Author: Ishani Chhaudha
Amity law school, Noida
Intellectual property rights are those rights enshrine the outcomes of individuals creative intellect for which they would be protected and knowledge, the intellectual property right also provides them the monopoly or the exclusive rights, which are limited monopoly as all the intellectual property are not perpetual in nature. The Intellectual property rights are divided as per the intellectual works of the person; it includes the various branches as- patent law, copyright law, trademark, Geographical indication, integration of semi-conductors, Designs, plant variety Act and Biodiversity. The true essence of the intellectual property is intangible in nature but they are turned from intangible property to tangible property in order to give effect for the purpose for which they are created and also to get the economic benefits out of such creation.
The intellectual property right aims to protect the creation of intellect in compliance with the Trips agreement as Indian being a signatory member of the TRIPS. The Agreement Trade Related Aspect of Intellectual property (TRIPS) is an international agreement created between the members of World Trade Organization (WTO). The TRIPS was negotiated in the Uruguay Round of the General agreement on tariff and trade (GATT). Initially the trade agreements were done through bilateral agreements between two nations which then lead to Most Favored National policy and National treatment, but with the advent of the trade at international arenas let to the creation of Multilateral agreement or treaties such as TRIPS, WIPO, GATT, WTO, and many others.
It is important to understand the basic structure leading to the existence of copyright as a law. Where the foundation of the copy right law is recognized through the concept of intellectual It property rights. These are those rights which are given to the individuals for the creation and the creativity they bring through their own human intellect.
These are considered as monopoly rights which ensure the exclusivity of the creation in the hands of the creator or inventor itself. Generally it refers to creating tangible out of intangible objects felt by the inventor itself.
There are main object of intellectual property rights that is
“TO STRIKE A BALANCE BETWEEN THE INVENTOR OF THE INVENTION AND THE SOCEITY ITSELF ’
The introduction to intellectual property rights plays an important role because it acts as a stepping stone for the development in the field of science and technology along with the development of nation as whole. Where for every nation it is important to be a part of the convention country to ensure that they are well aware about the guidelines and standards provided by the international treaties and conventions associated with the intellectual property rights. Since the protection plays an important role otherwise it will hamper the growth of the nation as a whole in every respective field of development in the nation.
The copyright consists of an essential element in the development of any country. It basically connotes the level of protection given to the literary works, dramatic, music and artistic works even it includes the sound recordings and cinematograph films. The higher the level of protection of the work provided by the associated author the more encouragements towards the development not only the country as a whole but also enhancement of the human intellect. The concept of copyright is understood by the evolution it has underwent in the history to form an accurate Act which comply with the contemporary needs of the authors of the copyrighted work. Copyright is one of the Intellectual property rights which ultimate aim is to protect the creator or author or owner of the work for which they have invested their time, money, skills and which is reflection of their personality. Such creation of intellect needs to be protected and the author of such work should be provided exclusive right to use his own creation and to reap economical benefit from it.
Copyright for the first time was included under the Berne convention 1886, the convention was adopted in 9th September 1886, formulating the protection of literary and Artistic work. This convention is in accordance with the WIPO and is one of the oldest international treaties in relation to copyright. The convention lays down the three basic principles those are 1) National Treatment policy this principle simply states that the national should be treated equally as they treat their own nation members for the better protection of copyright, 2) Automatic protection; this principle of Berne conventions states that the copyright need not be registered separately in other nations as it will be protected automatically by the other countries, 3) Independence of protection; this principle states that the creator of the work is free to use his invention anywhere he likes, he is independent from the place of origin where he is granted the protection for such copyrighted work.
DESSERTATION WOULD REVOLVE AROUND THE FOLLOWING
Copyright societies tend to play an important role in the protection of the work created by an innovator. It is basically a set of legal framework which is used for securing the work from being misused in any of the form. These societies give an assurance to the creative authors for the commercialization of their work in any field which is covered under the Indian copy right act and with an objective not only to protect the interest of the author or the creator of the work but also public interest so to strike the balance between the digital environment which would lead to social, economic and cultural development.
1. DEFINATION OF COPYRIGHT LAW
It is important to understand what actually copyright law is and why is it’s considered as a part of intellectual property rights.
In a lay man lines: the term copyright states that something which an author possess a right over the creation made and who is actually allowed to copy the same.
The copy right law refers to the right that is given to the author over his creation and not only the protection to the author itself but it also includes neighboring rights or related rights which helped in the creation of the work itself.
Copy right include the essential elements in the development of not only the society as a whole but also the nation itself which would include the protection of cultural heritage as a whole.
As such there is no specific definition which is given for the law of copyright but it includes the creativity of an author either in literary, artistic and cinematography as well.
1.1 HISTORICAL DEVELOPMENT OF THE LAW OF COPYRIGHT
The concept of copyright began with the invention of printing which made it possible for the literary works to be duplicated by mechanical processes and the protection to the creator plays an important role and accordingly the restrictions were imposed by Henry in the year of 1523 and 1528 and then the emergence of the law of copyright needs to be taken into the account and led the introduction of copyright in the year 1790 in other countries and then its introduction to India.
INTRODUCING COPYRIGHT LAW TO INDIA
The Copyright regime in India developed during various phase of the Indian history, the earliest most copyright law in India was the Indian copyright law of 1847 which came into existence during the East India Company’s regime and another law was the Imperial Copyright Act of 1911, brought into force by the Britisher’s during their British rule. Then came the Act of 1914 which consisted 15 sections including the original work attached to the protection of copyright law, the term of copyright during that phase was for the term of 25 years after the death of the author of the work. Under the Act of 1914 the infringement of copyright was not considered as an offence, it was only that the copyright owner had right to destroy the infringing copies. In the later phase when India got its Independence in 1947 and the constitution was adopted in 1950, and with the advent of new technology nationally and internationally, a need was felt by the legislation framers to enact the Indian copyright Act of 1957, which is still carried forward with the same name. .
By protecting the intellectual property right in the form of copyright protection it act as legal framework provides the framework in form of incentive provided to the creators to invest time and resources to foster the innovation and expand knowledge. The terms like “video films”, “cinematography films”, “computer programs” and the definition of “duplicating machine” was included in the amendment of 1984. In 1994 amendment the after the obligation from TRIPs agreement the copyright Act of 1957 has to underwent the many other amendments to comply with the TRIPs, such as the rights of the performers were recognized and right to reproduce them by the way if sound recording or visual recording. It also protected the composer and creative artist and the amendment also asserted the assignment provision to protect the interest of the assignor and assignee. Finally the Amendment of 2012 was the most drastic of all the amendment, which lead the copyright law completely to a new dimension which is accurately complying with the contemporary needs of the Copyright law in India.
1.2. ESSENTIALS OF COPYRIGHT LAW
The concept of copyright constitutes as an essential element in the development process of country. It is important to understand that the cultural heritage of the nation depends upon the level of protection and the rights that are granted to the creators over the creation in the form of literary artistic musical and cinematography film and sound recording.
Where the balance has to maintain between the two that is digital environment and public interest. But it is important to understand that copyright itself is incorporeal property in nature and the property in the work is justified by the fact the creator is the owner of the property.
And this bundle of rights is considered as a negative right where it allows only the exclusive right over the creation by the creator only and it is limited in time period.
ESSENTIAL OF COPYRIGHTS
- Concept of originality : this bundle of rights evolve around the concept of originality which deals with something new has to be taken into the account which is not a part of public domain or in known to the public.
- Written expression: The most important concept is to understand that there has to be written expression of creativity to be protected or it will help from being infringed. Idea, discovery and even the events cannot to be protected unless in the written form and new in nature.
- Use of skills: the another important concept is that to use of skills and labor for the creation by the creator since the protection is not only limited to the creator but also the related people who are a part of the creation in form of performers or in form of broadcasting organization .
The duration of the exclusive right over the creation is 60 years after the death and lifetime of the creator on the creation.
It is a statuary right which ensures the foundation or the base of the act in inculcated through the recognized statue and came into existence in year 1957 and currently with certain amendments in the act related to copyright.
COPYRIGHT ONLY IN FORM, NOT IN IDEA
All the essentials that are given the copyright plays an important role if something is written and is expressive in a manner not a mere just an idea.
It generally means that if a work is been created in the owners mind it would not get the copyright protection unless and until it is in a written form and in a tangible medium of expression .the copyright protection over the idea is not there so there is not a kind of infringement taken into the account to take over the idea and to build something new to it.
To explain this idea dichotomy expression one of the major case laws taken into the account are:
CASE: DONGUE VS ALLIED NEWSPAPER LIMITED (1937 ALL ER 503).
The facts of the case is where the plaintiff here known to be Mr. Stephen Donoghue who was a very well known to be a racing player and was communicating his experiences to the journalist there were some suggestions and alterations were made in the manuscript and the final draft was read by plaintive the manuscript was publish in newspaper titling Steve Donohue s racing secrets on 17 may 1931 after few years the journalist got into a agreement into other publications and decided to publish some of his original articles with certain modifications where he once again publish Steve Donohue’s article with different title without even taking his consent therefore plaintive filed a suit for injunction for restraining and circulating those articles and claiming for the damages for infringement of copyright.
In the present case it was held that the plaintive could not sustain his action for injunction because as far as the evidence was noticed. It was considered that the particular form of language in the form of stories was conveyed by the journalist not by the plaintive that is why it was considered that there was no copyright infringement in the above case.
