Copyright

Analyzing the Concept of International Copyright from Indian Perspective

calendar07 Oct, 2021
timeReading Time: 8 Minutes
Analyzing the Concept of International Copyright from Indian Perspective

The Concept of International Copyright does not exist in the real world. In reality, copyright laws exist on a territorial basis and remain effective in limited jurisdiction. Protection against illicit utilization of work in a nation will depend on the national law of that nation. But, international copyright treaties & conventions have simplified the process of according protection to overseas workers. This enables creators in different nations to access exclusive rights over their work of art worldwide. This write-up pens down the concept of international copyright from the Indian perspective. 

What is Copyright?

Generally, Copyright refers to a form of legal coverage that safeguards the owner’s work of art via a long list of rights listed in Copyright law.

The ultimate objective of Copyright is given below:

  • To incentivize the development of science, culture & innovation
  • To facilitate fiscal aid to the copyright owner for their work of art 
  • To provide access to knowledge as well entertainment for the public. 

Technically, Copyright refers to a form of IP rights, along with the patents and trademarks in all nations, & other creations (such as database rights, trade secrets, right of publicity and the like that might differ from nation-wise. 

Concept of International Copyright

Copyright is a creation of law in each nation, & thus there is no such thing as international Copyright. Nonetheless, nearly 180 nations have ratified a treaty- the Berne convention, managed by the WIPP- that underpins a set of norms for global protection of the creator’s rights. 

Additionally, countless efforts have been made to harmonize copyright law in European nations. However, the differences in territorial copyright laws can pose a challenge for international institutions with workers working in different nations & sharing content with other countries. 

When copyright protection comes into play?

One of the fundamental principles related to the Berne Convention is that of “automatic protection”, which implies that copyright protection comes to effect automatically from an instance a qualifying work is fixed in a tangible medium.

According to bylaws, the term “qualifying work” refers to a 

  • literary work
  • a film, a software program
  • a painting
  • a musical composition
  • or any other expressions of creative ideas

 – but it is only the expression, & not the idea, that is protectable under copyright law.

Neither registration, publication, nor other action is required to avail a copyright protection. However, in some nations, a copyright notice is advisable, and in a few nations (including the US), registration of domestic works is required to counteract legal disputes.

Read our article:Know the Procedure to Copyright a Logo, Design, or Name in India

Understanding the role of International copyright treaties

Various international treaties advocate reasonably rational copyright protection from nation to nation. They underpin minimum norms of protection which each signatory nation then inculcates within the bound of their copyright law. The concept of international copyright should begin with the fundamental foundation of the national copyright laws.

Berne Convention

  • Well-known and the essential treaty 
  • Comes in effect in 1886 (but has undergone so many revisions ever since) 
  • Ratified 180 times
  • Establishes minimum norms of protection
  • Nature of works protected
  • timeline of protection
  • Scope of exceptions
  • Restrictions  
  • Principles such as “national treatment” (works originating in one signatory nation are accorded the identical protection in the other signatory nations as each grant to functions of its own nationals)
  • Principles such as “automatic protection” (Copyright exists automatically in a qualifying work upon its fixation in a tangible medium & without any required prior legal formality).

WIPO Copyright Treaty

  • Officially introduced in 1996
  • Renders clarification that the computer databases & programmes can be vested with copyright protection
  • Recognizes that the work’s transmission over the web and identical networks is an exclusive right within the scope of Copyright, possessed by the creator
  • Classifies as copyright infringements both;
  • The circumvention of technological protection stipulates linked to works
  • The removal from a work-related to embedded rights management information.

The Agreement pertaining to Trade-Related Aspects of Intellectual Property Rights (aka TRIPS) 

  • Officially introduced in the year 1996
  • Managed by WTO, aka World Trade Organization
  • Entails various provisions pertaining to the enforcement of IP rights
  • Suggests that national laws have to leverage rational enforcement of IP rights and elaborates in detail on how enforcement should be tackled.

These treaties do support the concept of international copyright to some extend.

What can be protected under Copyright Protection? 

  • The Berne Convention suggests that the copyright protection in all signatory nations should encompass “literary and artistic works” that also include every production in the scientific, literary & artistic regime, whatever may be the form or mode of its expression. 
  • The list of work categories that stand eligible for copyright protection and the definition & scope of each of them might slightly differ nation-wise. However, it generally covers novels, essays, scientific articles, short stories, plays, poems and literary works; painting, drawing, sculptures, photographs and other 2D and 3D pieces of art & other audiovisual works; software and others. 

Validity of copyright protection 

  • The validity timeline of Copyright may differ nation wise as per the nature of work. Though Berne convention has a minimum duration of a copyright in a literary work equivalent to the creator’s life + 50 years, in most scenarios & nations today, the general norm is that Copyright in dramatic, literary or artistic works serves the validity period equivalent to the creator’s life and additional 70 years after the demise of the owner. 
  • In some nations, specific norms may apply to add or alter the general rule of life + 70 years. Additionally, some nations have different copyright norms that were in existence prior to the adoption of the general rule. For instance, the US did not leverage this rule until 1978. 
  • These differences in territorial laws indicate that in some scenarios, a particular work of art can be copyrighted in some nations but out of Copyright already available in the public domain. 

What is the meaning of Public domain in the context of Copyright Law? 

The public domain is a work that 

(i) no longer adheres to copyright protection (that is, where the Copyright does not exist)

(ii) Belonging to works category that does not come under the copyright law.

Additionally, in some nations (including the US and UK), government works are clearly defined by law as being available in the public regime from the moment of their creation.

