After post-independence, the Copyright Act 1957 was the first copyright legislation in India. However, this legislation has been amended six times since 1957. The recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012. India is a member of most prestigious international copyright conventions governing the area of copyright law, including the following:
- The Berne Convention of 1886 (modified in 1971 at Paris),
- The Universal Copyright Convention of 1951,
- The Rome Convention of 1961
- The Agreement on (TRIPS) Trade-Related Aspects of Intellectual Property Rights
- Earlier, India was not a member of the (WTC) WIPO Copyright Treaty and (WPPT) the WIPO Performances and Phonograms Treaty but subsequently entered the treaty in 2013.
Copyright law gives Protection to Foreign Works in India
Copyright is provided to creative works of foreign nationals, whose countries are members of Berne Convention to which India is a signatory, are protected against any infringement of their creative works in India through the International Copyright Order, 1999. In India, courts have also been pro-active for the protection of copyright of foreign authors and owners, including books, art, painting, music, films, software, and database, etc.
What is Foreign Work?
The term ‘foreign work’ is not explicitly defined under the Copyright Act of 1957. However, for determining “foreign work,” it can be reasoned that any work which does not fall under the category as “Indian Work” under Section 2 (l) of the Act will be classified as “foreign work.” To protect Indian works in foreign countries, India has become a member of the international conventions on copyright and neighboring (related) rights, that are as follows:
- Berne Convention for a Protection of Literary & Artistic works
- The Universal Copyright Convention
- The Convention for a Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms
- The Multilateral Convention for an Avoidance of Double Taxation of Copyright Royalties
- (TRIPS) Trade-Related Aspects of Intellectual Property Rights Agreement.
“International copyright” is something that will protect an author’s writings throughout the world. The protection is given against unauthorized use in a particular country, depending on the country’s national laws. However, many countries offer protection to foreign works under certain conditions, which have been greatly simplified by international copyright treaties and conventions. In 1999, the International Copyright Order was formulated to protect the authors/owners of the foreign copyright works and enforce protections beyond the national limits.
Analysis of International Copyright under Indian Law
Under Indian legislation, copyright of works of the different countries mentioned in the International Copyright Order is protected in India, as if such works are Indian works. The benefits granted to foreign works must not extend beyond what is available to the works in the home country and only on a reciprocal basis, i.e., to say the foreign country must grant similar protection to works entitled to copyright under the Act. In particular, regarding Registration of Copyright Application found on scrutiny of the application that the work submitted for registration under the Copyright Act 1957 was already registered in the United States of America. Hence, a discrepancy was raised.
The Learned Registrar of Copyrights observed that “In accordance to the provisions of Section 40 of the Copyright Act, 1957, read with International Copyright Order 1999 states that the copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works are protected in India. A list of such countries is made available in Part 1 of the Schedule mentioned under the International Copyright Order 1999.” Further, the Learned Registrar of Copyrights agreed that an Applicant wishes so, he may also seek registration of their works in India by complying with the Copyright Act 1957 and Copyright Rules requirements 2013.
Importance of International Copyright
The aim of the copyright conventions/agreements/treaties is focused on the principle that the original creativity or works of the mind, which is the subject matter of protection under copyright law, should be disseminated and distributed regardless of their national borders. The simple principles of the major Copyright Conventions are as follows:-
Principle of National Treatment
The works originating in one of the Contracting States (works the author of such a State or works first published in such a State) must be given the same protection in each of the other Contracting States as the latter grants to the works of its nationals.
Principle of “Automatic” Protection
It means that such national treatment shall not be depending on any formality, i.e., protection must not be conditional upon compliance with any formality.
Principle of “Independence” of Protection
It means that the enjoyment and exercise of the rights in a protected work in a specific country is independent of the existence or nonexistence of protection in the country of origin or any other country.
Read our article:What type of Works Protected by Copyright in India?
The international treaties encourage reasonably coherent protection of copyright from country to country. They set minimum security standards, which each signatory country then implements within the bounds of its own copyright law.
In 1886, the Berne Convention was adopted to protect original works and the legal rights of their authors/creators. It protects creators such as authors, musicians, poets, painters, etc. with the means to control how their works are used, by whom, and on what terms. The Foundation of Berne Convention was based on three basic principles. This contains a series of provisions determining minimum protection to be granted and special provisions available to developing countries that want to make use of them.
The three basic principles are the following:
- The works originating in one of the Contracting Country must be given the same protection in each of the other Contracting countries.
- Protection is not conditional or based upon compliance with any formality, and instead, it is automatic.
- Protection must be independent and the existence of protection in a country of origin of the work. However, if a Contracting Country provides for a longer term of protection than the minimum prescribed by the convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.