The concept in the case was discussed that even if the person who communicates his idea to the producer, director or even the other role players and they try to make a creation out of it. Then the idea provided would belong the creation build over it not just an individual which communicate the same and he doesn’t have any kind of right over the creation produced since he only communicated the idea but doesn’t use the tangible medium of expression to provide the same to the world for the protection.
According to section 13 of the Indian copyright law it deals with the subject matter of what all is included in the protection of copyright which include the following the original work of literary , music art works cinematograph films and sound recording where the former are considered original work and the latter are considered as a derivative works .
TEST OF ORIGINALITY
It is important to understand that the term original plays an important role in the protection of creation created it is one of the biggest essential under copy right law which states that it must not be copied work and it has to come from the originator itself .
Case: MACMILLIAN VS COOPER (AIR 1924 PC 75)
In the above case the question was not in the matter of the material used or is new as per the acknowledgement of the plaintiff where it was that whether the exactly same material was arrangement or combined together and is in the public domain or used before or not, it is important to consider that an individual has used his own skills and labor and his providing the new thing then only they are allowed to get titled for copyright under the Indian law of copyright act 1957.
It was held that any creation is created is the product of labor, skill and capital of one man which must not be made by another person. The main concept of the copyright law is that in order to different it with another product created it has to be something original and quality to the creation to be taken into the account. The control over the raw material cannot be taken onto the account but something different and unique would play an important role in law of copyright The copyright law provides an automatic protection to the invention made without any registration taken into the account. Where registration act as an evidentiary value for the same.
So, on the note that to avoid delicacy of the work registration plays an important role for the protection of the invention taken into the account.
The relationship between copyright and its societies is considered to be a parental relation where copyright society is a branch of copyright where the protection of the work is been done through copyright societies and it ensures that both of the users and the authors tends to access and tends to use the information for the further development and act as a stepping stone for the invention in the field of intellectual property rights and it would lead to further global dependencies.
It is important to understand that the copyright work made by an individual can be depend upon the work and its all the exclusive rights apart from the moral rights the other exclusive rights can be transferred and can be considered by the means of the licensing or the assignment under the copyright act as sometimes it depends upon the government itself with would lead to the compulsory licensing as well something which is good for the development of the country as a whole because the main focus which is made under the intellectual property rights be it any kind of the property the protection is made according to the working of the copyright societies along with the development of the nation itself and it would lead to the further enhancement of the working of the new inventions .
For example : if any person who tends to work under the any company and some work is been assigned by the owner if the company then in such a case the owner of the work who tends to made the accomplishment of the matter is the owner of the company itself it would not an employee since it’s the duty that is need to be performed during the course of employment here as something which is made out the course of employment the real owner is the author its self only but it is important to keep in mind by creating something out of human intellect that the protection and if it’s not been used by the public to that extend then automatically it will have to fall in the category of the public domain so that it would be available to the public itself and would lead a balancing factor to be retain any how that is why in copyright there are certain provisions which tends to state that subject matter , criteria and other more important thing.
1.4. INTERNATIONAL CONVENTIONS AND TREATIES RELATED TO COPYRIGHT.
In order to understand the role of international treaties it is important to understand the concept of global copyright which refers to that each and every country tends to have this law in the set of guidelines given by one of the international convention which is known as trade related intellectual property rights.
Where every copyright law of country is different. This concept begins with the following conventions:
- BERNE CONVENTION: This convention is administered by the world intellectual property organization which basically helps in setting up of minimum set standards for protection of copyright creations created by the creators. It is the oldest and most important treaty signed in the year of 1886. Which ensures the type, duration scope and limitation as a set standard of protection .It helps in providing the concept of automatic protection and national treatment as per the set standards provided Where the term automatic protection refers to the concept ensuring the creation created by the creator is automatically protected as there is no need for the protection to be taken differently and the concept of national treatment is the treatment given to the individuals exactly the same given by the signatory country as of their own country members. After the Berne convention it was TRIPs which further let to the development of copyright at an international level, it was also in this phase that the multilateral treaties were signed by the members of TRIPs. TRIPs lead down the international trade standards for the intellectual property rights for goods and services. After the TRIPs the international convention for copyright protection was the WIPO copyright treaty of 1996. The treaty aims to guide the copyright communities and guidance policy created impact on the national legislation, the WIPO copyright treaty lead to the creation of various other treaties like WCT established in 6th April 2002 and WPPT (WIPO Performance and Phonograms Treaty) established in 20th May 2002. These treaties helped in covering the new merging technologies which were not protected under the Copyright law of the countries specifically protecting the contemporary Digital environment like computer programs, compilation of data, copyright protection extending to expression and not to idea, mathematical concepts, and so on. The Copyright regime in India developed during various phase of the Indian history, the earliest most copyright law in India was the Indian copyright law of 1847 which came into existence during the East India Company’s regime and another law was the Imperial Copyright Act of 1911, brought into force by the Britisher’s during their British rule. Then came the Act of 1914 which consisted 15 sections including the original work attached to the protection of copyright law, the term of copyright during that phase was for the term of 25 years after the death of the author of the work. Under the Act of 1914 the infringement of copyright was not considered as an offence, it was only that the copyright owner had right to destroy the infringing copies. In the later phase when India got its Independence in 1947 and the constitution was adopted in 1950, and with the advent of new technology nationally and internationally, a need was felt by the legislation framers to enact the Indian copyright Act of 1957, which is still carried forward with the same name.
- World intellectual property organization which was established in year 1996 and makes the amendment to the act itself while introducing in the copyright that computer programs and databases are part of the act itself.
It helps in providing the concept of copyright infringement and even the internet and similar networks is an exclusive right.
- Trade related intellectual property rights: This agreement was signed in the year 1996 which administered by world intellectual property organization which also ensures the set standards related to copy right law and accordingly providing the provisions to the countries to make the laws .
The primary objective of copyright is not something just a reward to the labor of authors but it also renders the progressive growth of the science and useful art, where the authors have the right to assure their original expression but encourages other people to work on the information built up or conveyed. Which act as a stepping stone for further upcoming creations.
The Copyright law has an important part of the intellectual property, the copyright not only protects the subject matter as provided by the Act but it also Acts as a shield for other intellectual property if not protected under those intellectual property like the design does not protect the expression of an idea of design, but only protects the design in two dimension and three dimension, therefore this expression of design can be protected under the copyright. Another protection is when the artistic work of the owner cannot be protected under the trademark it can be covered under the copyright law, like the motion pictures or logo which have no provision under the Trademark Act of 1999 can be protected under the Copyright law.
INTRODUCTION TO COPYRIGHT SOCIETIES
(UNDER INDIAN COPYRIGHT LAW AS PER THE COPYRIGHT ACT 1957)
This chapter would help to understand the concept of copyright societies, which actually helps and states what copyright societies are and their importance, role establishment powers and duties.
2.1 CONCEPT OF COPYRIGHT SOCIETIES
Due to the great development in the field of science and technology apart from the print medium, audio recording music and other methods of spreading the creative works. Where all these development has created new opportunities for the economic exploitation of the work but has actually led the serious challenges to effective protection to the opportunities being created.
And that has led to the introduction to the copyright societies as it is very difficult for the copy right author of work to protect his creation from being infringement as there are tons of users which tend to access the work without being permitted to the use the same. The major problem related to the work protection is that it will protect in the reach of author but actually it is difficult to predict that how many people being it India or abroad is accessing the same.
For example: In India there is a flee market known as sarojni nagar this market place is best known for cheapest clothes, bags jewelry and cosmetics, where most of the cosmetics are duplicate copy of luxurious band and in such a case the owner of the cosmetics can claim the same but it requires a link between the problem created and creator of the work that bridge gap is covered by copyright societies.
To understand how it works, let us imagine that we are in the business of catering and owning a restaurant and on any such festivals we desire to play the songs and themes of the popular music this how this act comes into the picture and this act would ensure the complete obtaining and consent of the owners of the work and what is need to be taken into the act and then it would be helpful. The Act requires you to take licenses form the authors. This means you have to take permission of the lyricist for the literary work, composer for the music and tends to apply for the societies the subject matter tends to lays down.
The copyright societies are considered as a legal frame work for the management between the creator’s owners of the works. The copyright societies grant a license to the general people over the access of the subject matter which is protected and the subject matter provided under copyright act 1957.
They basically act like link between authors and performers and those who want to use their work. They actually grant the authorization, collect the payments or royalties and to seek the compensation from unauthorized users. The most important task of the copyright societies is to act like a watch dog against the infringement been caused by the UN authorize users and to take the proper legal measures for the same.
2.1.1 HISTORICAL OVER VIEW OF COPYRIGHT SOCIETIES.
The scope of copyright is dynamic in nature as the various Amendments made into the Act provided an Act which is accurate to the needs of the copyright owners, the scope of copyright can also be understood from the subject matter which are covered under the Act are so specific and covering the various fields of the copyright. The subject matter of the copyright is similar For all the nations with the copyright law, it includes Original literary work, novels, short stories, poems , dramatics, musical work, artistic work, maps, technical drawings, photography work, motion pictures, sound recording, computer programmers and translation and adaption of work are some of the subject matters of the Copyright Act of 1957. The copyright helps to protect the interest of the author and even encourage the future author, by the reflection that their rights are protected and they are the exclusive owner of the copyright in terms that they have right to sell, use, re-sell, distribute, display, perform their work in front of public and in case of sound recording to perform their rights by way of broadcasting.
