Jai Shree Krishna

Remedies of copy right

Civil remedies

(A) Interlocutory Injunctions

(B) Permanent Injunction – Damages / Delivery Up
(C) Anton Piller Order

Criminal Remedies – Imprisonment of 6 months to 03 year and fine Rs.

50,000/- to 200,000/-

Administrative Actions.

Copy right is bundle of right

Introduction:

Over the years, Copyright law has evolved as the guardian of artistic rights of
authors who put their blood, sweat and tears into creating original works.

The Copyright Act, 1957, under Section 14, enlists certain rights that can be
enjoyed by the copyright holder and grants moral rights under Section 57.

They can be classified into economic rights (Section 14) and moral rights
(section 57).

These rights are distributed evenly in all fields where copyright may be granted,
with minor exceptions.

Here, we discuss the right of reproduction, performance, publication, audio-

visual expression, translation and adaptation which are economic rights;

the right to paternity and integrity which are moral rights.

Economic Rights:

1. The Right of Reproduction: The right of reproduction commonly means

that no person shall make one or more copies of a work or of a
substantial part of it in any material form including sound and film
recording without the permission of the copyright owner.
 The most common kind of reproduction is printing an edition of a work.
Reproduction occurs in storing work in the computer memory.

2. The Right of Publication or Communication to Public: See, heard and enjoy

(Directly/display or diffusion)

Communication to the public means making any work available for being seen
or heard or otherwise enjoyed by the public directly or by any means of
display or diffusion. It is not necessary that any member of the public
actually sees, hears or otherwise enjoys the work so made available.

For example, a cable operator may transmit a cinematograph film, which no

member of the public may see. Still, it is a communication to the public. The
fact that the work in question is accessible to the public is enough to say
that the work is communicated to the public.

3. The Right of Performance: Right to generate revenue from performance

(Pvt/Public)

the authors have the right to generate revenues through performances.

Concerts and world tours by singers is an example.

These performances can be executed in public and private forms.

4. The Right of Audio-Visual/Cinematographic Expression:

This right confers the author to represent his/her work in audio-visual

format, commonly referred to as the cinematographic expression.

LDMSR : -

The author holding rights in the literary, dramatic and musical works
including sound recording also has the right to make the cinematographic
film by using those works.

5. The Right of Translation and Adaptation:

Adaptation involves the preparation of new work based upon the already
existing work in the same or different form.

The Copyright Act defines the following acts as adaptations:

1. Conversion of a dramatic work into a non-dramatic work
 2. Conversion of a literary or artistic work into a dramatic work
3. Re-arrangement of a literary or dramatic work
4. Depiction in a comic form or through pictures of a literary or dramatic
work.
5. Transcription of a musical work or any act involving re-arrangement or
alteration of existing work.

The making of a cinematograph film of (LDM) a literary or dramatic or

musical work is also an adaptation.

For example, the movie “Dil Bechara” was an adaptation of the novel “Fault in
our Stars” and so was the movie “Ram-Leela” which was an adaptation of
Willam Shakespeare’s “Romeo-Juliet”.

Moral Rights:

Moral rights generally include the right to paternity and the right to integrity.

1. Right to Paternity:

As the “creator” of a work, the author can claim ownership over their work and
prevent others from claiming ownership have the work attributed to them.

2. Right to Integrity: claim of damages – Damage reputation of work,

Mutilate, Alter

this right allows the author to claim damages in the case when someone
tries to damage the reputation of the work, mutilate, modify or alter his
work inappropriately which may cause harm to the work and the author.

Conclusion:

An author and his work are both wedded for life. It is an extension of the
authors’ identity.

In many of the cases, the author is deprived of his own work, in such
circumstances, the economic rights and moral rights can act as a double-
edged sword to protect the author and their work.
 Doctrine of Fair Dealing of copyright :-

Fair Dealing under Indian Copyright Law:

In India, standard exceptions or defences to copyright infringement

are listed in Section 52 of the Copyright Act, 1957.

The provision of fair dealing makes it certain that for a dealing to be ‘fair’, the
purposes have to fall within the statutorily established purposes of private
use, research, criticism and review.

The exception of fair dealing not been defined in the Act but finds
its roots in the doctrine of equity and simply put, on the basis of facts and
circumstances of a case, it justifies unpermitted use of a copyrighted work.