Before the Berne Convention, there was very little protection for authors outside their home country. The Berne Convention protects the Literary and Artistic Works is an international copyright agreement that covers an artist when their work is published or produced outside their country of origin. It protects their right to authorize translations, reproductions, adaptations, performances, broadcasts, or other communication of their work.
India is a Signatory of Berne Convention
Berne Convention enforces a requirement that countries recognize copyrights held by the citizens of all other parties to the convention. That means Indian copyright law applies to anything published or performed in India, regardless of where it was originally created.
- Copyright protection in literary work, books, scripts, screenplay, novels, and lyrics: A detailed explanation is given in the convention on what exactly is protected by law in case of literary works.
- Protection in India: One of the things occurring in copyright law is a slow shift from being a common law subject to a statutory one. There has always been a federal Copyright Act, but until recently, courts took it as an invitation to fill in the gaps rather than unyielding constraints.
Universal Copyright Convention
UCC covers the author’s works who is a national or domiciliary of the country that is a member of these treaties or the works first published in a member country or published within 30 days of first publication in a Berne Union country may claim protection under them. Under the UCC, any formality in national law must be satisfied by the use of a notice of copyright in the form and position specified in the UCC.
The UCC notice must consist of the symbol © (C in a circle) accompanied by a year of its first publication and the name of the copyright proprietor. This notice has to be placed in such a manner to give reasonable notice of the claim to copyright.
- Performers such as actors, musicians, singers, dancers, and those who perform literary or artistic works) are protected against individual acts to which they have not consented, such as broadcasting and communication to the public of a live performance.
- Producers of the phonograms have right to authorize or prohibit the direct or indirect reproduction of their phonograms. In Rome Convention, “phonograms” mean any exclusively aural fixation of sounds of a performance or other sounds.
- Broadcasting organizations have right to authorize or prohibit certain acts, namely the rebroadcasting of their broadcasts, the fixation of their broadcasts and the reproduction of such fixations.
(TRIPS) Trade-Related Aspects of Intellectual Property Rights
Following the features of TRIPS are as below:
- Signed in the year 1996
- Administered by (WTO) World Trade Organization
- Includes the number of provisions related to the enforcement of IP rights.
- Says that the national laws have to make the effective enforcement of IP rights possible, and describe how implementation should be addressed in detail.
WIPO Copyright Treaty
Following the features of WIPO are as below:
- Signed in the year 1996
- Makes clear that computer programs and databases are protected under copyright
- Recognizes that the transmission of works over the Internet and similar networks are an exclusive right within the scope of copyright, originally held by the creator
- Categorizes as copyright infringements
- The circumvention of technological protection measures attached to works
- The removal from the work of embedded rights management information.
Remedies under International Copyright Order 1999
The foreign works, are considered under the International Copyright Order 1999, are protected under the Copyright Act 1957, the provisions with respect to enforcing the rights under the Copyright Act are also available to the foreign copyrights holders.
The International Copyright Order 1999 extends its protection under the Copyright Act 1957 to foreign works. Therefore, both criminal and civil remedies for infringement under Chapter XII and Chapter XIII are available to foreign works. In India, the Copyright Act provides dual legal machinery to the right holders for enforcing the rights. This enforcement is possible by –
- The Intellectual Property Appellate Board
- The Courts
The Copyright Act, 1957, was established with a quasi-judicial body called the Copyright Board, which is now merged with Intellectual Property Appellate Board (hereinafter referred to as the ‘Appellate Board’) according to Finance Act 2017, with effect from April 01, 2017. The Appellate Board is assigned to adjudicate disputes relating to copyright registration, assignment of copyright, a grant of licenses in respect of works withheld from the public, unpublished Indian works, production, and publication of translations, and works for certain specified purposes. Further, it hears cases in other miscellaneous matters instituted before it under the Copyright Act, 1957.
According to Section 62 of the Copyright Act 1957, the District Courts have jurisdiction in the matters of the infringement of any right conferred by the Copyright Act or pertaining to copyright infringement in any other work. However, an appeal against an order of the IPAB can be preferred before the Hon’ble High Court has jurisdiction.
An author who wishes to have copyright protection for his or her work in a particular country must first determine the extent of protection available to foreign authors’ works in that country. If possible, this should be done before the work is published anywhere, because protection may depend on the facts existing at the time of first publication.
Some countries offer no copyright protection to any foreign works. Corpbiz has a piece of information on the requirements and protection provided by other countries. It may be advisable to consult an expert familiar with foreign copyright laws.
Read our article:Copyright Registration in India – Process, Requirements and Duration