Prior to the amendment (1994 copyright law) the copyright laws tends to deal with the performing rights societies which only grant the license related to the performance subsist the copyright work in India under section 33 to 36 of the act itself which was limited only to the copyright work on a subject matter of artistic, literary or even musical work as well. It was during the expansions of the copyright law which included ALL THE RIGHTS RELATED TO ALL CLASSES OF WORK. After the amendment the organizations which were allowed to carry out the business of issuing the licenses were known to be copyright societies.
Copyright societies are defined under section 2(ffd) of the copyright act and the complete definition is given under section 33(3) of the act which states that:
The central government of India with regards to the interest of owners right , authors creation and related to public group which wanted to seek the license for the access of the creative work of the author can registered themselves by sending an application to the copyright societies .
Provided that it government would not issue more than one copyright society to do the business with respect to the work of the same class.
2.1.2: ESTABLISHMENT OF COPYRIGHT SOCIETIES IN INDIA.
The establishment of the copyright society begins with the process of getting the society related to the work to be registered under the legal framework of the act so to ensure the legal validity of the society where the applicant whether he is the author or the user that require the access can apply for the same.
So that if any kind of illegality is dine on both the side the legal actions can be taken into the account so the existence if the copyright society along with the validation plays an important role.
As per the rules of 1958 of copyright law tends to provide certain conditions to be taken into account for the process of the registration of the copyright society defined under section 33 of the copyright act of 1957 as well.
- Any person or body of cooperate included seven person or more can form a copyright society subject to the application is submitted to the central under form II and can form a society for granting the licenses and allowing the permission related to the creative work and once the application is accepted then the formed society can carry it forwarded . It’s being signed by the governing body along with the chief executive applicant.
- As per rule 14 of the copyright act 1958 the registration would be granted only on 2 conditions that were :
- The commitment of the copyright society members for carry forwarding only the work related to the copyright subject matter and there too.
- Acceptance of all the rules and regulations related not only to the establishment of the copyright law but adherence to follow them is important.
- Documents which are required for the submission of the application to the central government which include the application itself, the consent of all the members who are forming the copyright society as per rules of copyright law provided under rule 14 A and it includes the deceleration of objectives and the auditing as well along with the functions and powers related to the members.
- And once all the above conditions are full filled within sixty days from filling the application to the central government will grant the title of copyright society and the following grounds for non acceptance of the applications which include:
- Incomplete submission of application related to the documents given.
- The incompetency of the members to form the copyright society.
- Another copyright society related to same matter tends to exist.
Otherwise once accepted the grant of certificate to the members to form the same is taken into the account as well.
- Suspension and cancelation of registration can also take place depends on the facts and circumstances where for the former one an administrator is appointed to evaluate the powers of the copyright society provided under rule 14 (e) of the copyright act 1958.
Cancelation of the registration can be made under rule 14(F) of the act where any kind of false statement written or given and include the failure of the auditing of the society itself or utilization of the funds for another purpose not for the purpose made.
- The time period of the societies registered is for the term of five years from the date of registration and it will be renewed from time to time by providing the notification to the central government and then renewal can be made. Those societies which are exiting prior to the amendment of 2012 of copyright law is compulsory for them to registered themselves as per the latest amendment of 2012.
2.2. STATUARY PROVISIONS RELATED TO COPYRIGHT SOCIETIES
2.2.1: ROLE OF COPYRIGHT SOCEITIES
Copyright societies tends to play an important role since they are the part of the collective management system which is a link between the authors and the registered user who is willing to seek the permission for the usage of the work required and is created by the author .
The main objectives of the copyright societies are that they ensure the interest of both the parties and would not curb the growth and development of the society on a whole. Where the grant is made in such a manner that an adequate usage and something new is been created out the scratch itself. These societies helps in protecting the creative ideas to be include into the written form so to sustain the validity of the creation and would balance the same . Where every invention act as a stepping stone.
this will help the nation development itself and would not only lead an effective way but also ensure that protection to both the parties is important.
2.2.2: POWERS OF COPYRGIHT SCOEITIES
The powers of copyright societies are defined under section 34 of the copyright act of 1957 which states that:
- a copyright society may accept from an owner of rights exclusive authorization to administer any right in any work by issue of licenses or collection of license fees or both; and
- an owner of rights shall have the right to withdraw such authorization without prejudice to the rights of the copyright society under any contract.
- It shall be competent for a copyright society to enter into agreement with any foreign society or organization administering rights corresponding to rights under this Act, to entrust to such foreign society or organization the administration in any foreign country of rights administered by the said copyright society in India, or for administering in India the rights administered in a foreign country by such foreign society or organization: Provided that no such society or organization shall permit any discrimination in regard to the terms of license or the distribution of fees collected between rights in Indian and other work.
This section basically gives the choice to the right owners to authorize the copyright society for either full or partial collective administration where the former defines the exclusive rights, remunerations and other conditions of authorization uses where the latter one states that authorization would be taken into account directly but the remuneration is collected by the societies itself.
Even provided the opportunities to the owner to remove or to withdraw being a member of the society itself without any prejudice.
A copyright societies is required to frame a scheme to determine the quantum of remuneration payable to the copyright owners with regards to the copies being used given or distributed the same which is defined under section 34A(2) of the copyright act 1957.
The power of the copyright societies on a whole is to maintain the link between the societies formed its members and its user. Every word provided is complementary with each other thus the role of copyright is considered as important as the foundation is need to taken into the sector exactly same as the house needs a brick to built into the home along with other tools as well.
This how the role of copyright societies is vital for the development and to reduce the infringement.
2.2.3: FUNCTIONS OF COPYRIGHT SOCEITIES
The functions of the copyright societies helps in providing the objectives of the copyright society and what is actually the purpose of these societies.
- The one of the most important function of the copyright society is to issue the licenses to the authorizes user of the work and collect the fee related to it for the same which states that these societies a bridges the gap between the work of the author and the need to of the user and it would only be fruitful once they tend to use the work only after the grant of license to seek the information of the work given or provided .
- Administrative rights of the owner and distribution of the fee which is collected by the copyright society, this basically ensures that safe guarding the interest of the of authors and their work where it becomes important to ensure that they are allowed to provide their work to the authorize user along with the right to withdraw from the copyright societies if they so wishes to. Whatever the fee being collected by the copyright society leads to the distribution of the fee generated in a manner provided under the rules and regulations.
- Copyright society act as a body of cooperate which states that are allowed to enter into the contract with not only the organizations of the competent authorities but also the foreign organizations and without any discrimination over the collection of the fees with respect to the foreign organization the society entered into contract with.
- Equal rights to the members of the copyright society and it is important to ensure that there shall no prejudice or discrimination over the works provided by the different authors. where the author might has given less or more creative work but it’s a original form of work which has to be protected any how either which ways the protection of the work and the interest of the author over the work cannot be deprived on the grounds of few or more works they have created and so to ensure keep a vigil on infringement of the copyright and take appropriate legal action .
- Records and registration of the royalty of the work the maintence of the work is important so to record what all the creative work and who is actually the original owner of the work is it basically help in the development of the new things along with keeping the records of the previous one as well and it would include not only the records of the authors but also the users who tends to pursue the same.
- Concept of tariff schemes and distribution of the scheme provided under section 33 as of the copyright act 1957 along with rule of 1958 of the copyright act itself connotes the nature and the quantum which ensures the royalty or fee imposed according the work or the information foreseen would be taken into the account and the distribution of the scheme would be taken into the account in a manner the of actual work of the author and respect proportionate of the copyright societies.
2.3 DUTIES AND RESPONSIBILTIES OF COPYRIGHT SOCEITIES.
The concept of copyright society not only helps in understanding how they work or what functions and powers they posses but what is actually their duties towards its members and being a cooperate body towards itself own and which also include the responsibilities .
- Where the most important duty of the copyright society is to protect the interest of the both the ends which are the author and his work along with the user and so to ensure both of them are not actually at loss or hamper their own spheres it is important for the copyright societies to keep a check over the same .
- Conducting the meetings of the copyright societies which would ensure the matter of issue or the dispute taken into the account along with the application filled need to be looked for the same and if few of them are rejected would be taken along into account by giving them the opportunities of the being as been defined under the rule 14L of the copyright acct rules of 1958.
- Payment of the remuneration: the economic benefit is need to provide the authors for their work otherwise they won’t be able to work freely and would lead to the negative impact over the world development related to the concept of intellectual property itself leading to face the different challenges of the world itself .
- Effective and efficient measures taken if any kind of infringement take place of the work , it is one of the most important duties after maintaining the balance between the creator and the user but it is important that on time the payment is taken into the account and if any kind of the illegal action take place would be taken into the account by the copyright societies .
- Control over the copyright societies which is defined under section 35 of the copyright act 1957 stating collective control over the owners whose rights its administered where as foreign societies are exempted from the power of this control as they tends to seek the approval for the same from the owner of the work provided and protected under the societies.
It is basically the duty of the copyright society which would not help the author but would grant the protection to the copyright work given by the author and granting the usage for the same.
Thus it can be considered that the creator of the work or the author of the work and user of the information are head and tail of one coin and the coin here connotes the copyright societies itself and they are actually complimentary to each other.
