Copyright

Copyright is the right given by law to the creators of literary, dramatic, musical and a
variety of other works of mind. It ordinarily means the creator alone has the right to
make copies of his or her works or alternatively, prevents all others from making such
copies. The basic idea behind such protection is the premise that innovations require
incentives. Copyright recognises this need and gives it a legal sanction.

Moreover, commercial exploitation of copyright yields income to the creators and

thus making pecuniary rewards to individual‟s creativity. The origin of copyright had
a link with the invention of printing press by Gutenberg in the fifteenth century. With
the easy multiplying facility made possible by the printing press, there was
voluminous increase in the printing and distribution of books which ,in turn, led to
adoption of unfair practices such as unauthorised printing by competing printers.

Though piracy was born by the end of the fifteenth century, it was only in 1710 the
first law on copyright in the modern sense of the term came into existence in England.
The law which was known as `Queen Anne's Statute' provided authors with the right
to reprint their books for a certain number of years. The 1710 law was confined to the
rights of authors of books only, and more particularly the right to reprint. It did not
include other creative works such as paintings, drawings etc. which also by that time
became targets of piracy, in addition to other aspects relating to books (e.g.
translation, dramatisation etc.)

To overcome this problem a new enactment namely `Engravers Act' came into
existence in 1735. There followed a few more enactments in the subsequent periods
and ultimately Copyright Act 1911 saw the light of the day. Developments in this
regard also took place in many other advanced countries, notably among them being
France, Germany and the USA. In France a copyright decree was adopted in 1791
which sanctioned the performing right and another decree of 1793 established
author‟s exclusive right of reproduction. In Germany author‟s rights were recognised
by a Saxon Order dated Feb 27, 1686. In America the first federal law on copyright,
the Copyright Law 1790 provided protection to books, maps
and charts.
Copyright and National Economy

Besides protecting creative potential of the society, copyright contributes to a nation

on economic-front as well . The copyright based industries together generate huge
employment in the country of its origin. The national exchequer benefit from the
contribution made by these industries in the form of excise duty, sales tax, income tax
etc. from the production and sale of copyrighted products. Given the natural demand
for such products from across the national boundaries exports help consolidate
country's foreign exchange reserves position.

While there is no two views on the economic importance of copyright, it is not easy to
assess it properly. The first and the foremost difficulty arises in defining the copyright
based industries. In simplistic term copyright industries include all those activities
which directly or indirectly depend on copyrighted materials for their commercial
success. But the range of activities that come under the subject of copyright is so wide
that the task of defining the copyright industry becomes difficult. These industries are
drawn from a large number of different industry classifications and they are also not
readily identified as an industry in the usual sense. This makes the issue more
complicated.

However, there is a general consensus on the activities that come under copyright
industries. It include printing and publishing of books, newspapers, journals & other
periodicals, production and sale of audio products (Cassettes/CDs), production &
distribution of cinemas, videos and cables, creation of computer softwares &
databases and their distribution, radio and television broadcasting, advertising,
photography, dramatic and musical performances etc. The list is not exhaustive. But
the present study is confined to only the main segments of the copyright industry and
covers cinematographic works (including video), sound recordings, literary works
(mainly book publishing), computer softwares and performances.
Copyright and International Relations

The scope of copyright is not confined merely to the arena of creativity and its
economic exploitation in the country of its origin. It has emerged as a major factor in
international relations. In the recent past, the trade relations between the US and
China deteriorated considerably over the issue of protection of Intellectual Property
Rights (IPR). The US maintained that China is the worst violator of IPRs and the loss
to the US economy is more than 2 billion dollars annually because of violation of its
IPRs in China's territory. The dispute took a serious turn when US trade groups
wanted trade relations with China to be stopped completely. It was only after the
intervention of the heads of both the countries any further deterioration was averted.
The importance of IPRs in general and copyright in particular in the relationships
among the countries can be comprehended clearly from the above example. The Sino
-US piracy dispute, though a recent one, is not the only case. With the advancement in
technologies copyrighted items started flowing freely across the boundaries and
piracy assumed an international dimension. Since the nineteenth century the countries
felt the necessity of having copyright protection in foreign soil as well. As a result,
negotiations were held between countries which in some cases resulted in the
conclusion of multilateral treaties. The first multilateral agreement on copyright is the
Berne Convention which was concluded in 1886 and was meant for providing
protection to literary and artistic works. A country joining the Convention has to
provide copyright protection to literary and artistic works of member countries in its
own territory and also entitled for enjoying reciprocal protection from others. The
Berne Convention was revised seven times in 1896 (at Paris), 1908 (at Berlin), 1928
(at Rome), 1948 (at Brussels) , 1967 (at Stockholm) and 1971 (at Paris) and finally in
1978. Among these, the 1971 revision (the Paris Act) is of particular importance to
the developing countries as it provided special concessions to these countries in
making translations and reproduction of foreign literary works for educational
purposes. Ninety countries are at present member of the Berne Convention.

