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COPY RIGHTS

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Copy right is the right in the literary property as recognized and sanctioned by positive law .It is intangible ,incorporate right granted to the author or originator of literary or artistic production whereby he is invested for a specified period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them .

Copy right is an exclusive right given by the law for a certain term of years to an author ,composer ,producer or his assignee or licensee to print ,publish or sell copies of his original works .

By virtue of Indian copy right act, the copy right shall subsist through out India in the following classes of works

  • Original dramatic ,literary ,musical and artistic works
  • Cinematograph films and
  • Sound recording

The exclusive right includes the right to reproduce, to issue copies, to perform the work, to make any cinematography films, to make translation of of the work, to make any adaption of the work (adaption means conversion of a dramatic work into non dramatic work or vise versa)

ESSENTIAL CONDITIONS FOR THE SUBSISTENCE OF COPY RIGHT

In order to subsist copyright the following conditions should be satisfied

  • The work should be first published in India
  • If the work was first published outside India ,the author should be  a citizen of India on the date of such publication
  • In case of publication outside ,if the author was dead on the date of publication ,he should be  a citizen of India on the date of his death

GENERAL PRINCIPLES

  • Non registration of copy right does not effect the copy right

Registration is not a precondition for bringing an action for infringement of copyright .Registration serves the purpose of prima-facie proof of possession of copy right in the person.

  • There can be no copy right of an idea

What is protected under the copy right is not the original thought or information but the protection is to the original expression ,thought  or information in some concrete form .If the theme is the same but presented and treated differently ,the subsequent work becomes a completely new work and the question of violation of copy right does not arise .Copy right act does not require that the thought must be original or novel .In order to get the copy right the work must not be copies from another work .The manner of expression  of thought must be original

OWNER AND AUTHOR OF COPYRIGHT

  • In case of the literary works the author of the work will be the owner of the copy right.
  • In case of musical works, the composer of the musical work will be the owner of the copy right.
  • In case of the artistic work  other than a photograph ,the artist is the owner of the copy right
  • In case of a photograph ,the person who has taken the photograph is the owner of the copy right
  • In case of a cinematograph film ,the producer is the owner of the copy right
  • In case of a sound recording ,the producer is the owner of the copy right
  • In case of the literary ,dramatic ,musical ,or artistic work which is computer generated ,the person who causes the work to be created is the owner of the copy right

Exceptions

In the absence of any agreement to the contrary,

·         If the literary ,dramatic or artistic work is made by the author in the course of his employment by the proprietor of a news paper ,magazine or periodical under a contract of service or apprenticeship for the purpose publication ,the said proprietor will be the first owner of copy right

·         In the case of photograph ,painting or portrait ,if a photograph is taken or a painting or portrait is drawn or engraving or a cinematograph film is made for valuable consideration  at the instance of a person ,such person shall be the first owner of the copy right

·         If any work is done in the course of author’s employment under a contract of service the employer will be the first owner of the copy right.

·         If a person has any delivered any address or speech in public ,that person will be the first owner of the speech

·         In case of a government work ,the government is the owner of the copy right

·         In case of a work made or first published by any public undertaking such public undertaking shall be first owner of the copy right in the absence of an agreement to the contrary

·         If an employee is teaching in a school ,college or university writes a book on the subject he teaches ,he is the owner of copy right

 

REGISTERATION OF COPY RIGHT

The author, publisher or any person interested in the copy right in any work may make an application for the registration shall be made in the prescribed form and should be accompanied by the prescribed fee. on a receipt of an application for registration ,the registrar shall hold necessary inquiry and enter the particulars of work in the register of copy rights .When a copy right is registered ,the name of the title of work and the name and address of author ,publisher and the owner shall be entered into the register of copyrights

TERM OF COPY RIGHT

  • Term of copy right  in literary ,dramatic ,musical ,or artistic work which is published  within the life time of the author ,the copy right shall subsist until 60 years from the beginning of the calendar year next following the year in which the author dies
  • In case of a literary ,dramatic ,musical or artistic work which is published anonymously or pseudonymously copy right shall subsist for 60 years from the publication .If the identity of the author is disclosed before the expiry of the said period ,copy right shall subsist for 60 years more after the death of the author .
  • If a copy right exist for a work on the death of the author and the work has not been published before his death ,but published after  his death  the copy right shall subsist for next 60 years
  • In case of photograph 60 years from the date of publication
  • In case of cinematograph film ,60 years from publication
  • In case of sound recording ,60 years from publication
  • In case of government works ,60 years from publication
  • Broad cast reproduction right ,25 years from the broad cast is made

 

NEIGHBORING RIGHTS

This includes

  • broadcast reproduction right –25 years from the date of broadcast
  • Performers right-25 years from the date of performance

INFRINGEMENT OF COPY RIGHT

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A copy right confers exclusive right on the copy right owner to the production of work in a material form ,storing the work in any medium by the electronic means ,publication of the work ,performances of the work in public ,making of its adaptations and translations .These rights are conferred to the owner of the copy right to enable him to reap monetary benefits .If any of the above acts are carried out by a person other the owner of copy right without license from the owner it constitutes infringement of copy right

Copy right is granted for a specific period of time .Whether an act is infringement is not depend on the fact that whether the copy right is subsisting in the work or not .In case the copy right in the work has expired, the work falls in public domain and act of reproduction of the work by any person would not amount to infringement

If a person without the consent or license of the owner of copy right does or authorizes the doing of any of the following acts he will be guilty of infringement of copy rights in the work.