2.4 TYPES OF COPYRIGHT SOCEITIES UNDER INDIAN COPYRIGHT LAW.
There are 4 types of copyright societies under Indian copyright law which tends to define the different set of work or the group of work to be registered under the society it is administered by it includes the following:
- PHONOGRAPHIC PERFORMANCE LIMITED.
- INDIAN PERFORMING RIGHTS SOCEITIES LIMITED.
- INDIAN REPROGRAPHIC RIGHTS ORGANIZATION
- SOCIETY FOR COPYRIGHT REGULATION OF INDIAN PRODUCERS OF FLIMS AND TELEVISIONS.
All the societies are been defined as follows:
- Phonographic performance limited (PPL): This society works under the subject matter of sound recording. This society helps in administrating the concept of broadcasting. The term broadcasting organizations refers to those organizations which enjoy their rights under section 37 of the act of copyright not under section 14 of the act and they defined under Rome conventions not under the Berne convention . ESPN Sports v Global Broadcast News Ltd. & Ors. 2008 (38) PTC 477 (Del): in this case it was consider that the broadcasting right in respect of telecast of live events like a Cricket match are separate and distinct in terms of right mentioned under copyright in Section 61 of the Copyright Act is not applicable to broadcast reproduction right. The nature of the broadcasting industry is to ensure that the reproduction of the work which include the strict rules and regulations for the same as they grant the license for the broadcasting of certain work. This society is not only engaged itself in the broadcasting rights but also public performance rights and telecasting rights as well over 160 music companies which are member to this society . It came into existence in 1941 and in 1996 it was permitted to carry work in India and grant of certificate to permit the business by the registering in the field of sound recording.
- Indian performing rights society limited (IPRS): This society was formed to carry out the work related to music which would include any words or actions intended to be sung spoken or kind of performance which include musical words or music itself. This society includes the following which include composers, lyricists even the publishers of the music itself which would also intake the sole owner or the representative which tends to grant the license with respect to the premising for the usage of the music work in India or any person within India can use the same on the grant of licenses and it was registered under the act of copyright in the year 1996. Currently the governing council of this society include one of the great composer is Mr. Javed Aktar who is chairperson of the society itself. Another positive step was taken by IPRS as it held the Extraordinary General Meeting on the 9th February 2017 which aimed to replace the Articles of Association. Moreover it was reported that the revamped IPRS has adopted a new working constitution which is fully in sync with the amended Copyright Act. The primary objective being, rightful royalty flow to the right’s owners, while simplifying the license procedure for the end users.
Controversial legitimacy of Phonographic performance ltd and Indian performing rights society ltd: In 2012, the Copyright Act was amended and a series of changes were incorporated. Following the amendment, string of litigation, unfolding of facts and judgments came to the notice.
The said amendment was made in Section 33 of the Act wherein subsection 3A was inserted, the proviso to which stated “every copyright society already registered before the coming into force of the copyright (amendment) Act, 2012 shall get itself registered under this chapter within a period of one year from the date of commencement of the Copyright (Amendment) Act, 2012”, and came into force on the 21st of June, 2012.
Both IPRS and PPL applied for re-registration on 8th May, 2013 and 10th May, 2013 respectively which was only a month prior to the expiration of the granted period for re-registration. However, IPRS in a letter dated 2nd June, 2014 and PPL in a letter dated 20th May, 2014 expressed their intent to withdraw their application for re-registration. Thus, due to failure to re-register IPRS and PPL, the earlier copyright societies were automatically disqualified to operate as Copyright societies under Section 33 of the Indian Copyright Act.
This amendment helps the central government to intervene between the affairs of the society itself and it also help the author of the created work to withdraw out of the same and there would not be prejudice over the author itself .and as per section 35 of the act it would include the equal number of members and owners and must ensure the equal rights provided to the author without any discriminations.
- INDIAN REPROGRAPHIC RIGHTS ORGANIZATION (IRRO): This organization is basically established to link between the foreign users and the Indian authors and publishers which considered that the reprographic licenses are been provided to ensure the publication of the work created by the authors to be printed and digital works to be considered. This society got its registration done in the year of 2002 but it is still not operating which issues licenses of copyrighted materials for reproduction by photocopying, scanning, etc. on behalf of rights holders or the creator of the work. The materials may include magazines, books, and journals supplied by a licensed third party. The licenses eliminate the risk associated with the reproduction of such materials. For the most part, IRRO works on providing reprographic access to users like institutes, photocopy shops, and universities, and providing equitable remuneration to rights holders. And it would not hamper there interest as well.
IRRO’s policies and awareness propaganda have increased the respect for copyrights among governments, users and right holders throughout India.
- SOCIETY FOR COPYRIGHT REGULATION OF INDIAN PRODUCERS OF FILMS AND TELEVISION (SCRIPT): This society deals with copyright protection of the cinematography films and televisions where this society would helps in protecting the interest of the film producers and television producers so to ensure the written expression of their work should not be taken away without any grant of the permission or the licenses associated with it only so to ensure that the legal action taken in case of any infringement is been taken into the account where every author as both the economic as well as moral rights so to ensure the legal validity of the work along with remuneration generated out of it.
LIST OF CASES WHICH STATES THE ROLE OF COPYRIGHT SOCIETIES.
- PHONOGRAPHIC PERFORMANCE LTD VS GOLDEN REGENCY HOTEL
The facts of the case were where defendants are hotels, lounges, bars and restaurants and therefore they tend to play the sound recordings in respect of which the plaintiff has entered into agreement with the owners of the copyrights by signing there agreement and ensuring the revenue collected after the sound recording to be given to the copyright societies . Where in the case the defendants played such music without the consent or obtaining any license from the plaintiff and have therefore leading to the infringements of the copyrights of the owners thereof. Where in the case the plaintiff because of its has registered copyright society and the various agreements entered into with the owners of the copyrights in the sound recordings, the plaintiff files for claiming the injunction for restraining the defendants from playing the sound recordings without first obtaining annual licenses . It is also considered that the plaintiff is entitled to compensation from the defendant while calculating the entire value for the same. And here the plaintiff itself is a copyright society since they tends to protect the interest of the members of the society so the case was filed by the plaintiff i.e. the copyright societies not by the owner itself. that a new year performance of the singers were conducted by the defendant here after and without seeking the licenses for the same even it was for entertainment purposes then also it was important to seek the permission from the concerned society but it was not done as a result the case was filed by the society and the demand of compensation was accepted by the court itself which would not only include the injunction or the compensation but also half of the profit was given to the copyright society if the copyright society enters into the concept of right to sue for contractual basis not copyright infringements therefore court rejected the complaint. This case is mentioned under Manu/DE/0942/2008.
INDIAN PERFORMING RIGHTS SOCEITY VS KOLKATTA KNIGHT RIDERS
In this case it was considered during the opening ceremony of the ipl match the performances were conducted where the owner of the team Mr. Shah Rukh Khan came up with the performances but not only his songs but also the songs of other films where the songs weren’t belonging to him still he performed on the fourteen songs out of which few were not his songs as a result the case was filed against the team by the concerned society and accordingly the injunction for the same granted to the society and then only to work upon what is important to understand that there is copyright infringement for not only playing only the defendant play tracks but also other movies play track so it is important to considered that matter is yet to be decided.
CHITRA JAGJIT SINGH VS. THE INDIAN PERFORMING RIGHTS SOCIETY
In this case the facts of the case where at siri fort auditorium a concert was organized in the year 2016 and the was titled as ek ehsaas jagjit singh live in concert. As the name of the concert tends to depict the live performance by Mr. Jagjit Singh and he was passed away in year 2011. where the advertisements tends to mislead the information stating that he will tends to perform live all the songs he tends to have played over the past 20years with live band performances. It was organized by IPRS and Panache Entertainment Private Limited on the occasion of his 75 birth celebration occasion. However the plaintiff his wife herself tends to the file the case on the following issues that were the Indian performing rights societies tends to issue the licenses despite of the singers presence is not no more and the another thing that was noticed was that, the organized concert tends doesn’t provide her any kind of royalty and incentives for the songs and recordings been used of late singer which had lead where intellectual property rights to be infringed along with that the major issue was of publishing the work in spite of the work was not included under the copyright societies under the copyright act under Indian law because the registration of the late singer was lapsed in the year of 2013 where an application was received by the his wife and then she didn’t applied for the new registration thus they have no right to work or publish the same without seeking the consent.
It was held that in 2016, Delhi High Court restrained IPRS from granting any license in respect of the works of Jagjit Singh and also from recovering license fee from any third party in respect of the works, though it continued to collect license fee irrespective of the order. This case is landmark in the sense that for the first time court considered that IPRS is not competent in issuing license and collecting license fee, in furtherance of the decision of the court in the case of Novex Communications which was unclear on the standing of unregistered societies. The Court held that IPRS cannot claim to function as a company when it is issuing licenses in the capacity of a copyright society and hence, cannot issue licenses without being registered as such under the Copyright Act the amount of the compensation was made around about the 5 lakhs as a compensation and it was since for the charitable purposes it was considered to be organized and then the advertisings depicting the information mislead were discontinues and it was considered one of the most essential and important part of the cases where the societies have no right to use the author material for the commercial purposes without getting a consent from an author itself or his or her legal representative. This case was held in year 2016 given under Manu/de/0917/2016.
