Act for Acts

Protecting your Creative Expressions through Copyright Registration

Copyright protection for a manuscript, musical composition, some artwork

An application for copyright registration should be filed, before the work is published, provided to others, or made publicly available. Registration provides the possibility of statutory damages for copying, and is necessary to provide a court with jurisdiction to hear the suit. Registration may be accomplished any time after completion of the work, but the benefits of registration arise only after registration. The author should include a copyright notice on his work to notify others about the claims of copyright. Although such a notice is not required to receive monetary damages, the absence of a notice can give an infringer the opportunity to prove innocent infringement, which can reduce the amount of a monetary damage award. It is but this must be done carefully. The copyright application must disclaim pre-existing work that is included within his work. Depending on the amount and substantiality of the pre-existing work included, he may also need to obtain a license from the owner of the copyright in the pre-existing work before copying or distributing own work. Particularly in the case of musical compositions, even the inclusion of small amounts of work owned by others has resulted in substantial litigation. In some cases a license agreement from the owner of the pre-existing music copyright may be necessary in order to obtain copyright registration.  If the person is distributing the work to others for collaboration, to seek license agreements for his work, etc., document and retain copies of all correspondence with others. Copyright infringement requires actual copying, which can be proved by proving access to the work and substantial similarity of the allegedly infringing work to the copyrightable elements of the protected work. The degree of access and substantial similarity required are sliding scales – the more access can be shown, the less similarity will be needed to prove copying. Retaining copies of correspondence will help to prove access, thus making proof of substantial similarity easier.

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Copyright infringement

Copyrighted works can be used but to a limited extent as fair use’. Fair use determined by analyzing the purpose and character of the use (non-profit educational uses are more likely to be fair than commercial uses ‘re-constructive’ uses that change the nature of the work are more likely to be fair), the nature of the copyrighted work, the amount and substantiality of the portion used as compared to the work as a whole, and the effect of the use on the commercial value of the work. These factors will be weighed differently in different situations, and no one should assume that their use is fair without consulting an attorney familiar with copyright law.

Probably he must have applied for registration prior to the commencement of infringement, because prior registration provides the opportunity to gain statutory damages and attorney fees. However, even without prior copyright registration in cochin, a decision from the Copyright Office can be obtained on an expected basis, and actual damages and possibly an injunction are still available.

The first step is to compare the copyrightable elements of the original work to the allegedly infringing work, along with an evaluation of the degree of access that the infringer had to original work. If infringement is confirmed, the next step is a cease and desist letter. This letter is often enough to stop the infringing activities, but sometimes litigation is required.

A comparison of his work with the copyrightable portions of the allegedly copied work must be performed. Also, his access to the copyrighted work must be evaluated. The registration status of the allegedly copied work should also be checked to determine his potential liability. If the work is sufficiently different or amounts to fair use, then the disputant will be informed of this fact, and he may proceed with relative safety, although you could still be sued. If infringement appears likely, then steps will be taken to mitigate his exposure to liability, such as stopping the allegedly infringing activity and/or negotiating a license agreement.

Rectification for infringement

It is a solitary responsibility of the owner to witness that his copyright is not being infringed upon by someone else. It is the owner’s responsibility to file a case of infringement against the infringer. The alleviation which may be usually grant in such a case are:

  1. Injunctions whether interim or final
  2. Damages/ Amends

Criminal action also can be interpreted on the grounds of copyright registration. The minimum penalty for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000. In the case of a second and consequent conviction, the minimum penalty is imprisonment for one year and fine for Rs. 1, 00,000.

Protection of copyright in foreign countries

First the laws of the country wherein protection is desired should be researched prior to publication of the work, if possible, because the availability of protection may depend on facts at the time of the first publication of the work. Depending on the country in which protection is sought, one or more of several different international treaties may simplify the application process. One of the most common treaties is the Berne Convention. Copyright protection automatically exists for copyrightable subject matter in countries that have signed this treaty, without the need to take any formal steps.

International Copyright Convention

Copyright as provided by the Indian Copyright Act is legal only within the borders of the country. To assure protection to Indian works in foreign countries, India has become a member of the following international conventions on copyright and neighbouring (related) rights:

  • Berne Convention for the Protection of Literary and Artistic works.
  • Universal Copyright Convention.
  • Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.
  • Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties.
  • Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.

 A police officer not below the rank of sub-inspector can seize without judicial writ all infringing copies of the piece of work. A copyright owner can take lawful action against any person who infringes the copyright in the product. The copyright owner is eligible to remedies by way of injunctions, damages and accounts.

Use of a work without approval of the owner of the copyright

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Subject to specific conditions, a good use for research, survey, criticism, review and news coverage, as well as use works in library and schools and in the legislatures, is permitted without specific permission of the copyright owners. In a way to secure the interests of individual, some exemptions have been settled in respect of specific uses of works utilizing copyright:

  1. For the intent of research or private study;
  2. For criticism or review;
  3. For reporting current events;
  4. In connection with legal proceeding;
  5. Public presentation by an amateur club or social group if the performance is given to a non-praying public; and
  6. The making of sound recordings of literary, dramatic or musical works under certain conditions.

If the assignee does not employs the rights assigned to him within a period of one year from the date of assignment, the assignment in regard of such rights shall be considered to have lapsed after the expiry of the said period unless otherwise specified in the assignment. All the rights of the original work apply to a translation also. Computer programs per se are protected under the Copyright Act. They are treated as literary work.

Right of reproduction

The right of reproduction usually means that one should not reproduce one or more copies of a work or of a significant part of it in any material form including sound and film recording without the approval of the copyright owner. Printing an edition of a work is considered as the most common kind of reproduction. Reproduction occurs in preserving of a piece of work in the computer memory. Communication to the public means making any piece of work accessible for being seen or detected or otherwise relished by the public straightaway or by any means of exhibit or diffusion. It is not essential that any member of the public really sees, perceive or otherwise relishes the piece of work so made accessible. For example, a TV operator may convey a motion-picture photography, which no member of the public may see. Still it is a communication to the public. The concept that the piece of work in question is accessible to the public is capable to say that the work is communicated to the public.

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