- Anamika Jha
- 13 August 2020
Essentials of Copyright
Basic features of the Copyright Law and the Economic and Moral Rights
You are the most passionate creator in the world. You conceive your idea like a baby. Further, you nurture and develop the same into your creation/script. All this requires hard work, talent, and persistence. Imagine how devastating it will be to know that someone has blatantly copied the fruit of your hard work. Even worst, what if you have unknowingly copied someone else's work? It is scary!
Let me tell you a way out. Just grab the protection and prevention kit known as 'Copyright'. I recommend that every artist must be aware of the basics of Copyright Law to avoid such mishaps.
Copyright is the principal law which governs the creation and expression of an Art/work. Therefore, every artist should at least know the following five basic points of Copyright Law.
Let's count at the fingertips!
1. The Copyright law protects a wide range of original work including literary work (books, speeches, magazine and newspaper articles, novels, stories, poems, essays, etc.), musical work, artistic work (drawings, paintings, photographs, comics, sculptures, architectural works, maps, etc.), dramatic work (plays, operas, and dance, etc.), Cinematographic film, sound recording, and computer software.
2. Copyright does not protect facts, historical incidents, news, ideas, concept, principles, words, phrases, title, names, symbols, work in the public domain, etc.
3. Registration of the work is not mandatory under Indian Copyright Law (Copyright Act, 1957). However, it is desirable to get your work registered before you share it with any other person. The registration is the prima facie evidence of the authorship of the work. If you produce a registered copy of a work, then you do not have to produce any other evidence to prove that you are the rightful author of the work. The burden of proof shifts to any other person who is contradicting that you are the author of the work.
4. Generally, I find my clients confused with Copyright assignment and Copyright license. There is a difference between the two. An assignment of copyright is a transfer of ownership. It must always be in writing and signed by the copyright owner. A license simply allows another person to use the work without transferring ownership. For example, if a screenwriter assigns all rights of his script to a production house, then the production house becomes the owner of the script. However, a software developer licenses a user to use the software. The developer remains the owner of the software.
5. When you create a piece of work, you enjoy both 'Economic Rights and 'Moral Rights' over the same. These are two aspects of Copyright. Economic rights protect your financial interest. Moral rights protect your personality interest. Economic rights give you exclusive rights to exploit your work. You can transfer economic rights to anyone after receiving valuable compensation. However, you cannot transfer moral rights. We can divide economic rights into three broad categories. Let's understand each of them.
5.1 ECONOMIC RIGHTS
a) Right of reproduction: Reproduction means the copying of a work in any manner or form. Examples of the same are the copying of an article from a book and its inclusion in a research paper, the storage of a song on a CD-ROM, the recording of a dramatic work as a film, the making of a three-dimensional work from a two-dimensional work, the downloading of a picture from the Internet, etc. An author has the right to prevent the unauthorized reproduction of her work. The right to distribution is another aspect of the right to reproduction. The right of distribution grants the author the exclusive right to authorize distributions of her work to the public. It would make no sense to be able to prevent unauthorized reproduction of your work while at the same time not being able to prevent the distribution of the copies.
b) Rights of translation and adaptation: Translation right means writing work in one language into another language. An adaptation of a work is the adjustment of work, it's re-modeling into another form. Examples include the adaptation of a novel into a film, the fixation of a dramatic-musical work in a film, the adaptation of a poem into a prose work, etc.
c) Rights of public performance, broadcasting and communication to the public: 'Performance' means any acoustic or visual presentation of the work before the public. ‘Public’ not always means the public at large. It means a large number of people who do not qualify as a family or closest social acquaintances. Not all those people need to be present while the work is performed. It suffices that they have access to it. ‘Broadcasting’ refers to transmissions of sounds and/or images by electromagnetic waves (wireless means) to enable reception of the sounds or images, which are transmitted, by members of the general public. An example would be the broadcasting of a documentary by the National Geography by the emission of a terrestrial or satellite TV signal. Do not forget to add communication to the public by the means of internet. If you upload/stream any copyrighted work on the internet without due authorization from the author, you may be liable for copyright infringement. Further, copying work or download the same in your system may amount to infringement of the right to reproduction of the author.
The exercise of economic rights is subject to a few limitations. I shall discuss the same in the next article. Now, let’s jump to moral rights. Moral rights are the special rights of the creator/author of a work that aim to protect certain personal interests. It has two elements namely the 'right of paternity' and the 'right of integrity'.
5.2 MORAL RIGHTS
a) The right of paternity: The 'right to paternity' means the right to claim authorship over the work.
Suppose, you have written a script for a film. A production house is interested in the script. You assigned your copyright in favor of that production house after receiving a fair amount of compensation. The film releases. Wait! Mr. Producer attributed himself as the writer of the film. Your name is nowhere. What will you do now? You have assigned all your rights in favor of the Producer. Does this mean the Producer can call himself the writer of the script that you have written after months of hard work? Here, moral rights come in your rescue. The first element of moral right is the right of paternity. This means an author has the right to be identified as the creator of his/her work. This means that only the creator of the work shall get the credit of the author. This right extends as far as to cover the author’s right to have his name removed from a work that s/he has not authored. Moral rights exist independently of economic rights. It remains with the author even after the transfer of his/her economic rights.
b) The right of integrity: The 'right to integrity' is the right to claim damages if the work is distorted and that caused harm to the reputation of the author/creator.
Suppose, you are a sculptor. The government of India hires you to make a sculpture to be used as décor at the entry of a museum. You made a beautiful snow-white sculpture. You get credited for the same along with your remuneration. One day you visited the museum with your family and came across your sculpture. It was thrown in the storeroom area in poor condition. You shocked to see that somebody had colored it black. You found this highly derogatory. What can you do? Your sculpture was not only distorted but also thrown in bad condition which could affect your reputation as an artist. Again, moral rights come in your rescue. A similar set of facts was there in the case of Amar Nath Sehgal v Union of India (1987). The Delhi High Court held that moral rights include the right of integrity. It is the author’s right to object to any distortion, mutilation or other modification of, or other derogatory action to his work, which would be prejudicial to his or her honor or reputation. There are several other examples; situations where a literary work is paraphrased or reproduced with substantial typographical mistakes and imperfections; the rearrangement of a classical piece of music into disco; a distortion of work while it is performed, etc. Another example can be the placement of work in a derogatory context, for example, the exhibition of a religious painting in a pornographic context.
Please note that the moral right of the author remains in existence even if the author has assigned all his economical rights. A person cannot assign his moral rights. However, s/he can waive off the moral right through a contract. I must tell you considering the benefits of moral rights, do think twice before waiving the same.
I hope now you got an idea about Copyright Law and the economic rights and moral rights that it protects.
Let me know if you have any specific query!
Legal Officer, SWA | Anamika Jha's area of specialization is Intellectual Property Law including Copyright Law and Media & Entertainment Law, while her passion is serving the Creators. She has both litigation and Corporate experience. Blog link: https://www.attorneyforcreators.com/