Introduction to Copyright Registration – Trademark Registration in Cochin
Introduction to Copyright Registration – Trademark registration in Cochin
Copyright it is a form of intellectual property. With advancement in technology it is very easy to copy. The basic test in actions based on the infringement of the copyright is that if a thing fetches a price, it can always be copied and therefore, it needs adequate protection. It is well settled that although under the Copyright Act, 1957, there is a provision of registration, under Section 44 of the Act. It is not in doubt that the said procedure is an enabling provision and registration is not compulsory for the purpose of enforcing copyright. Section 44 of the Act provides for registration of work in which copyright exists but in order to copyright registration is not necessary. This is because registration is only to raise a presumption that the person shown in the certificate of registration is the author. This presumption is not conclusive, but no further proof is necessary unless there is a proof rebutting the contents of the said certificate. Under Section 48 of the Registration Act therefore, the act of registration is ex-facie prima-facie evidence of the particulars incorporated in the certificate. There is no provision under the Act which deprives the author of his rights on account of non-registration of the copyright. There is nothing in the Act to suggest that the registration is condition precedent to the subsistent of the copyright or acquisition of copyrights or ownership thereof or for reliefs of infringement of copyrights. The sine-qua non-existence of a copyright is expenditure of skill, labour and capital on any work expanded by a person or author and unless the original work is produced in court to prima facie show that the work has originated from author, no relief can be granted. In other words, copyright exists even without it being registered for the purpose of its enforcement. The nature of copyright is also meant to be borne in mind. It subsists in any material form in which ideas are translated. Copyright is an incorporeal right. It does not lie in any idea, but it lies in the expression in which the idea is expressed. The work of an author therefore becomes the subject matter of the copyrights. With globalization and advancement of technology, even computer programs come within the copyright. Any work conveying particular information comes within the subject matter of a copyright and it needs protection. Even a catalogue of items manufactured by a manufacturer can come within the subject matter of copyright. Even a decoration or an artistic work on a carton or a contained of goods can become the subject matter of copyright.
We are, therefore, of the opinion that the plaintiffs’ work is entitled for protection under Section 2 (c) of the Copyright Act and is an original artistic work. Since the work is an ‘artistic work’ which is not covered under Section 2(d) of the Designs Act, 2000, it is not capable of being registered under the Designs Act and the provisions of Section 15(2) is not applicable.
Agreement between author and publisher
The plaintiff in the present case has earlier not contended the line diagram infringement but subsequent amended the plaint and have filed one affidavit of Shri Avdhesh Kumar Maurya in support of the same who claims to be in the employment of the plaintiff. The subject matter of the dispute is the books authored by the defendant No. 1 who is doctor in the AIIMS (All India Institute of Medical Sciences) and it is her research work which is translated into the form a book. The defendant No.1 has contended that she has taken the line diagrams from the research work of AIIMS which is known as Leprosy Performa which has been used by leprosy clinic of the department of Dermatology – Venereology for last 6 years. At prima facie stage, the explanation accorded by the defendant who is expert in the medical field seems to be more convincing. It is still a matter of the trial if the plaintiff succeeds in proving their proprietary rights on the copyrights in the line diagrams. Thus, it is yet to be looked into during the course of the trial as to whether the plaintiff is the owner of the copyright in the said line diagrams or the same has been taken from the works of AIIMS. The sum and substance of the present discussion is that the plaintiff has failed to make out a prima facie case for the grant of the injunction as there are doubts expressed on the validity of the agreement dated 25th August 2003 as well as the fact as to whether the same amounts to an assignment documents and rather contrary intentions appear from the said agreement. The balance of convenience is in favor of the defendants as it is defendants who will be less inconvenienced who has already given time to exhaust the existing stock of books by way of letter dated 28.3.2003 as well as the fact as to whether the same amounts to an assignment documents and rather contrary intentions appear from the said agreements. The balance of convenience is in favor of the defendants as it is defendants who will be put to into inconvenience if they are directed to stop their new publications of third edition of the book as against the plaintiff who will be less inconvenienced who has already given time to exhaust the existing stock of books by way of latter dated 28.2.2007. The irreparable loss will be caused to the defendant if they are restrained at the stage as against the plaintiff who is no longer publishing the new edition of the defendant’s book. Further, the present agreement is determinable in nature and the same is also hit by section 14(1)(c)of the specific Relief Act, 1963. The contracts which are not specifically enforceable being determinable in nature cannot be otherwise enforced by grant of the injunction is also well settled proposition of law. Thus, the same is another reason for non-grant of injunction.
Rights of owner of copyright
Section 14, 19 and 30 & Chapter 6 describes the rights of owner of copyright and its provisions. The owner by exercising the right to license further demarcates the rights and imposes conditions and limitations by way of a period wise license or territory wise license exclusive or non-exclusive etc. Licensing is a mode of maximum exploitation of the rights under the Act by imposing conditions and limitations upon the rights. The right of the owner of the copyright to issue the copies of the work to the public will not be circumscribed by any territorial limitation. Thus, the owner of the copyright to issue the copies of the work to the public will not be circumscribed by any territorial limitation. Thus, the owner of the copyright will have the right to issue the copies of the work not being the copies already in circulation worldwide. Rights of the exclusive licensees which will be subject to conditions and limitations imposed by the owner of the copyright will flow from both the statute as well as from the covenant entered between the parties.
The legal propositions which emanate from this discussion are as under:
- That the court will measure the infringement of the copyright from the rights of the owner of the copyright when the owner is before the court for violation of its rights.
- That the rights of the owner may be broader than the limited rights of the exclusive licensee, although the exclusive licensee has the independent right to sue for infringement of the copyright.
- The rights of the owner and exclusive licensee may not be the same and the rights of the exclusive licensee shall also be subject to the fetters imposed by the agreement between the licensor and licensee.