CASE: ENTERTAINMENT NETWORK (INDIA) LTD V M/S SUPER CASSETTE INDUSTRIES ((2008)13SCC30).
In this case the discussion was made on the section 34 of the Indian copyright act which states that copyright society tends to have a right to step into the shoes of the author whose work is been used without the consent or any royalty was not given . in the case it was held that supreme court has provided with the provisions which are governing copyright societies provisions in the form of administering the rights and compulsory licensing but the most important aspect is to understand that whether the copyright will have a role to play in the expanding area of the copyright provisions by the copyright societies it is important to understand the intention of the legislature intention the court stated it is implied from the provisions which are made and which tends to ensure that right to sue did not require to express authorization in the copyright act.
Where the bench of the judges tends to decides that right of copyright societies to sue in the cases of infringements because the enforcement mechanism and the right to grant the licenses or any other form of fee to be generated is entirely a different aspect.
INTERNATIONAL PERSPECTIVE AND CHALLENGES RELATED TO COPYRIGHT SOCEITY WORLD WIDE
In this chapter the concept of copyright with respect to the international perspective would be taken into the account and how they are different from the rules and regulations formed for the copyright society in Indian context is different and it would ensure inculcation of new things and opportunities for the same.
This would include an introduction to international perspective of copyright society which would deal around the treaties which are established globally and would ensure the complete assurance of rules that made revolve around the guiding measures given by the treaties countries are signatory to it. According to the concept it will create some what kind if difference with respect of it and also ensure promote the interest of the author.
INTRODUCTION TO COPYRIGHT AS PER INTERNATION LAWS :
Copyright is the most important part of intellectual property rights where it helps in biding all the countries together being a part of any kind of international regime and would ensures the efficacy and efficiency by making the .laws provided by the international regime as well.
The concept of copyright for every country is same only where the main and objective is to strike a balance between the author his work ad the claimant who actually needs an information to give something new to the world itself. it helps in the protection of the copyrighted work and would ensures that rules whether it is developing countries or the developed country would revolve around the guidelines given for it .
3.1: CONCEPT OF COPYRIGHT SOCIETIES
Copyright societies are an organized body for providing licensing and managing copyrighted works. Without copyright societies, it would be impossible for users like restaurants, malls and large events which would also include the original work of the authors and creators as well to collect licenses from individual copyright holders and negotiate terms with them. Copyright societies negotiate prices and create tariffs on behalf of the authors that they represent and balance the power between the users and the copyright holders. The role of copyright societies are especially important in industries like the music industry, where authors and owners of copyright are often placed at a disadvantage. The music streaming revolution was considered as an attack on the power imbalance in the music industry. For example: the evolution of technology and influence of music aggregators lead to the introduction of applications are like Spotify, Apple Music and Pandora but the owners of these application need to apply for the consent of the copyright societies which are authorized with the same subject matter do to ensure the protection given to the creators, composers and singers of the music industries.
3.1.1: ROLE OF COPYRIGHT SOCEITIES IN COUNTRIES OTHER THAN INDIA
Copyright law is territorial in nature, but these property rights are protected in multiple countries through international treaties like Berne convention and trade related intellectual property rights. Apart from licensing, copyright societies monitor the use of copyrighted works assigned and ensure that the copyright holders are fairly remunerated for such use. In order to monitor the use of copyrighted works abroad, societies enter into Memorandum of association or international licensing agreements with other countries in the industry and exchange information regarding the use of copyrighted materials. Collecting societies can act as a blanket of licenses, which helps in ensuring the interest of authors and the stipulated time period for which it is provided. Where a broadcaster with a single annual authorization includes thousands of songs owned by thousands of composers, lyricists and publishers. The societies can also sell individual licenses for users who reproduce and distribute music for the same. For example, apple must submit the download reports for the it tunes which are used to determine their royalty payments.
This acquisition is guided by the legal regime of the countries .Once rights are acquired, the copyright society then has to collect data of uses of copyrighted works. The processing of this data will enable the copyright society to not only play its role but would ensure work of its functions, including the detection of unauthorized use, negotiation of licenses, collection of remuneration and distribution of collected remuneration amongst the members of the copyright collective on the basis of collected data.
THE CONCEPT OF THE COPYRIGHT SOCEITIES HFLPS IN THE EFFICIENT AND EFFICACY OF THE WORK BEING PROTECTED AND PROMOTED AS WELL USED BY THE COMPETENT USER
3.2: COUNTRIES WITH THEIR DIFFERENT FORM OF COPYRIGHT SOCEITY REGIME OR COPYRIGHT COLLECTIVE MAGEMENT ORGANIZATIONS.
The concept of copyright societies refers to the lawful establishment in form of a legal entity and it would work according to the legal rules followed related to the copyright laws of the different countries. it is basically a management system which helps in providing the information not restraining limited at the national level but also at international level as well.
The digitalize environment is basically playing an important role in achieving the goals of providing and protecting the information for the same and is an important part of intellectual property rights and would act as a stepped stone for upcoming creations.
The biggest example of the this kind of work is broadcasting the remixing of the music where the alteration or even the additions in the songs been already used are taken after being granted to use for the same and it would also include the broadcasting of English movies in Hindi or to take the story line from the Hollywood and is introduce in bolly wood but only after the grant of lenience by the concerned society oriented to the subject matter.
The following countries follow different kind of approaches and in different forms as well:
Role of copyright societies including acquisition of rights and dispute settlement
Countries following the approaches
Pros and cons
|Legal status of copyright societies||
Monopolistic approaches and competitive approaches
Countries which tends to follow the approaches are France , Belgium Netherlands and china
Since these countries considered copyright law not only being territorial but also negative right as well and would ensure the development of concept of originality would help in providing better to the world by following the approach of competition which off course depends on the effectively and efficiency in certain cases by the countries.
|Acquisition of rights in copyright societies.||
Indemnity approach and legal presumption for mandatory licensing
United kingdom and Germany following the concept of indemnity approach where as china Canada and nomadic countries
where the concept of indemnity approach states the protection against any infringement related to copyright work and it is actually effective where as the latter one ensures the balance between the rights of the owner and the user of the work who is permitted to do so or use it.
|Dispute settlement (an important aspect of the copyright societies).||
Authorizing special tribunals for arbitration and dispute settlement so to ensure the protection given for the copyrighted work.
United kingdom and Germany
Developed countries tend to have a dispute settlement redressed cell which actually cost effective with enforceable decision.
|Administrative intervention and arbitration||
The role of copyright society plays an important role for the administrative work and arbitration for settling down the disputes
Highly effective since it would not only be there for the interest of the society members but also for the concurrent users as well.
|Controlling anti competitive activities||
The concept of competition and its activities include actually taking the actions into picture when it comes to the countries development but it has to be done in a manner that the creation wouldn’t hamper the growth and progress of other countries as well which would even include the limitations on the right assignment and termination of contract on the basis of licenses
United states of America and European union
It actually helps in the achievement of the fairness as well as no discrimination to the members of the society to be a part of the society and would also help in the development of the authors and would promote their works as well.
The developed country like United Kingdom it tends to have various copyright societies defining:
- Performing rights society (PRS): which would help in the protection of the rights of the publishers and would ensure the copyright works to be protected. It generally includes authors, publishers and composers.
- British association of pictures libraries and agencies (BAPLA): where this society helps in storing the originality of the work which is following the subject matter which would include the world’s largest library and would help in the promotion and development of the country.
- Authors licensing and collective societies (ALCS): This society is formed under United Kingdom which helps in the protection of the work which is written by the authors and fairly providing the compensation for the work either been mentioned in the public domain or is broadcasted any where it protects the articles and the writings of the author.
- The mechanical copyright protection societies (MCPS): This society tends to work in the favor of musical works production and recording of the elements which are related to music works only which include not only the singers but also the lyrists and other composers as well.
Similarly the country like Canada tends to have some of its own copyright societies that are:
- The Canadian screen writers collection societies (CSCS): this cooperative society is nonprofit organization which is based on protecting the work of the screen writers and the televisions writers as well and these societies tends to include any kind of claim to be collected accordingly and works with respect to the European legislation as well.
- Society for reproduction rights of authors, composers and publishers in Canada (SODRAC): it is the society which helps in ensuring and administrating the Canadian and foreign creators of the artistic work. It basically deals with the departments related to the artistic work and it depends upon the rules and regulation which they tend to follow of the copyright law. it includes not only the work related to arts but also include telecommunication , audiovisual and multimedia and accordingly the distribution of the royalties and incentives which are been paid for the authors and users who tends to use their work and would lead to the issuance and effective working as well.
- Recording industry association of Japan (RIAJ): This society is developed in the year 1942 in Japan only this the nonprofit organization which is there to promote the cooperation of phonogram producing industries in Japan and it facilitate the diffusion of goods phonograms and fair utilization of the resources in the society so that it would be useful for the public to use the same and it also include the royalties and incentives which are been given to the individuals and then also it helps in ensuring the gap between the claimant and the author of the work.
The major difference that exit between the foreign societies and the Indian societies are that in the latter one the authors have a collective control over the copyright society unlike the former one is exempted from the same it is obtained by seeking the approval from owners for the distribution, fee or utilization of the remuneration
There are copyright societies in different countries but the work is to grant the remuneration and royalty and it helps in making decision making quite similar and they actually play role in the protection from infringement being caused to the individual.