  • To reproduce the work in any material form including the storing of it in any medium by electronic means
  • To issue copies of the work to the public not being copies already in circulation
  • To perform the work in public or communicate the work to public
  • To make any cinematograph films or sound recording in respect of the work
  • To make any translation of the work
  • To make any adaption of the work
  • To make infringing copies of the work for the sale or for hire or sell or lets for hire or display or offers for sale or hire infringing copies
  • To distribute infringing copies either for the purpose of trade or to such an extension as to effect prejudicially the owner of copy right
  • To exhibit infringing copies by way of trade
  • To import into India infringing copies of the work for trade

 

EXCEPTIONS 

  • a fair dealing with a literary ,dramatic ,musical or artistic work for the purpose of private use including research ,criticism or review
  • reproduction of judicial proceedings and reports thereof
  • reading or recitation in public of extracts
  • publication in a collection for use in educational institution in certain circumstances
  • reproduction by teacher in course of instruction or in question papers or answers
  • making a maximum of there copies for use of public library
  • reproduction of unpublished work kept in a museum or library for the use of study or research
  • Reproduction of any judgment or order of court ,tribunal ,or other judicial authority not published from publication
  • Making or publishing of a painting ,drawing or photographs of a works of architecture
  • Making or publishing of  a painting ,drawing or photograph or engraving of sculpture or other artistic work permanently situated in a public place
  • Inclusion in cinematograph film of any artistic work permanently situated in a public place or other artistic work by way of background or incidental to the principal matter represented in the film

REMEDIES

·         Civil remedies

The owner of the copy right is entitled to the civil remedies by way of injunctions, compensations and accounts profit

·         Criminal remedies

The infringement of copy right is an offence punishable with imprisonment which may extent from a minimum period of 6 months to a maximum period of 3 years and of fine of 50,000 to 2 lakhs

·         Administrative remedies

The owner of copy right may apply to the registrar of copy right to ban the import of infringed copies to India when the infringing is by way of such infringement

Moral rights

The two kinds of moral rights are

·         The paternity right –right to claim authorship

·         The integrity right –right to protect his honor and reputation

 

                                 TRADE MARK

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A trade mark is a visual representation attached to goods for the purpose of indicating their trade origin .A trade mark is a visual symbol in the form of a word, a devise or label applied to articles of commerce with a view to indicate the buyers that the goods are manufactured by particular organization as distinguished from similar goods manufactured by others

The definition of trade mark given by Trade marks act 

  • It is a mark capable of represented graphically
  • It must be capable of distinguishing the goods or services of one person from those of others
  • It may include shape of goods ,their packing and combination of colors
  • It must be used or proposed to used to in relation to goods or services
  • The use must be for the purpose of indicating a connection in the course of trade between the goods or services and some persons having the right as proprietor to use the mark
  • It includes collective mark and certification trade mark

The most important functions of trade mark are the following

  • It identifies the product and its origin
  • It guarantees its quality
  • It advertises the product
  • It creates an image of the product in the minds of the public particularly consumers

ESSENTIAL CHARECTERISTICS OF GOOD TRADE MARK

·         A trade mark should be distinctive

·         The word or name used should be easy to pronounce

·         It must be easy to pronounce  and easy to spell correctly

·         It should be not descriptive

·         It should be short

·         It should appear to the eye as well as to the ear

 

REGISTERATION OF TRADE MARK

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A person who wants to register his trade mark has to make an application for registration .Application can be given to the head office or branch office .The head office is at Bombay .After receiving an application for registrations the registrar shall give advertisement of the application .Any person, who claims an interest in registration the registrar decides either to register the trade mark or to reject the application.

An application of trade mark may be refused under the following circumstances

  • A trade mark is not having any distinctive character (is not capable of distinguishing goods )
  • It is of such a nature as to deceive the public or cause confusion
  • If it contains any matter likely to hurt the religious feelings of any class or section of citizen of India
  • If it contains scandalous or obscene matter
  • If jits use jis prohibited under the Emblems Names ( prevention Of Improper Use Act )
  • If a trade mark is well established well known trade mark the same may be registered by the registrar.

 

DURATION OF TRADE MARK

The registration of a trade mark shall be for a period of 10 years .It can be renewed for another period of 10 years by paying the renewal fees .By renewing, the duration can be extended for any number of years.

Collective Mark is a trade mark distinguishing the goods or services of members of an association of persons other than a partner ship which is the proprietor of the mark from those of others.

Certification trade mark means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services in the name as proprietor of certification trade mark of that person.

 

INFRINGEMENT OF TRADE MARK

Infringement of trade mark occurs when a person other than the registered proprietor uses the same mark or a deceptively similar mark in relation to the same goods or services for which the mark is registered .When there is infringement of trade mark the proprietor of trade mark can file a suit for infringement and obtain an order of injunction or damages .He can also sue for accounts of profit. A suit for infringement is to be instituted in a district court within 3 years.

DEFENCES

  • The plaintiff in the suit has no title to sue
  • The defendant is the prior user
  • Bonafied use of his own name ,address and description
  • The defendant can attack the validity of registration of trade mark by the plaintiff
  • The defendant cannot plea that he had adopted that he had adopted the trade mark of the plaintiff without the knowledge of existence of plaintiffs trade mark .In other  words innocent infringement cannot be pleaded

 

Passing off

Where there is an infringement of good will of another person the aggrieved person can file a suit for the tort of passing off .The defendant is liable for the tort of passing off under the following circumstances.

  • If the defendant has used the same name for his business concern as that of the plaintiff
  • If the defendant has used the same name for his product as that of the plaintiff with the object of creating a belief in the mind of the public that the goods are of the plaintiff
  • If the defendant has made the goods with the same get up as that of the plaintiff with the object of causing a belief in the mind of the public that they are of the plaintiff’s goods

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