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Published : August 27, 2012 | Author : mini.anshuman
Category : Intellectual Property | Total Views : 5704 | Rating :

Mini Gautam, B.S.L LL.B from ILS Law College and currently pursuing LLM in International Financial Law from Kings College London. Anshuman Chanda, B.S.L LL.B from ILS Law College and currently pursuing LLM in Tax Law from Kings College London.

The Rights protected by Copyright Law

Copyright law seeks to promote human creativity and confers several rights on the copyright owner. International agreements, among which the most important is the Berne Convention, 1886, seeks to standardize the rights available to copyright holders across different countries. The following rights will therefore be looked at as given in the Berne Convention to which most countries are signatories and whose provisions they have incorporated in their local laws as well.

Requirement of Originality

For any work to be eligible for copyright protection, the work needs to be original. The standard of originality is measured by the investment of labour, skill and judgement. In common law jurisdictions like United Kingdom and India, the standard of originality is low and even a low degree of investment in labour, skill and judgement will qualify for copyright protection. However, civil law jurisdictions like France and Germany demand certain minimum amount of creativity and author’s intellectual expression.

Right of Reproduction
The most prominent is the right to reproduce, which implies making copies of the work in any form (Article 9). In the modern context copying a song on a CD would amount to reproduction. Sound and visual recordings are also considered as copying. Copying would amount to infringement unless it can be classified under one of the fair use defences. It is necessary to show that the person copying does not intend to make any commercial benefit out of it. In all other cases permission of the author is required.

Right to Distribute
An off-shoot right of reproduction is the right of distribution. The copyright owner may distribute his work in any manner he deems fit, he can even license it if he wishes or give it out on rent. The owner is at liberty to assign certain specific rights to somebody while retaining the rest; for example he may assign the right to make translations.

Right to make Derivative Works
Another important right that the owner has is to use the work in various ways, for instance while making adaptations (modifications in a work to suit some other requirements) (Article 12) or translations (converting from one language to another) (Article 11). Examples of adaptations would include making a movie based on a novel. Nobody else can make these derivative works without the owner’s consent. Authors of literary and artistic works also have an additional right to make cinematographic adaptations and distribute the same (Article 14). In this context, related rights of the owner are also important, for instance, the right to integrity which protects the owner against distortion, mutilation or modification of his work in a way that it is harmful for his reputation.

Right to Publicly Perform
The copyright owner also has the right to publicly perform his works. Example, he may perform plays based on his work or perform at concerts, etc. Public does not have to be of a specific strength; even a large group of people would amount to performing before the public (Article 11).

Right to Broadcast
A copyright owner also has the right to broadcast his work. Broadcasting would mean using of any means to make the work available to the public. In the modern context, this would extend to making the work accessible on the Internet. The terms and conditions of access will be decided by the copyright holder (Article 11bis).

Right of Public Recitation
Authors of literary works are additionally conferred with the right to publicly recite their works (Article 11ter).

Right to Follow
A special right granted to authors is the right to obtain a percentage in the subsequent sales of his work and is called Droit de Suite or Right to Follow. The right is also available to artists on resale of their work. (Article 14ter)

Moral Rights
The moral rights required to be protected under the Berne Convention, Article 6bis are the “Right of Paternity” and the “Right of Integrity.” These rights have been primarily adopted from the civil law jurisdictions which are more author centric, like France and Germany. They consider copyright to be more of a personal right of the author of the work, giving him credit for his intellectual effort and creativity. The Right of Paternity or Attribution gives the copyright owner a right to claim authorship of the work and the Right of Integrity gives the owner a right to prevent any distortion of the work which would be potentially harmful to the reputation and honour of the right holder. Under the Right of Paternity a copyright owner can claim due credit for any of his works. Thus, if a movie has been based on a book by an author, but he hasn’t been given due credit in it, he can sue the makers to acknowledge his work. The Right to Integrity would protect a right holder if someone distorted, mutilated or modified his work in a way that it is harmful for his reputation and name. Economic rights can be licensed, but moral rights cannot. They remain with the author even if he has assigned or licensed his other rights. Therefore, altering or modifying any work may amount to infringement of an author’s Right of Integrity unless written consent has been obtained for the same or it is reasonable under the circumstances to do so. Moral rights are protected more vigilantly in civil law countries. In fact, in USA, moral rights are only recognized for visual works and not for literary or musical works. Moral rights are considered more of a part of the law of defamation relating to libel and slander and do not get much importance otherwise.

Sui Generis Rights
It is not possible to protect computer software and databases through ordinary copyright law without any variations. The main reason for this is that databases often lack the essential element of creativity that is required for copyright protection. To resolve this problem a new set of rights of their own kind (sui generis rights) have been introduced to protect databases on the whole. A database involves an arrangement or compilation of information and though this may not be creative, it still requires effort and hence protection from unauthorized copying. However, a certain number of modifications will be required like the making of back-up copies will have to be excluded from the realm of copyright infringement. The database right exists for a fifteen year term.

Right to Enforce other Rights
The most important right available to copyright owners which makes all the other rights meaningful is the Right to Enforce Protected Rights (Article 15). Under this, the copyright holder can institute infringement proceedings against any violative work.

Private Copying
Private copying is an exception to the reproduction right in most countries as long as it does not jeopardize the interests of the right holders. Under the Berne Convention three step test, authors shall have the exclusive right to authorize reproduction of their works. However, member countries may by legislation permit the reproduction of the copyrighted works in certain specific cases, for example, private copying. It is in the interests of consumers to allow for private copying to a limited extent. The justification behind allowing private copying is that a single or limited act of copying made for the purpose of education or instruction should not be held as infringement. As long as there is no commercial motive behind copying and there is no harmful impact on the economic and non-economic rights of the copyright owner, there should be no restriction.

Collective Management Societies
Collective Management Societies as the name suggests are created with a view to collectively manage the rights of various copyright holders. These societies license the copyrighted works and collect royalties on behalf of the right owners. Royalty collection is the essential economic right of every copyright owner and it is not physically possible for him to discharge this function by himself. The problem is that there is generally only one such organization for each category of work, giving the society a near monopoly. Where there is monopoly, there is bound to be abuse and in order to protect the interests of both right holders and users, various steps maybe taken. One such method maybe trough Governmental regulation and supervision. Compliances maybe imposed on these societies threatening them with disbandment if they do not adhere to them. For example, the Indian Copyright Act, 1957 provides that if a copyright society is being managed in a manner detrimental to the interests of the right holders, its license can be cancelled. Secondly, an appellate body can be created to hear appeals against any conduct of the copyright society. This will provide copyright owners with a redressal mechanism in case the societies start charging arbitrary rates.

In conclusion is maybe said that copyright law adequately protects the right holders. The law has kept pace with the changing times and has accommodated a number of new things in its ambit, including digital reproduction and sui generis rights. Most member countries have incorporated these rights in their State laws as well. India has also risen up to the challenge and updated its copyright law from time to time. The New Copyright (Amendment) Bill, 2012 which was passed on 23rd May, 2012 to give royalty to lyricists, performers and artists each time a broadcast is made, is a major step in a new direction; the impact of which is yet to be seen.

Authors contact info - articles The  author can be reached at: mini.anshuman@legalserviceindia.com

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