The need to adapt to its environment to survive, progress and sustain has been fundamental to all human endeavour since the very beginning. This endeavour has always been animated by an idea, which is collectively termed as ‘innovation’. And this ‘innovation’ has been the mantra of human survival and progress throughout the history.
However, if innovation has to remain at the forefront then it must not only be nurtured and promoted but also protected and incentivised. This task of protection and incentivising has been performed in modern society by law and economics.
Law lays down the rules of the game while ensuring protection, incentivising the innovation and economics helps in determining the price of innovation and other things. One such protective mechanism for innovation is called copyright law, which enables an innovator to make a fair economic gain from his innovation technically called ‘original work’. In this context, Indian copyright law, provides for right to grant license and to assign the copyright besides enabling to prosecute and seek compensation from copyright infringers.
The copyright law has its origin in the notion that creativity must not only be protected but also become a source of prosperity for the creator of original work and others, who have been instrumental in enabling the creative idea to take shape and reach its audience. Thus, copyright law protects creativity by devising methods to realise the value of creative work.
However, with the advent of digital technology and the Internet, the fine balance between the idea of fair economic gain from copyright to the creator and fair permissible use of copyrighted original works for reasonable uses have been seriously compromised. The digital technology has made copying of the copyrighted works so easy and fast that it has become a big challenge forcing legal system to rethink and devise ways and means of dealing with it.
On 16th February, 2013 Delhi University organised a seminar on the theme in collaboration with the Ministry of Micro, Small and Medium enterprises (‘MSME’). The event attended by a number of MSMEs, with many prominent personalities in the domain of IPRs in general and copyright law in particular, who waxed eloquent on the pointers and pitfalls of the subject. The event marked a great churning on the issues of copyright in a digital environment and the dos and don’ts form small enterprises. The same are being captured herein in an explanatory narrative.
The small enterprises in India, which are technically described as ‘Micro, Small & Medium Enterprises’, constitute the manufacturing backbone of the country and their importance can be gauged from the facts in the report of the working group on the sector for 12th Five Year Plan (2012- 2017) that: “It is estimated that in terms of value, the sector accounts for about 45 percent of the manufacturing output and 40 percent of total exports of the country. The sector is estimated to employ about 69 million persons in over 26 million units throughout the country.” And the technological challenge to and from copyright law becomes even more dangerous for small entrepreneurs as the ignorance of dos and don’ts under the copyright law and ease, rapidity and seemingly free availability of copyrighted works on the Internet make them vulnerable to the wrath of copyright law, which is violated many a times in innocent belief that none existed in the context of the Internet.
The soul of copyright law resides in the recognition of an essential principle that due respect to a creative person’s creations must be accorded; the creators must not only be able to commercially exploit their creations but also be able to prosecute and seek compensation from the infringers of their copyrights. A copyright means the exclusive right to do or authorise the reproduction, performance in public, depiction, translation, adaptation, making and issuing copies of one’s original works. The copyright exists in all original works – be it literary, dramatic, musical or artistic. The beauty of this right is that it gets created the moment an idea is expressed into any material form. However, it is advisable that for the purposes of evidentiary value of such creation and the copyright therein, it may be registered with the Registrar of Copyrights. The copyright law in India is codified in The Copyright Act, 1957 (the ‘Act’).
The copyright is subject to certain exceptions termed as ‘fair use’ and provided for in S. 52 of the Act. It permits fair dealing with any work for private or personal use, including research, criticism or review, whether of that work or of any other work and reporting of current events and current affairs, including the reporting of a lecture delivered in public but it does not include a computer programme. Besides other permitted ‘fair use’, it includes transient and incidental storage of a work for incidental purposes; reproduction of any work for judicial or legislative purposes or for providing certified copy of a work permitted by law, reading and recitation in public of reasonable extract from a published literary or dramatic work etc.
The owner of a copyright may assign his copyright work to any person completely or in part. The assignment may be granted in a present or a future work. However, the assignment has to be in writing as per the provisions of the Act. Likewise any interest, a copyright may be given by way of a license by the owner of a copyright in an existing work or a prospective owner in future works of a copyright. And it is important to note that an assignee is also an owner for the purposes of licensing. Any dispute as to the assignment or licensing may be referred to the copyright board for resolution.
Technically called ‘Term of Copyright’, the general principle for the duration is that it subsists in any published literary, dramatic, musical or artistic work within the lifetime of the author and sixty years after the death of the author. And the protection extends even to the circumvention of rights management information (RMI), which is nothing but the information that identifies content protected by copyright or related rights, the rights owners in such content and the terms and conditions of use associated with it.
Under section 55 of the Act, the aggrieved person, who alleges that his copyright has been violated, can take recourse to law and seek reliefs in the nature of injunction, damages, accounts and any other relief provided for by law in case of violation of a right. And the defence against any such institution of case is in proving that the infringer on the date of the infringement was not aware and had no reasonable ground for believing that any such copyright existed in the work alleged to be copied. Against such unaware infringer, the only available remedy is injunction against any such infringement and a decree for the whole or part of the profits made by such sale of the infringing copies.
In the context of criminal liability for copyright infringement, it is important to note that police is empowered to seize infringing copies and prosecute offenders. And if one is indulging knowingly in infringing copyright, would attract criminal liability. Depending on the gravity of the offence, offenders can be sentenced as well as fined, and every subsequent violation will bring in an even strict punishment – both in terms of prison sentence and fine.
In a study titled, “Copyright and access to information in the digital environment”, the challenge thrown by the digital age was very aptly captured: “The digitisation and circulation of works over networks such as the Internet means that low-cost, highquality copies can be made quickly, and these copies can also be sent to many other people around the world, irrespective of borders. Furthermore, digital works are easily altered, or even falsified, which means that there are many potential threats to the moral right of authors. Given these facts, it is not surprising that copyright is one of the first areas to have attracted the attention of the international community.” The study was conducted by Severine Dusolliert, Yves Poullet and Mireille Buydens (all from Belgium), at the request of the Sector of Communication, Information and Informatics of UNESCO as a working document for the third UNESCO International Congress on Ethical, Legal and Societal Challenges of Cyberspace (Infoethics 2000).
So if we look at the industries, which are threatened because of ease of causing such copyright infringement, are publishing, software and entertainment. The threat posed to these industries is in terms of piracy, passing off by using similar names, rampant photocopying in colleges, and free downloadability of online content. Such possibility of copyright infringement is the books, journals, CDs, software, movies, music, e-Books, and online books.
Mrs. Pratibha M. Singh, IP Litigator and Managing Partner, Singh and Singh, New Delhi opines that the chances of copyright violations in the multimedia space is huge as “with the advent of technology, Internet and mobile devices have evolved into providing an altogether new platform for entrepreneurs to market and sell their product/ services enabling them to reach out to global markets and customers at nominal costs. In this background, some of the copyright issues faced in the context of the multimedia space by small entrepreneurs are as follows:
Such illegal use without the permission of the author would result in infringement of the copyright in such work. It is pertinent to note that the said instances as mentioned above can also be found for the benefit of the entrepreneur if he/ she finds out that his/her works are being infringed by a third party in similar manner.
Further Mrs. Singh views that by doing the following small entrepreneurs may avoid being either a victim or a perpetrator of copyright infringement:
It can be said that the knowledge of the dos and don’ts will serve a great purpose in protection, particularly of the small entrepreneurs. The small entrepreneurs must remember that though fair use of copyrighted work is permitted but such use should never be done for commercial gain. The moment element of commercial gain gets into the ‘fair use’, the infringement occurs and one may risk civil and criminal liability.
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