What is Patent

ENFORCING COPYRIGHTS

The owner of a copyright work has the exclusive rights of enumerated under Section 14. In case a person produces the work or any part of it without being authorized by the copyright owner to do so, he is said to have infringed the copyright. Section 51 of the Copyright Act deals with infringement of copyright and labels any act in violation of Copyright Owner’s rights (contained in Section 14) or any act of communication to the public without license as infringement of Copyright. Infringement of copyright would also be constituted if one sells, advertises for sale, and distributes, infringement of imports copies of the work. In R. G. Anand v. Deluxe Films where a number of propositions have been laid down by the Supreme Court.

The tests to determine infringement laid down by the Supreme Court are following

1. 
   There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyrighted work.
   
2. 
   Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendant’s work were nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
   
3. 
   One of the surest and the safest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
   
4. 
   Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
   
5. 
   Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negate the intention to copy the original and the coincidences appearing in the two works are clearly incidental, no infringement of the copyright comes into existence.
   
6. 
   As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
   
7. 
   Where, however, the question is of the violation of the copyright of stage play by a film producer or a director, the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.
   

But if the alleged activities come under fair use exceptions such activities are considered as not an infringement. There are a lot of statutory exceptions provided to infringement in Section 52, the basic purpose of which is to protect public interest and encourage the use of all things for academic or other similar purposes.

There are 3 types of remedies against infringement of copyright:Civil, Criminal and Administrative. Civil remedies include injunction, accounts of profits, delivery of infringing copies and damages for conversion. Criminal remedies provides for the imprisonment of the accused or fine or both seizure of infringing copies and delivering them to the owner of the copyright. Administrative remedies include moving the Registrar of the Copyright to impose a ban on the import or the infringing copies into India.

Civil Remedies:

The kind of civil remedies available against Copyright infringement have already been enumerated. Very often, a suit for infringement also prays for a grant of interim injunction to stop the alleged infringement for containing further during the pendency of the suit. However, it is necessary to bear in mind that if the defendant proves that at the date of the infringement he was not aware and had no reasonable ground for believing that copyright subsisted in the work, the plaintiff shall not be entitled to any remedy other than an injunction in respect of infringement and a decree for the whole or part of the profits made by the defendants by sale of the infringing copies as the court may in the circumstances deem reasonable.

In a suit for infringement of Copyright in appropriate cases, the court may grant authority to the along with his advocate to enter the defendants’ premises and inspect for any infringement and remove such copies for safe custody without even letting the defendant know of this order. This is to prevent any destruction of the infringing copies. However, this remedy is given only in very rare cases and only after the court is satisfied that it is necessary in the interests of justice. The plaintiff also has to be very particular and thorough in his application if he were to avail of this remedy.

A suit for Copyright infringement can be filed in the District Court within the local limits of which one of the plaintiff’s is residing, irrespective of where the defendant lives there. It can also be filed at a place where the cause of action arises, meaning thereby that at a place where the alleged infringement is said to have been committed. The period within which a suit must be filed is three years from the date of infringement otherwise the claim will become time barred. A suit for infringement can be filed either by the owner, the licensee or the assignee of the Copyright; the publishers in case of an anonymous publication.

Criminal Remedies:

The Copyright Act also enables the owner of Copyright to take criminal proceedings against an infringer. These two remedies are totally independent in their application and can be available of simultaneously. But for any conviction, knowledge that an infringement will be committed is necessary. Any infringement is punishable with a term ranging between seven days to 3 years and a fine of Rs. 50,000/- to Rs. 2,00,000/- (depending on the facts and circumstances of the case).

However, if a claim for damages for conversion is made, a separate civil proceeding is necessary. Enhanced punishment is provided for second and subsequent convictions and the minimum sentence is 1 year and minimum fine is Rs. 1,00,000/- in these cases.

The complaint is triable only by a metropolitan magistrate or a Magistrate of the first class and only a police officer of the rank of Sub-inspector and above is given the power to seize the infringing copies, without warrant for production before the Magistrate. The provisions the Criminal Procedure Code, 1973, govern the progress of the complaint. In the case of an offence committed by a company, the company as well as the person who at the time of the offence responsible for the business of the company shall be deemed to be guilty of such offence.