Where every country has its own rules and regulations and they need to world on the guidelines provided by the international conventions and treaties related to it so to ensure that they are including the essential elements which are required for the same and it would helps in the benefitting the nation growth , authors interest and people interest as well.
3.3 NEW ISSUES AND CHALEENGES FOR COPYRIGHT SOCEITIES FOR IPR PROTECTION
It is way too important to understand what actually the issues and challenges are which are been faced by the creators or the authors irrespective of the fact whether it is international perspective or the national perspective. Earlier it was the basic guidelines which tends to ensure that all the laws which are made according to the country growth and development are abide by the guidelines provided by the trade related intellectual property rights and they are made in manner so to promote and balance the interest and growth of the society and individual makers of the creation.
Where the intellectual property rights are considered as a negative right which would led to monopoly approach of the owner or the creator of any kind of written expression or the invention Where the Copyright law has an important part of the intellectual property, the copyright not only protects the subject matter as provided by the Act but it also Acts as a shield for other intellectual property if not protected under those intellectual property like the design does not protect the expression of an idea of design, but only protects the design in two dimension and three dimension, therefore this expression of design can be protected under the copyright. Another protection is when the artistic work of the owner cannot be protected under the trademark it can be covered under the copyright law, like the motion pictures or logo which have no provision under the Trademark Act of 1999 can be protected under the Copyright law.
There are many challenges faced by the copyright societies related to the digitalize world
- TERRITORIAL JURSIDICTION: The intellectual property rights are considered as negative rights since they have lead to the certain issues related to it. the concept which states that what all rules and regulations that are made leads to the working of the nation and it is not applicable to the other nations because the facts circumstances and other changes of a nation might not be similar or same with respect to other nations . It is important to understand the laws made by one country might not be same with respect to another country that is why whenever any kind of communication or any invention needs to be shared it is important to be taken into the account in the form of contractual basis.
The concept of copyright as a law would be considered as a monopoly right which ensures the exclusive rights related to the author itself it is important to safe guard the interest of the author and to ensure the entire working in an effective manner so to promote the progress in various fields. The main reason behind it is that holder of IP rights accorded protection in a state cannot enforce those rights in a foreign state within whose territory the infringer is located and the laws of which do not acknowledge the activity to be an infringement. Further, all of the above assumptions change in the context of transactions over the internet and even
more so when the products or services themselves are not in physical form but in a virtual world. Also, in a borderless cyber world, the products and services can be transmitted easily across countries in a flash.
In simple terms lets taken an example The product is a copyrighted song in the MP3 digital format. The transaction begins with the ‘uploading’ of the product in one territory, and might be chances that server in another, advertisement for sale on the website of a service provider in a third country, being ‘bought’ by a click and pay service hosted in yet another territory, and finally ‘downloaded’ in another territory. Transaction turns out to be a sale of a pirated product which per se is an infringement of the copyright in the song in question. Does the court in each of these territories have jurisdiction to entertain the dispute? The notion of jurisdiction is rooted in territoriality from the point of view of both the court which can properly assert jurisdiction and from the point of view of the law that should be applied while deciding the dispute.
And this complexities comes into picture when the role of both the courts and societies are need to take into the account since it is purely a part of digitalize world something which is send on the click of a button has to be seen and how internationally the issues needs to be resolve would be taken into the account as well so the protection of work and interest of author and usage outside the territory becomes an important challenge for the copyright societies so to full fill their objectives or not .
IDEA IF NOT IN WRITTEN EXPRESSION : The main concerned is about the idea not in written expression the main problem behind the issue is that it in order to define it original it has to be taken into the form of written expression and if it is not then it would any how leads to no fruitful award for the idea been generated into the heads of the owner who had a thought process and the copyright society would not play an important role it would not look into the account in such cases as there is no use of awarding the thought process unless and until it is in a written form and it would actually leads to discrepancies. It is important to consider that it has to be original and should be in the written format other vise it can be copied and infringement wouldn’t play an important role since it wasn’t in written format and even the copyright societies would not provide any kind of protection to those people not even authors who only have thoughts not a proper format for the written purpose.
PUBLIC USE VS PRIVATE USE: Traditional copyright laws, especially the act of 1957, there is a distinction provided between the content in public and private domains. This distinction allows a person to reproduce copies of copyrighted content in the public domain, with prior permission from the author or original creator. However, the cyberspace makes such distinction difficult. Since one person can transfer material to several people through the internet, the copyright laws regarding public and private spaces have become difficult.
Even it is a negative right and it ensures the monopoly over the work created and would lead an exclusive rights related given to the creator but if it is not able to full fill the demands of the public and it would the decision of the government to revert it with providing publically available to all and would lead to the concept of compulsory licensing which actually states that the out of the will when the creation is used for the public requirement irrespective whether the consent is given by the author or not and against which royalty is provided. However Copyright society has no role to play since the authorization of copyright society itself is given by central government. This actually leads to the creation being available to the public but against the willingness of the creator itself. these norms are provided in order to full fill the requirement of the public and would helps in ensuring the new development since it is given to the public freely where copyright societies cannot deny the concept of compulsory licensing against which the remuneration decided in the form of royalty is being provided to the author or the creator and it has to followed so that objective of public interest has to be balanced and leads to availability to the public .
DIFFERENT COUNTRIES DIFFERENT RULES: The concept of countries depend upon the territorial rules that they posses according to the international treaties they have signed which tends to develop the rules and regulation according to development and other prospects of the field of intellectual property right . This is biggest challenge for all the countries inter contractual agreements to be developed and made for the inventions and creations need to be shared or developed between the countries need to be considered in a such a manner that what all laws are applied . The copyright societies of two different countries in needs to come into action to play a role so to ensure the creation created by the author needs to be used when where how and to what extent any remuneration or royalty needs to be taken into the account . The territorial jurisdiction issue stated is majorly for the intera aspect of the country however this issue deals with countries their ties and international conventions signed by other countries and somewhere the objective of balancing both interest of the countries tends to get hamper. The main reason behind the issue is that the development stage and different laws of
countries with respect to intellectual property rights , where the role of copyright society would be applicable in both the countries when there is a mutual understanding in decision making and most importantly there has to a copyright society for the protection of interest of authors and permitted users as well.
ONLINE PIRACY : With the development of latest technology, a new kind of robbery has now started doing the rounds of the legal world. Online piracy is truly a menace to the cyber world. In India, this issue is seen especially in the movie industry. Since India produces more than 1000 movies per year, the cases of online piracy are always on the rise. Online copyright infringement is done not just by people with illegal intention but also some of them aren’t aware about the act being criminal or not .An act of illegally reproducing or disseminating copyrighted material, such as computer programs, books, music, and films. Although any form of copyright infringement can and has been referred to as piracy this article focuses on using computers to make digital copies of works for distribution over the Internet. The laws on copyright protection are clear and the penalties are heavy. The prevalence of piracy in face of these potential penalties is due to the fact that individuals do not see piracy as inappropriate let alone illegal, instead viewing it as ethically acceptable due to the core execution of piracy being that it creates a copy of the file, thus nothing tangible is being taken away from the original owner. Additionally, despite the massive realm of copying and sharing digital content, consumers who pirate are more willing to pay for legal content when the content is consumer friendly. Copyright is a kind of intellectual property right which helps the creator in his creation (movies, songs) the right to get paid. They are also given control of the distribution of their product. Piracy basically occurs when a person copies, distributes or even sells a material, without the express permission of the creator of that product. Such distribution and sales online can lead to a huge loss of revenue and is a hard thing for the original creators to go through. The problem is all the more enhanced because several people are either unwilling or unable to pay the right sum of money for it. Piracy is a form of online copyright infringement, wherein games, movies, software, etc are sold and distributed without the knowledge or permission of the original creator.
According to this legal issue it had lead to many other issues also which include the territorial jurisdiction internet being used where ever it there is a source available, where internet is an intangible space as a result it is difficult to predict that where it is been used and how it is taken into the account and it is difficult to predict that the jurisdiction and hence It could be decided based on the origin of the matter or It could also be decided based on place of storage, or even in the place where the material is finally used or displayed. It is not necessary that what constitutes illegal copyright infringement in one country, would be illegal copyright infringement in another country too. Sometimes different countries can even have conflicting laws as a result it is difficult to punish the individual while dealing with international laws.
There are several legal issues with online copyright and piracy laws in India. The technology is ever-growing; it becomes important to focus on these issues so that offenders are not able to escape the punishment. Where it is important that the laws of the countries to be made in a such a manner so to ensure that implementation and the interest of authors to be maintained and here the guidelines to the copyright society is need be given so to ensure the working of laws and the objectives are fulfilled .
There are many of issues with online copyright infringement laws in India. The challenge is all the more difficult to deal with because of the rate of growth of new technology. The judiciary is taking its time to deal with such cases and to form guidelines about various scenarios in the digital world that can enhance issue like online piracy. the government is taking appropriate measures to keep this growing menace under control. Digital rights management provisions and John Doe orders along with various new measures are being taken by the government. Piracy and online copyright infringement can be reduced with awareness, polices and a few precautions. It is also important to be in sync with the various piracy laws of different countries. The existing Indian legal framework when it comes to online piracy is undoubtedly inadequate.
