT ACT 1957

Assignment

A right to assign work under the Copyright Act 1957 (hereinafter referred to as 'Copyright Act')
arises naturally when the work comes into existence. However, certain rights are specific to certain
types of subject matter/work. Further an author/owner is entitled to multiple rights broadly
categorised as Economic3 and Moral4 rights. The owner of a copyright may grant an interest in the
copyright by a License.

The Act prescribes that a prospective owner of a copyright in future work may assign the copyright,
to any person, either wholly or partially, although the assignment shall take effect only when the
work comes into existence.

The requirements for an assignment to be enforced are:

(a) It must be in writing.

(b) It should be signed by the Assignor.

(c) The copyrighted work must be identified and must specify the rights assigned.

(d) It should have the terms regarding revision, royalty and termination.

(e) It should specify the amount of royalty payable, if any, to the author or his legal heirs.

(f) In the event the Assignee does not exercise the rights assigned to him within a period of one
year, the assignment in respect of such rights is deemed to have lapsed unless otherwise specified
in the Agreement.
(g) If the period of assignment is not stated, it is deemed to be five years from the date of
assignment, and if no geographical limits are specified, it shall be presumed to extend within India.

License

The owner of a copyright in any existing work or the prospective owner of the copyright in any future
work, may grant any interest in the right, by License in writing, signed by him or by his duly
authorized agent. The requirements specified above for an assignment will apply for a License. The
Copyright Board is empowered to grant compulsory licenses under certain circumstances on
suitable terms and conditions in respect of 'Indian work'. The circumstances necessary for grant of
such a License are as follows:

(a) the work must have been published or performed in public.

(b) the author must have refused to republish or allow the republication of the work or must have
refused to allow the performance in public, that by reason of such refusal the work is withheld from
the public;

(c) the author must have refused to allow communication to the public by broadcast, of such work or
in the case of a sound recording the work recorded in such sound recording, on terms which the
complainant considers reasonable.

The Copyright Act states that in the case of unpublished Indian work, where the author was a citizen
of India or is dead, unknown or cannot be traced, under such circumstances, any person may apply
to the Copyright Board for a License to publish the work or translation thereof in any language
according to the procedure laid down in the Act.

Conclusion

It is imperative that when considering assignment or license arrangements, companies ensure that
their arrangements do not infringe Indian exchange control regulations. Often companies engaging
in an assignment arrangement overlook the fact that Indian Reserve Bank rules must be followed
when issuing shares as consideration to an Assignor who is a non-resident. Issues relating to
ownership of IPR must also be carefully considered especially where employees may be creating
IPR outside the scope, time and available resources of the company that they work for. Employment
agreements need to be clear as to the scope of the engagement.

Refer: https://gradestack.com/Intellectual-Property-Law/Copyright-Licensing-and/Licensing-and-
Assignment/15951-3230-8485-study-wtw
 Infringement & Remedies

Infringement
Copyright in a work is deemed to be infringed:
a. When any person without a license from the owner of the copyright, or the Registrar of Copyright (in
certain situations) or in contravention of the conditions of a license,
i. does anything the exclusive right to do which belongs to the copyright owner, or
ii. knowingly permits for profit any place to be used for the performance of the work in public which
continues an infringement of the work, or
 a. When any person, makes for sale or hire, or sells or lets for hire, or offers for sale or hire, or exhibits
in public for trade or import (except two copies other than cinematography film or record for personal
use) any infringing copies of the week.
In general it is the commercial exploitation of the work in any form by a person without authority that
constitutes infringement.

Remedies against Infringement

There are three kinds of remedies against infringement of copyright, namely:

1. Civil remedies
Injunction damages or account of profit, delivery of infringing copy and damages for conversion.

2. Criminal remedies
Imprisonment of the accused or imposition of fine or both. Seizure of infringing copies

3. Administrative remedies
Administrative remedies consist of moving the Registrar of copyrights to ban the import of infringing copies
into India when the infringement is by way of such importation and the delivery of the confiscated infringing
copies to the owner of the copyright and seeking the delivery.

Jurisdiction of Courts
A suit or other civil proceedings relating to infringement of copyright is filed in the District Court or High Court
within whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose
irrespective of the place of residence or place of business of the defendant

Limitation
The period of limitation for filing the suit is three years from the date of infringement.

Acts Not Constituting Infringement

The Copyright Act provides certain exceptions to infringement. The object of these provisions is to enable the
encouragement of private study and research and promotion of education. They provide defenses in an action
for infringement.
The exceptions come under the following categories:
1. Reproduction for use in judicial proceedings and for use of members of the legislature,
2. Publication of short passages, restricted reproduction or performance for educational purposes,
3. Making of records under license from Copyright Board on payment of royalty,
4. Playing of records or performance by a club or society for the benefit of the members of religious
institutions,
5. Reproduction of an article on current economic, political, social or religious matters in newspapers,
magazines etc,
6. Reproduction of a few copies for use in libraries or for research or private study,
7. Matters published in official gazettes including Act of Parliament (subject to certain conditions ) or its
translation,
 8. Making of a drawing, engraving or photograph of an architectural work of art, or a sculpture kept in a
public place,
9. Use of artistic work in a cinematography film,
10. Use of an artistic work (author not the owner of copyright) by the author of any mould, cast, sketch,
plan, model, etc., made by him for the work,
11. Making of an object in three dimension of an artistic work in two dimensions subject to certain
condition, and
12. Reconstruction of a building in accordance with architectural drawings.
13. Fair dealing without commercial benefits.
Copyright law does not prevent a person from taking what is useful from an original work and create a new
work with additions and improvements. Under the guise of a copyright the owner of a copyright cannot ask the
court to close all the venues of research and scholarship and all frontiers of human knowledge.

Registering your copyright greatly enhances your legal protections against infringement:

1. Like other types of intellectual property, copyright is an intangible property. You can own
it, but not touch or feel it.
2. It only lasts for a limited time period. You can’t have a copyright on something you
created indefinitely. After a point of time, it will expire and bring your work into the public
domain.
3. It only exists for certain categories of work. You can have a copyright on original
literary/dramatic, artistic, and musical works; and on sound recordings and cinematograph
films.
4. It is a negative right. This means that you can prevent others from making unauthorized
use of your copyrighted work.
5. Unlike other forms of intellectual property, you don’t need to register a work to have a
copyright on it. Copyright protection is automatic as soon as the work is created.
6. Copyright is transferable through assignment or licensing.
7. It is non-excludable like all other forms of IP. IP is knowledge in some or the other form
and this simply means that unlike taking back a physical object, I cannot take back the
knowledge gained through IP.
8. Similarly, it is non-rivalrous. In simple terms, more than one persons can simultaneously
use it. If I am listening to one song or watching one movie, there is absolutely nothing else
preventing another person from listening to the song or watching the movie; provided they
have legitimately obtained access to it.
9. Lastly, it is a bundle of rights and not just a single right. When you have copyright to a
work, you get multiple rights like the right to make copies of it, store it, make 2D/3D
versions of it, perform it in public, assign it, license it etc. That is why we call it a bundle
of rights instead of a single right.

Refer: https://gradestack.com/Intellectual-Property-Law/Copyright-Licensing-and/Licensing-and-
Assignment/15951-3230-8485-study-wtw