It should also be noted that all infringing copies and all equipment used for making these copies are deemed to be the property of the owner of the Copyright and this may be delivered to him.
Transaction with Copyright

Eventhough Copyright protects the right of an author against unauthorised copying of his works, the author of Copyright rarely exploits the Copyright by himself, instead authorizes others to use his copyrighted work in return for a proportionate payment. This can be don in two ways:

(a) assignment

(b) royalty

Assignment

The main provisions relating to assignment are contained in Section 18 and 19 of the Copyright Act. Assignment is actually a transfer of ownership of the Copyright to the assignee on mutually agreed terms. This is done for a lump sum consideration or for royalty payment. An agreement in writing signed party is mandated under the law for an assignment to be valid. The period of assignment is taken to be 5 years if there is no express term in the contract. The assignee has to exercise his rights within one year from the date of assignment for the assignment to continue unless there is a contract to the contrary. Assignments are also possible in respect of future work. These will take effect on the work coming into existence.

It should also be noted that there are various ways in which it is possible to assign Copyright. An author may assign Copyright for the territory of one country and reserve rights for other countries to him or he may assign some of the rights to one person and assign the rest of the rights to others.Another important thing to keep in mind is that registration of assignment is not compulsory.

Copyright can move from one to another under a bequest. (Section 20)

Licenses:

The law relating to licenses is contained in Chapter VI of the Copyright Act. [A license is an authority to do something that in the absence of that authority would be unlawful.] Licenses are generally of two types:

(a) Voluntary licences (those granted by the owners of Copyright)

(b) Compulsory licenses (those provided for by legislation)

It is difficult to distinguish between assignment and license. It will have to be determined only by looking at the stipulations in the contract. The difference between license and assignment is that the licensee does not become the owner while an assignee does. As the case of an assignment, the period of a license is 5 years from the date of assignment in the absence of a contract to the contrary and the licensee has to exercise his right within one year. For the license to subsist unless there is a contrary stipulation in the contract.

A license is possible in respect of a furtive work and it takes effect when the work comes into existence.

The Copyright Act also provides for certain compulsory licences under Section 31. The object behind this is to safeguard public interest in dissemination of knowledge. The Berne Convention of 1971 and the Universal Copyright Convention have also made special provisions for compulsory licenses in developing countries provided that they fulfil certain conditions and are limited to translation and broadcasting rights.

The Copyright Act provides for compulsory licenses for and “Indian work” (work whose author is an Indian on which work is first published in India) if the work have been published or performed in public and the author has refused to allow further publication, performance, broadcast etc. Compulsory licenses are also issued to produce and publish translations copyrightable materials in the interest of public. Copyright Board is the authority, which has the authority to issue compulsory license.

THE INDIAN MUSIC INDUSTRY

The Indian Music industry is a non-commericial and non-profitmaking organisation affiliated to the International Federation of Phonographic Industry (IFPI). IMI is registered under the West Bengal societies Registraion Act. The main objectives and functions of the IMI include, to defend preserve and develop the rights of pho0nogram producers,to promote and encourge the development of musical culture, to facilitate the evolution of fair trade policies and business practices and to organise and conduct anit-piracy operations.

Mumbai (Admin. Office) :IMI, Flameproof, Equipment Bldg., B-39, 2^nd floor, Off New Link Road, Andheri (W), Mumbai 400 053. Tel. Nos. 6391391/92/93. Fax No. 6391394. E-mail – [e-mail]

Mumbai (Anti-piracy Wing) : IMI, Neelam Centre, Unit 1, ‘B’ Wing, Ground floor, Hindi Cycle Lane, Worli, Mumbai 400025. Tel. Nos. 4939978/4939979. Fax. No. 491 5974. E-mail – [e-mail]

New Delhi :IMI, C-47, Nizamuddin (East), New Delhi 110013. Tel. No. 4358693; Tel. Fax [phone]. E-mail – [e-mail]

Kolkata (Regd. Office) :IMI, 1/3, Bangur Avenue, Block ‘D’, Kolkata 700055. Tel. No. 5745792; Tel. Fax. [phone].