IT IS IMPORTANT TO UNDERSTAND THAT BE IT NATIONALLY OR INTERNATIONALLY EVERY COUNTRY TENDS TO DEAL WITH THE COPYRIGHT INFIRGEMENT AND THE STATUARY BODIES LIKE COPYRIGHT SOCEITIES TENDS TO ENSURE THEIR BEST TO FULL FILL THE OBJECTIVE GIVEN AND ENSURING THE INTREST OF THE AUTHORS AND END USERS
ROLE OF COPYRIGHT SOCIETIES UNDER IPR PROTECTION
The term critical analysis states that an evaluation of the research done on a given topic so to ensure the pros and cons of the research paper and what knowledge actually is attain by the individual which tends to provide the research paper .
In the research paper it is important to understand the key element which states that intellectual property rights and the role of copyright societies in order to understand the role it is important to understand what actually intellectual property right is :
“The creation of human intellect is known as intellectual property which ensures that the mind is a place which posses the knowledge where the ideas or the thoughts are need to be given a concrete shape and even in form of process so to ensure the protection would be attain.”
The intellectual property rights refers to the exclusive rights that are been given to the individual which tends to introduce something new to the society and would helps in the development of science and technology it is important to protect what is created by the human intellect so to ensure the complete development and would a sure the exclusive rights to the could not hamper the development of the creator and would give the exclusive right when to be given and whom to be given. Intellectual property rights are the legal rights that cover the privileges given to individuals who are the owners and inventors of a work, and have created something with their intellectual creativity. Individuals related to areas such as literature, music, invention, etc., can be granted such rights, which can then be used in the business practices by them. The creator/inventor gets exclusive rights against any misuse or use of work without his/her prior information. However, the rights are granted for a limited period of time to maintain equilibrium.
The concept of intellectual property rights need to understood so to ensure the protection of the cultural heritage of the countries. Where every country has its own category of intellectual property rights.
The concept of intellectual property rights and their protections are complimentary to each other once something new is created it has to be protected depending upon what kind of creation or invention it is whether it is patentable or it is a design graphic or any other kind of element . Every intellectual property rights have their own pros and cons related to the creation or the invention which is been made.
Successful implementation of the TRIPs agreement has a number of pre-requisites. The important ones being legal, administrative and institutional reforms, appropriate research investment, and first rate science and technology capability. Provided the IPR protection is adequate and effective (worldwide), the TRIPs accord can promote innovation, transfer of technology, foreign direct investment, use of genetic resources and environmental protection.
The concept of copyright is understood by the evolution it has underwent in the history to form an accurate Act which comply with the contemporary needs of the authors of the copyrighted work. Copyright is one of the Intellectual property rights which ultimate aim is to protect the creator or author or owner of the work for which they have invested their time, money, skills and which is reflection of their personality. Such creation of intellect needs to be protected and the author of such work should be provided exclusive right to use his own creation and to reap economical benefit from it. recently it includes standing committee for copyright (SCCR) is the forum where WIPO member states and observers meet to discuss, debate and decide on issues related to the development of balanced international legal frameworks for copyright to meet society’s evolving needs.
The copyright societies refer to those statutory bodies which ensure the protection of the copyrighted work. The term copyright is different from other intellectual property rights where there is a concept of automatic protection and it is defined through the Berne convention . the first international convention which relates to the concepts of the copyright law and it helps in ensuring the subject matters which can be a part of the copyright law and soon after that it changes with some of the amendment and it helps in ensuring the new elements and would lead to the development of the copyright as law in various countries.
The development of these societies was made in a manner to act as link between the copyright owner or the creator of the work and the end user who needs to use the information so to ensure the development of the nation as whole and it was possible only when the incentive for the work provided by the authors to be given and it was difficult for them to always keep into the account who tends to use what all kind of the work and which creation is used by whom all the dupes are avail for each and every copyrighted brand itself and this way it is important that copyright societies helps in ensuring the strength of the creators and the user by giving them by the means of licensing and the assignment where the concept of compulsory licensing and fair dealings something which is act as an exception to the copyright law by the government itself. Every subject matter tends to have their own kind of copyrights societies and their main role is to full
The objective of every intellectual property righted work so to strike a balance between author’s interest and the user interest as it will act as an stepping stone for further upcoming creation using the knowledge and skill so to ensure the development for the same.
In situations where it is critical to protect an author’s rights, many countries provide copyright registration, which allows authors to register copyrighted content with a central agency. This makes it easier to prove ownership of content if it is ever disputed.
Copyright provides a helpful means of protecting original content. It serves to give people credit for the work they do, which is something we can all appreciate. Therefore, if you ever consider copying someone else’s content, think of how it would make you feel if someone copied your original work and published it as their own. If you ever would like to use another person’s content, make sure to ask the author for permission first. And always give credit where credit is due.
There is off course differential criteria of laws procedures and regulations related to the countries as they might be at different stage of developing or have already developed where every country tends to provide best of the creations and would ensure the protection for the same. Where the copyright societies everywhere plays the same role by acting a linkage between the user and the author itself but when there is a case of international agreements or the contracts between the countries it is important to keep in mind the conventions and the treaties which both the countries have signed or not and what are the guiding perspective and the laws associated with the information being shared or the creation being provided to them. Copyright protection in all countries that are parties to the Berne Convention for the Protection of Literary and Artistic Works, or parties to the Universal Copyright Convention (UCC). Most countries belong to at least one of these conventions. Members of the two international copyright conventions have agreed to give nationals of member countries the same level of copyright protection they give their own national. Publisher has discovered that bootleg copies of one of its multimedia works are being sold in England. Because the United Kingdom is a member of the Berne Convention and the UCC, Publisher’s work is automatically protected by copyright in England. When Publisher files a copyright infringement action in England against the bootlegger, Publisher will be given the same rights that an English copyright owner would be given.
For example : where the developed country tends to have technology that is way better then the developing country by the creation is created by the latter country so to ensure the proper working of the countries it is important to provide the same . in the era of globalization something known as inter dependency plays a vital role for the development of not only one nation but the nations as well. Where globalization helps in reducing the barriers and all sought of difficulty so to ensure that leverage is given to all the nations which actually adopts the changes.
The concept of copyright societies is exactly the same there was as such no existence of the copyright societies which help in the development of the intellectual field of any nation. Later on it was realized that any how there is need of a statuary body which would help the creator or the author of the work given a protection. The incentives in the form of the copyright rights provided to the author tends to play an important role which ensures that their skills would be retain with
The only any how it is important to understand that the rights like economic moral and even the administrative rights in the form of remedy would be provided to the individuals.
Where copyright societies tends to act as a statuary bodies which are authorized by the central government only if there registered as per the process provided under the Indian copy right act 1957 so to ensure that every subject matter which can be copyrighted should have separate copyright societies for them and accordingly the concept is at international level as level they are known as Collective management is the exercise of copyright and related rights by organizations acting in the interest and on behalf of the owners of rights.
For example, an author may allow his/her work to be performed on stage under certain conditions, or a musician may agree to have a performance recorded on CD. However it can be impractical for an author or a musician to contact every single theater or radio station to negotiate licenses for the use of their work. This is where collective rights, and in particular collective management organizations (CMOs).
My research work revolves around the basics of the copyright societies and their actual role in the protection of the intellectual property rights. These societies are more or less helps in the protection of the copyrighted work which leads to the way out for the users to use the criteria or the information in more authenticated way so that it would not lead to the infringement of the work which is provided by the author.
The concept of piracy is considered as one of the most important issues while dealing with the copyrighted world since the right of reproductions and numbers users which tends to use the work without being considered or known to the individuals and it any how effect the creation and the creator itself. these are the set of exclusive rights which ensures the complete right if a creator over its creation unless and until it is provided by the creator only in a form of a consent so to ensure that they are provided something out of giving their creation . However works lacking in originality are not eligible for copyright protection. This includes: works and publications from facts and unoriginal collections of facts, like a telephone directory and items in the public domain. This last one can be tricky, but an example of an item in the public domain is a recipe. This is why five different chefs can all publish apple pie recipes. For those interested in computer related copyrights, freeware cannot be copyrighted. Shareware and original software can be protected.
The critical overview to analyze by providing the issues in the civilization that keeps on changing more and more the more the change is the more it is difficult to take into the account .it is important that every statuary bodies works with the some sort of leverage and some of the other part is in the hands of the authority where leads to the registration of the societies. It is important to understand that the every aspect as the positives and negatives and related to it societies where it is important to understand that it act as a link between the user and authenticated authors but it is important to take into the account that royalty and incentives are taken into the account and but where the perks are there off course the negatives are still availed with respect to stage of developing and developed countries and it would led to disputes also and it is important to also understand government norms related to the exceptions also because any how it important to strike a balance between the authors interest and the public interest as well.
The critical overview of the research paper can be defined as it has to be in a positive manner because after all these societies tends to play an important role in the protection of the intellectual property rights despite of the issues related to the copyright societies it is important to understand that the solutions are need to be defined so that it would lead to an great evolution related to intellectual property rights and it would be helpful for the globalised societies.
EVERY COIN HAS HEAD AND TAIL SIMILARY THE COPYRIGHT SOCEITIES TENDS TO HAVE SOME DISCREATIONS AND SOME LIMITATIONS IT IS IMPORTANT FOR A SOCEITIES TO STRIKE A BALANCE BETWEEN THE INTRESTS OF BOTH THE MEMEBERS AND WHERE AND HOW THE POWER IS NEED TO BE USED.