It draws a line between a legitimate, bonafide fair use of a work from a

malafide blatant copy of the work. The court in the case of Wiley Eastern Ltd.
v. IIM[6] laid down that the rationale of Section 52 and stated that it is to
protect the freedom of expression Article 19(1) (through research, private study,
criticism or review or reporting of current events enshrined in Article 19 (1) of
the Constitution of India.

Lord Denning, while attempting to form a definition in the case

of Hubbard v. Vosper, said: It is impossible to define what is ‘fair dealing’, It
must be a question of degree.

You must consider first the number and extent of the quotations and
extracts. Are they altogether too many and too long to be fair?

Then you must consider the use made of them, other considerations may come
to mind also. But, after all is said and done, it must be a matter of impression.
[7]

As yet, India has no rule of thumb or no set laws that determine the
amount of work that can be taken without the permission of the creator for
it to classify under the exception of fair dealing.
The decision in this matter is largely left up to the Court’s discretion, there are
certain guidelines based on which the court has to make its decision,
amongst which, public interest being of paramount consideration.

As the courts in India have analyzed the doctrine of fair dealing, in

which they drew primarily from UK and US approaches, they endorsed certain
factors that may be more or less relevant in fair dealing cases and which are
not provided by the Indian copyright statute. The Courts have traditionally
articulated and applied the following three factors in deciding the cases.[8]

The Amount and substantiality of the portion used:

In Blackwood case, which involved the reproduction of the work in the form of
guides, the court rightfully held that the alleged infringer’s intention is an
important but not a decisive factor in determining whether the work in
question was copied so substantially that the copying would amount to
negative ‘fairness’.[9]

The Court took a peculiar stand in SK Dutt v Law Book Co and Ors, where
the dispute was based on the use of certain quotations from a work. The
Court interpreted the fact of acknowledgement by the authors of the plaintiff’s
material to mean that if the authors had made any other use of the plaintiff’s
book in compiling their own book, they would have acknowledged it; thus, the
copying was held not to be a substantial taking.

Purpose and Character of the use:

The next consideration relates to the purpose and character of the use.
Section 52 of the Indian Section 52 of Copyright Act also sets out an
exhaustive list various purposes that fall under the domain of fair dealing.

If the purpose of the reproduction is not one of those enumerated in the

statute the question of fair dealing would not arise.

The major purposes which the act enumerates are: private study, research,
criticism and review.

In V Ramaiah v K Lakshmaiah, wherein the question was, whether the Act of

the respondent in writing the guide is an infringement of the copyright of the
owner, the courts were cautioned to keep in mind that defendants pleading
fair dealing should not have used the work without out making any
independent contribution, in other words, the work must have been
transformative.[11]
The Court in Chancellor masters, which again concerned copying for the
purpose of guide books, had laid down that while dealing with the issue of fair
dealing, a Court should ask whether the purpose served by the subsequent
work is substantially different (or is the same) from the purpose served by
the prior work. To be called transformative, the subsequent work must be
different in character, it must not be a mere substitute.

Effect on the Potential Market: Likelihood of Competition:

This factor seems to have been a weaker consideration in India. However, in

Blackwood case, the Court held that the possibility of competition is all that
is necessary for determining infringement of a copyright.

In ESPN Stars Sports the Court endorsed the ‘likelihood of competition’ and
held that if the work is being used to convey the same information as the
author, for a rival purpose, it may be unfair.

CONCLUSION:

From the above, it can be understood that fair dealing forms an essential
and important part of the copyright law.

It is also clear that this concept of Fair Dealing is not very advanced or
developed in India, but with the various amendments and judicial decisions,
the Doctrine has found a solid footing in the copyright legislature of our county
and is evolving further and its scope is expanding with every judicial
pronouncement.

The Doctrine is necessary in order to bring about a balance or harmony

between the conflicting monopolistic interests of the Author and the
creative interests of the society at large.

The Doctrine helps promote creativity in the society leading to a wide variety
of creative and astonishing works, which without the existence of the Doctrine
of Fair Dealing might not have been possible

[13]. Thus, the Doctrine plays a vital and important role in both the promotion
of creativity and the evolution and development of the Copyright law at
municipal as well as international level to promote as well as protect such
creative works.

Trade related aspects under TRIPs :

 TRIPS Agreement
Trade Related Aspects of Intellectual Property Right (TRIPS) is an agreement on
international IP rights.

TRIPS came into force in 1995, as part of the agreement that established
the World Trade Organisation (WTO).