The post Second World War era saw the emergence of the need for protecting
copyright on an universal basis. Till then countries in the North America were not
party to the Berne Convention and copyright protection in these countries were
governed by various national and regional agreements. In August, 1952 the
Intergovernmental Copyright Conference was convened in Geneva which led to the
adoption of another historical copyright convention, namely the Universal Copyright
Convention (UCC). The UCC is not a substitute for the Berne Convention. Rather it
tried to establish the link between the countries on the Bern Union and those in North
America. India is a member of both the Berne Convention and the UCC. In recent
years, the issue of IPRs figured prominently in the Uruguay Round of General
Agreement on Tariffs and Trade (GATT). It is for the first time the GATT went
beyond its usual mandate to include the IPRs. The Trade Related Aspects of
Intellectual Property Rights (TRIPS) is set out in Annex 1C of the Final Uruguay
Round Text. The text comprises 73 articles grouped in seven different parts. The
standards for specific IPRs such as copyright and neighbouring rights are discussed in
part II.

Copyright in India The copyright in India has travelled a long way since it was
introduced during the British rule. The first law on copyright was enacted in the year
1847 by the then Governor General of India. When Copyright Act 1911 came into
existence in England, it became automatically applicable to India, being India an
integral part of British Raj. This act was in force in the country until after
independence when a new copyright act (the Act of 1957) came into effect in 1958.
Thereafter the Act has undergone many amendments. The latest in the series is the
1994 Amendment, which came into force in May 1995. The Indian Copyright Act
confers copyright on
(i) original literary, dramatic, musical and artistic works,
(ii) cinematographic films and
(iii) sound recordings.

The word `original' means that it should not be copied from other works or
alternatively it should be the outcome of independent efforts. The Act empowers
copyright holder(s) to do or authorise doing a number of activities. The important
among these are:

a. to reproduce the wk in material form

b. to publish the work
c. to perform the work in public or communicate it to the public
d. to produce, reproduce, perform or publish any translation of the work
e. to make any cinematographic film or a record in respect of the work
f. to make any adaptation of the work g. to do, in relation to a translation or an
adaptation of the work, any of the acts specified to the work in sub clauses to (a) to
(f).

The above mentioned rights are `exclusive' in the sense that the creator (or
rightholder) alone has the right to enjoy these to the exclusion of others. The author
by virtue of his creation becomes the `owner' of the copyright in the work. However,
there can be exceptions to this as in the following two cases :-

The grant of copyright is a limited monopoly. It is limited in the `scope' of the rights
granted and in terms of `time'. In India, copyright on a literary work is provided for
the lifetime of the author plus sixty years after his death. In case of joint authorship,
the sixty years period is calculated from the beginning of the calendar year following
the year in which the last (surviving) author dies. Copyright with respect to
photographs, cinematographic works and sound recordings spans for 60 years of its
first publication. In order to strike a balance between the society's need for access to
knowledge and the need to rewarding creators, limited uses of copyright protected
works are permitted without authors consent. These are called `fair use' of copyright.
Section 52 of Indian Copyright Act permits certain activities which do not amount to
infringement. Important in this `exception list' are reproduction of literary, dramatic,
musical or artistic works for educational purposes, e.g. research, review etc., and
reporting in newspapers, magazines and periodicals etc.

The Copyright Act of India provides rightholders a dual legal machinery for enforcing
their rights. The enforcement is possible through
(1) the Copyright Board and (2) the courts.

Legal remedies include imprisonment and/or monetary fines - depending upon the
gravity of the crime. Sometimes remedies also include seizure, forfeiture and
destruction of infringing copies and the plates used for making such copies. The 1984
amendment has made copyright infringement a cognizable non-bailable offence.
Under the provisions of the Act any person who knowingly infringes or abets the
infringement of copyright is considered as an offender and is punishable with a
minimum of six months imprisonment which may extend to three years and a fine
between fifty thousand and two lakhs rupees.

The 1994 Amendment has incorporated a special penal provision for knowingly
using an infringing computer software. The punishment provided for this act is
imprisonment for a term of seven days to a maximum of three years and a fine
between fifty thousand and two lakh rupees. In case the infringing copy of the
computer software is used not for pecuniary gain or in the course of trade or business,
the imprisonment can be relaxed and fine can be maximum of fifty thousand rupees.

Beside amending the Copyright Act the Indian Government has taken few more steps
in strengthening the enforcement in the country. A Copyright Enforcement Advisory
Council has been set up for advising the Government on measures for improving the
copyright enforcement. Training programmes and seminars are arranged for police
personnel. Necessary legislation was made for bringing video shops, cable operators
under regulation. State governments are encouraged to set up IPR cells for exclusively
dealing with copyright and other IPR violations. In spite of all these, enforcement of
IPR violations, particularly copyright violations has not been strong enough in the
country and piracy prevails exits in all types of copyright works notably musical
works, video films and softwares.