CONCLUSION & SUGGESTIONS
The intellectual property rights are the bundle of exclusive rights which states that every individual has a right over the creation which is created by them where it is important to understand that the creation created should be protected in the legal framework.
Where every individual has the own ability to predict and acknowledge the things and then to work on the things so that every aspect has to be considered while creating anything out of the creative mind.
My research paper has the detailed version of what actually the intellectual property rights are and how these rights are need to be protected by the role of copyright societies where these societies tends to play a vital role where they tends to act like a link between the end users and authors who tends to use the rights along with the royalty along with other prospective.
The term copyright societies tends to protect only the copyright work and it is where the role of what actually the copyright law is and what is the major provisions under the copyright act for the copyright societies under the Indian law how ever to important to understand that the role of the copyright societies are worldwide and every society has its own pros and cons depending upon the laws they are dignified with. These are also known as collective administrative society which helps in administrating the management and the work so that it is useful in both aspects.
The main task for the societies are to administer the rights that are been given to the owners it is difficult to maintain an eye over the usage of the work by the author itself then it is important for the societies where these authors enroll themselves to keep a better and adequate vigilance over the work been protected and the work been used. The main interest of the authors is there to protect and to reap the economic benefits that been provided to the authors since it is important for the owners to be a part of the international agreements since it is important for the Indian authors to get the benefits from other countries which tends to utilize their work and leads to betterment for both nations since it is important for every nation to be a part of international conventions and then the benefits for using the work should be taken into the account by the societies of the other nations as well. In the same chapter there is also comparison between the Copyright Law of our country and also the Copyright law of the other nations. In the chapter the comparison is between the US Copyright law and the Indian Copyright Law. The definition provide under the section 107 of the US. Copyright Act sates the matter which amounts to the plagiarism or infringement of the author’s rights whereas the definition of the fair dealing under the Indian Copyright Law of India only deals with the category of work allowed under the copyright. But as per the researcher the country shouldn’t hesitate from adopting any law which is preferable to Indian judicial system as the Singapore did by adoption the same provision under the Singapore Copyright Law.
Since it is important for the users to obtain the license so to utilize the work which is been provided by the owners of the work the legal exploitation is easy for users though the means of the collective management administration because then they need not to rush here and there for the work and can directly obtain it from the societies itself the most important aspect is that these societies have been build in by the copyright owners as been prescribed under the act however it is important to consider that these societies are been registered as par the act only and it also ensures that one kind of subject matter to be registered under one kind of society only like where there is literature or something related literary work then would be registered under the name of the one society and where as the musical work or the broadcasting rights they would be registering the users to obtain the licenses in their respective fields itself
It is important to acknowledge not only the copyright societies but also the authors which tends to promote their work on the platform and accordingly the incentives are given to the individuals
Where the authors are always attached with the rights which include the economic moral rights as well it is important to provide the incentives for the creation made by the individuals so that they would lead to the growth and development of the nation and would promote the cultural heritage as well.
All authors are required to agree for licensing and publish when submitting their work. By submitting to the Royal Society and agreeing to this license, the submitting author agrees on behalf of all authors that:
- The work is original, has not previously been published and is not currently under consideration for publication elsewhere; and
- The author has obtained permission to use any material which has been sourced from third parties (eg illustrations, photographs, charts or maps), and the terms granted agree with our requirements (whether open access or not).
Overall the copyright should be an original expression of an author which should be rewarded by the way of royalty or incentives and it protects the work of the author by not letting anyone exploit the work. The copyright is also does not vest in the idea, for a thing to be copyrighted it should be in an expressed form in order to get the protection under the Copyright law. A copyright is a bundle of rights including the moral rights and economic rights and neighboring rights, but a copyright can be also called as split right because they are use or exploited in numerous ways and this is the reason copyright societies tends to come into the existences. . To conclude the thesis it can be said that there is always scope for improvement in anything, so does our law can be serve more accurately if improvised as per the circumstance of the country. The researcher also included some suggestion for the consideration which may contribute in any way for the betterment of the society regarding the laws.
In the recent times the changes which are related to the copyright societies must be taken into account and accordingly because in the development of any law it is important that an implementation and the usage of the law should be taken into the account the changes are good but however for every country there are number of challenges and it would be difficult for all the countries to adopt the same that is why these exclusive bundle of rights is considered as a negative right and it works on different situation and they tends to applied into the account taken into unlike different countries have different basis of the criteria of developing any kind of law accordingly .
Thus in the research paper the most important area of work is the establishment of that kind of a statuary body which any how helped in the protection and working of the societies as whole along with its members being a part of it .
As per the research paper is concerned it has to worked around anyhow in between the copyright creations and the copyrights societies and there has to a mechanism for every type intellectual property so that every creation has its own legal cooperative societies to be protected and to ensure the creations and effective way to be protected anyhow. That is why it is suggested that all the challenges or the legal issues need to be keeping in mind in that there has to be harmonize way to promote societies along with rules associated with it. Where the role of not only the public but also the authors interest has to be keep in mind of for the betterment of the societies.
It is important to understand the true essence of the copyright societies and it would help in the development of the new areas and would ensure the protection of the content and other original elements of the authors and it would ensure the effectively and would help in the furtherance of development . The loopholes that are taken into the account are that since copyright law itself is territorial in nature and would be restricted to the country itself. It is difficult for the complete working and protection of the copyright societies and the content they tends to protect plays an important role in the lives of the users also.
It is important to provide them the further more rights so that it is easy for them to work in a more efficient and effective manner where the lack of power is main reason the authors content is easily available to the people and it would create an imbalance between the public interest and the private interest as well. The concept of copyright societies should be understood in a wider prospective because it will help to understand the true essence or the values of these administrating societies where the individual tends to play a major role. where every country tends to have their own rules and regulations and would lead to the changes to be consider while making those rules and regulations everything has to kept in mind by the legislature or the maker that it would not lead to any kind of gaps or loopholes but the term change will lead to the situation because we tends to survive in a dynamic environment which keeps on changing on and on but the major issue is that it international communication with respect to the copyright laws is way too difficult and it is not easily stand by as a result the work of the authors required to be an effective mechanism which would lead to the efficient working of the copyright societies .it is important to understand that there has to be awareness about the principles and rules as well as a regulations so to ensure that the authors and users are aware about the limitations and exceptions accordingly . Some landmark cases also act as principles for the foundation of the development of the cases accordingly so to ensure the new principles or any new creations to be taken and accordingly to be implemented.
Along with the powers it is important to ensure the transparency to the both that is the users and the original authors who tends to use their own skill and labor with an effective means of intellectual mind as a result there has to be this be protected and used in an effective manner because any hoe the intellectual property rights are negative in nature and if they are negative it would ensure the monopoly of the author but the development and the technology cannot be ignored and for that every new creation act as a stepping stone for further development.
Thus there are few things which are needed to be focused on which are:
- There has to be the establishment of the statuary bodies like copyright societies under every intellectual property right so to ensure the protection of the work which is made by the intellectual skills.
- The wider opportunities and the perspective have to be taken into the account and then to work accordingly so to ensure that the working of these statuary bodies might not lead to any kind of loss of something made out of human intellect.
- People or the authors which are related or their work is a part of subject matter which is need to be protected under the Indian copyright act the protection is need to be made accordingly but it is important so to ensure the entire working and effective awareness among the people elated to the copyright societies .
- The records and registers are need to be maintained and it would be taken into the account so that any kind of loss of information on either parts should be made and it would be easy for the authorities to look into the matter that whether it is a part of the copyright societies or it is already protected or any kind of royalty over the work should be taken into the account.
- The delegation of power should be made to other authorities only if the exiting authorities are burdened with some other majors accordingly and due to the pandemic situation it is impossible to even keep a check accordingly however the system of checks and balances should be made and taken into the account.
- The mechanism of checks and balance should be maintained accordingly and it would be easy for every authority to keep an eye over the other working departments and along with its own users to be considered.
- Since every coin has its head and tail and accordingly it is one of the most important is to understand the cons of the research paper in the form of authorities and accordingly it has to be worked and it has to be taken into the account where has the lack of powers of the statuary body then would lead the uncertainty in the mind of individuals.
- It is important for the the development of the societies as a whole plays an effective role.
- Towards the end, it is important to maintain the essence and balance between the public interest and the private interest of the individuals which tends to use their own skill, labor and other important aspects for the creation of the inventions.
- 1 https://www.khuranaandkhurana.com/2017/08/26/legitimacy-of-iprs-and-ppl
- 2 http://www.legalservicesindia.com/article/417/Copyright-Societies.html
- 1 http://nopr.niscair.res.in/bitstream/123456789/13410/1/JIPR%2017%281%29%2046-54.pdf
- 2 http://www.legalservicesindia.com/article/417/Copyright-Societies.html
- 3 http://ijlt.in/wp-content/uploads/2015/08/1.pdf
- 4 https://www.britannica.com/topic/piracy-copyright-crime
- 5 https://www.latestlaws.com/articles/online-piracy-and-copyright-infringement-issues-and-challenges-
- 1 https://www.tutorialspoint.com/information_security_cyber_law/intellectual_property_right.htm
- 2 https://www.wipo.int/about-ip/en/
Author: Ishani Chhaudha
Amity law school, Noida