TRIPS establishes minimum standards for the availability, scope, and use of
seven forms of intellectual property namely, trademarks, copyrights,
geographical indications, patents, industrial designs, layout designs for
integrated circuits, and undisclosed information or trade secrets.

It applies basic international trade principles regarding intellectual property

to member states.

It is applicable to all WTO members.

TRIPS Agreement lays down the permissible exceptions and limitations for
balancing the interests of intellectual property with the interests of public
health and economic development.

TRIPS is the most comprehensive international agreement on IP and it has a

major role

1 in enabling trade in creativity and knowledge,

2 in resolving trade disputes over intellectual property, and

3 in assuring WTO members the latitude to achieve their domestic policy

objectives.

It frames the IP system in terms of innovation, technology transfer and

public welfare.

The TRIPS Council is responsible for administering and monitoring the

operation of the TRIPS Agreement.

TRIPS was negotiated during the Uruguay Round of the General Agreement on
Tariffs and Trade (GATT) in 1986–1994.
The TRIPS Agreement is also described as a “Berne and Paris-plus”
Agreement.

Q. Explain Intellectual Property Right and Human Right ? –Most

Important

Patent and access to life saving drugs has always an emotive and contentious
issue.

The right to health life is moral minimum and to find a rational has to deny is
deeply offensive to the idea of life itself. Approval from WTO

IPR are source of innovation

Human rights are the right which are possessed by every human being
irrespective of his or her nationality, race, religion, sex, status etc. We can say
human rights may be considered as those fundamental an inalienable rights
which are essential for life as human being. Human rights are based on
mankind‘s increasing demand for a life in which the inherent dignity
and worth of each human being will receive respect and protection.

As human rights are not created by any legislation they very much resembles
to natural rights and sometimes called fundamental rights or basic rights or
natural rights. The Indian Constitution bears the impact of the Universal
Declination of Human Rights. The framers of the Indian Constitution were
influenced by the concept of human rights and guaranteed most of human
rights contained in the Universal Declaration of human right, Civil, Political
Economic, Social and Cultural rights which are contained in Universal
Declaration of human right have been incorporated in our Constitution in Part-
III and Part IV.
The right to equality and the principal of non-discrimination is the
foundation of international human rights law. Poverty is one of the most
related factor in violation of human rights. The poors are usually victims
of discrimination based on multiple grounds, such as birth, property
 national or social origin, ethnic origin, colours, gender and religion. As
discrimination causes poverty, poverty also cause discrimination. In
addition to other grounds of unequal treatment often suffers
discrimination because they are poor. Poor or the impoverished masses are
the vulnerable section of the society.

Area of human rights and intellectual property rights is very wide in which
all the basic rights of human being have been covered. Whereas
intellectual rights covered those rights which are essential to protect
the interest of individual, on the other side human rights protects those
rights which are fundamental and necessary for the life of a human
being.

Human rights and intellectual property rights are at some extent co- relative to each
other.

Human rights represent claims which individuals or groups make on

the society. They also include right to freedom from torture, the right
to life, freedom from inhuman treatment, slavery, forced labour,
the right of liberty and security, freedom of movement and right
of residence, right to fair trial, right to privacy, freedom of
thought, conscience and religion, freedom of opinion and
expression, right to marry and form a family, right to participate
in one‘s government either directly or indirectly or through freely
elected representative, the right to nationality and equality before
law.
Distinguish between Patent and Trade Mark ?

Para meters Trdaemarks Patents

Protection A trademark protects the A patent protects one's ideas
goodwill related to the mark. that have been turned into
reality.
Application Trademark works through The patent applies to any
marks or symbols on intellectual property.
products that represent the
brand that is responsible for
its manufacturing.
Security/Rights Trademark prevents other A patent prevents other
granted. companies from using the companies from selling,
mark. producing, or using the
product.
Terms A trademark registration’s The duration of a patent is 20
duration is 10 years years.
Registration A businessman can decide if To have a patent one has to
he or she wants to register register.
the trademark or not.
Requirements A mark must be distinctive An invention must be new,
to be (i.e., that is, it must be useful, and nonobvious.
Protected capable of identifying the
source of a particular good)
What is Any word, phrase, symbol, Inventions, such as processes,
protected and/or design that identifies machines, manufactures,
and distinguishes the source compositions of matter as well
of the goods of one party from as improvements to these.
those of others