Website:www.indianmi.org

PHONOGRAPHIC PERFORMANCE LTD.

Phonegraphic Performance Ltd. (PPL) is the copyright society in respect of sound recordings and is registered with the Government of India. PPL administers the broadcasting / telecasting / webcasting and public performance rights on behalf of about 60 recording companies which are its members. PPL members include IMV (Sa Re Ga Ma India), Tips, Universial, Venus, Sony Music, Magnasound, BMG Crescendo, Virgin, Milestone, Times Music and others.

Mumbai (Admin. Office) : PPL, B-39, Flameproof Equipments Bldg., Off New Link Road, Andheri (W) Mumbai 400053. Tel:[phone]; Fax:[phone].

Kolkata (Regd. Office) : PPL, 1/3, Bangur Avenue, Block ‘D’, Kolkata 700055, Tel:[phone]; Tel fax [phone].

New Delhi : PPL, C-47, Nizamuddin (East) New Delhi 110013. Tel.:[phone]; Tel fax:[phone].

Chennai : PPL, A-94-A, Karthik Stree, Vetri Nagar, Chennai 600082. Tel:[phone]; Tel fax [phone].

Website:www.pplindia.org

Trademark means any mark used to represent or identify a product or its maker. In a market economy trademarks are most important because it is the biggest assest of a company that really sells the products.

Trade Mark

Trade Marks Act,1999 s.2(1)(zb)... 'trade mark' means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packing and combination of colours; and-

(i) in relation to Chapter XII(other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indication or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and

(ii) in relation to other provisions of the Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;

Therefore, trade mark means

(i) a mark(I)

(ii) capable of represented graphically

(iii) mark is capable of distinguishing the goods or services of one person from those of others, and

(iv) include shape of goods, their packaging and combination of colours;

Trademark can be any mark(II) that can be represented graphically. It includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof. However, the definition of mark under the Act is only an inclusive definition and a mark can be other than those mentioned in the definition also. For e.g. there could be a smell mark. In addition to this, such mark should be capable of distinguishing the goods(III) or services(IV) of one person from those of others. That is, the mark should represent the goods or services of one person (includes legal persons like company) and capable of distinguishing the goods it represents from that of other persons. It is important to note that the first part of the definition of the trade mark under s.2 (1)(zb) is a general definition of trademark. s.2(1)(zb)(i) & (ii) adds additional conditions for purpose different parts of Act.

S.2(1)(zb)(i) prescribes the conditions for the purpose of Chapter XII that deals with Offences, Penalties and Procedures(other than section 107 [V]) ). It says a trade mark for the purpose of criminal remedies can be a registered or under registered trade mark provided if it used in relation to goods or services for purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark. Therefore, it is clear that criminal remedies can be claimed by owners of unregistered trade marks too. s.2(1)(zb)(ii) prescribes the conditions for the purpose of all chapters other than chapter XII which deals with criminal remedy for the trade mark violation. So in relation to other provisions of the Act, trade mark means a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark(VI) or collective mark(VII) .

Foot Notes

(I) s.2(1)(m) 'mark' includes a device, brand, heading, label, ticket, name, signature, word, letter, and numeral, shape of goods, packaging or combination of colours or any combination thereof;

(II) ibid

(III) s.2(1)(j) Goods mean anything which is subject of trade or manufacture;

(IV) s.2(1)(z) 'service' means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising;

(V) s. 107 Penalty for falsely representing a trade mark as registered.

(VI) s.2(1)(e) Certification trade mark means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of service, quality, accuracy or other characteristics from goods or services not so certified and registerable as such under chapter IX in respect of those goods or services in the name, as proprietor of the certification trade mark, of that person;

(VII) s.2(1)(g) Collective mark means a trade mark distinguishing the goods or services of members of an association of persons [not being a partnership within the meaning of the Indian Partnership Act, 1932(9 of 1932)] which is the proprietor of the mark from those of others;