Therefore, the difference in how territorial copyright law defines the timeline of Copyright and enlist the work categories eligible for protection, result in different definitions of the public regime on a nation-by-nation basis.   

An Overview on the Different types of rights

The majority of territorial copyright laws recognize two types of rights within Copyright: 

  • Economic rights
  • Moral rights

Nations in the Anglo-American tradition, including UK, US, Australia, Canada, and NZ, tend to reduce the existence of moral rights in favour of the importance of economic rights in Copyright. 

Economic rights recognize the holder’s right to use, prohibit the use of, or authorize the use of, a work, & to underpin the conditions for its use. Different uses of a work can be treated independently. That indicates that the creator can deal with each right on an individual type-of-use basis. Economic rights generally entail: 

  • The reproduction right (for example, producing copies via analogue or a digital means), 
  • The distribution right via tangible copies (for instance, renting, selling or lending of copies),
  • The communication right to share information publically via different means, including web and public display
  • The transformation right (encompassing adaptation or translation of the text work). 

Moral right is equivalent to the idea that a copyrightable work is an expression of the humanity & personality of its creator or author. They include: 

  • The right to be recognized as the creator of a work, 
  • The right of integrity (meaning, the right pertaining to forbid alteration or distortion of the work) &
  • The right of initial divulgation (public sharing) of the work. 

Moral rights are not always transferrable by the owner to another party, and some of them continue to serve their purpose without being expired in certain nations. 

Exceptions and limitations pertaining to Copyright 

Exceptions and limitations to Copyright are specific scenarios as recommended by the law where the general principle that the owner’s prior approval is mandatory to leverage work does not apply. This means that the public interest of administering a balance between the owner’s interest and those of third-party users, copyrighted works may in some scenarios be used the consent of the owner. 

In general, the exceptions to Copyright are exposed to a three-step test initially mentioned under the Berne Convention & repeated in a number of other global agreements. The Berne Convention states that an exception or limitation pertaining to Copyright is permissible only when 

(1) It encompasses only a special scenario

(2) It does not hamper the normal exploitation of the work

(3) It does not illogically prejudice the creator’s interest.

Within that norm, the exceptions and limitations differ considerably nation-wide in number and scope, who is eligible to benefit from them, & whether or not they encompass a liability to compensate the creator whose rights are so limited. 

What do you mean by fair dealing and fair use? 

  • While most of the nation specifically recognizes the exceptions and limitations to Copyright, the UK and US have created a long list of exceptions in their respective statutes.
  • In the UK[1] and many of its former colonies, the notion of “fair dealing” encompasses a considerable scope of uses where prior approval is not required. The criteria for what is taken into account to be fair dealing are cited in the law in each of those nations, without citing every specific use. 
  • In the US, the notion of Fair use encompasses certain uses that, on balance, are considered not to infringe the right of the copyright owner adequately and or are considered to serve a vital public-policy goal, which they are allowed with the consent of the owner. 
  • The factors assessed by the court of law to check fair use are inculcated in each nation’s statute and case law.

Obtaining authorization to leverage a copyrighted work 

Copyright law states that buying a copy of work, such as a scientific journal, book, newspaper, or a magazine, does not render the buyer the right to make use of any copyright-sensitive of that work-meaning that, even though the purchased copy may be read, and maybe re-sold, destroyed, the work available in work may not be reproduced or used for any other purpose or otherwise use within the scope of copyright law. 

In the situation where the use of copyright-sensitive needs to be made (such as reproduction), authorization can generally be availed: 

  • Directly from the creator of the work
  • From an outsider that has been vested with the rights of using owner’s creativity. In some nations, that authorization is accorded by law (a “legal license”) in return for a designated payment.

Collective licensing at an international level

In many nations, Copyright collective management institutions (broadly referred to as collecting societies or CMOS)

  • License large-scale utilization of work of art on behalf of a larger number of creators
  • Gather pre-determined royalties for those uses
  • Distribute the said royalties back to the creator

There is a collective management institution that has expertise in different categories of work of arts & creators. In the regime of text & image-oriented work, these entities are called Reproduction Rights Organisations (RROs). 

They generally deal with the licensing of secondary uses of journals, magazines, and newspapers- in both physical and online formats- and in some scenarios also with visual content such as photographs, motion pictures, & illustrations.

Copyright Clearance Centre (CCC), the parent body of Rights Direct, comes under RRO. There are RROs in nearly 80 nations, ranging from hi-tech organizations with a track record of start-up organizations in developing nations. Most RROs are directly connected to the International Federation of Reproduction Rights Organisations (IFRRO).

RROs across the world operate with different licensing models, either required or allowed by their local copyright law. The IFFRO’s quick guide renders three types of RRO licensing models

  • Voluntary collective licensing
  • Voluntary collective licensing with legislative support
  • Legal licenses

Some RROs render a horde of features from the three licensing models. RRO licenses can also vary in the types and number of work they encompass, the types of uses they permit, & their geographic scope.

Conclusion

The concept of International copyright simply means that it offers comprehensive legal coverage to creator’s work throughout the world. The protection prevents third parties from copying the work of art in a particular country. However, many nations facilitate protection to overseas works under some conditions, which have been eased out by international copyright treaties and conventions. In the year 1999, the International Copyright Order underwent strategic formulation in order to facilitate protection to the creator of the foreign copyright works. In general, there is no concept of international copyright & you ought to safeguard your work globally via aforementioned techniques.

Read our article:How to Copyright a Soundtrack in India?

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