MODULE – 5, Lecture 1-20.5.

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Copy Right: Introduction, Ownership of copy right, Rights conferred by copy

right, Terms of copy right, License of copy right, Infringement of copy right,
Remedies against infringement of copy right.
Trade Marks: Introduction, Statutory authorities, Procedure of registration of
trademarks, Rights conferred by registration of trademarks, Licensing in trade
mark, Infringement of trade mark and action against infringement.
 Copyright: Introduction
• Copyright is a right given by the law to creators of literary, dramatic,
musical, and artistic works and producers of cinematograph films and
sound recordings.
• It is a bundle of rights including, inter alia, rights of reproduction,
communication to the public, adaptation and translation of the work.
• There could be slight variations in the composition of the rights
depending on the work.
• The function of copyright is to protect the fruits of a man’s work,
labour, skill, or test from being taken away by other people.
• Copyright is an exclusive right given by law for a certain terms of years
to an author, composer to print, publish or sell copies of his original
work
• Copyright ensures certain minimum safeguards of the rights of authors
https://copyright.gov.in/documents/handbook.html
over their creations, thereby protecting and rewarding creativity.
 Copyright: Introduction
• Copyright is an exclusive right to do or authorize others to do certain
acts, like
• Literary work
• Dramatic work
• Musical work
• Artistic work
• Cinematograph
• Sound recording
 Characteristics of copyright

• Creation of a statute
• Some form of intellectual property
• Monopoly right
• Negative rights
• Multiple rights
• Copyright only in form not in idea
• Neighbouring rights
 Creation of a statute

• It’s a creation of a specific statute under present law

• There is no such thing as common law copyright.
 Some form of intellectual property

• A copyright is a form of intellectual property.

• Here the product over which the right is granted (for example literary
work) is the result of utilization and investment of intellect .
 Monopoly right

• Restraining others from exercising that right which has been

conferred on the owner of copyright.
 Negative right

• Negative right is prohibitory in nature

• It’s a right to prevent others from copying or reproducing work.
 Object of copyright

• Encourage authors, composers and artists to create original work by

rewarding them with the exclusive right.
 Multiple rights

• Copyright is not a single right

• It consists of a bundle of different rights.
• Example 1: in case of literary work copyright comprises the right of
reproduction in hard back & paper back editions.
• Example 2 : the right of serial publication in newspapers and
magazines.
 Neighbouring rights
• Copyright consists not merely of right to reproduction
• It also consists of right to works derived from original work
• Example: right of public performance
Recording right
broadcasting rights

• Neighbouring rights are as important or even more than the right of

reproduction.
 Main features of copyright act of 1957

1. Creation of a copyright office to facilitate registration of copyright.

2. Definitions of various categories of work in which copyright subsists
and scope of rights conferred on author.
3. Term of copyright for different categories of works
4. Provisions relating to assignment of ownership and licensing of
copyright including compulsory licensing .

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 Main features of copyright act of 1957
5. Provisions relating to performing rights of or by societies.
6. Broadcasting rights
7. International copyright
8. Definition of infringement of copyright.
9. Exception to the exclusive right conferred on author.
10. Authors’ special rights
11. Remedies against infringement.
 Author & ownership of copyright
• The originator of an idea is not the owner of copyright.
• Copyright belongs to the person who gives concrete form to the idea
• Since there is no copyright in ideas the originator of a brilliant idea is
not the owner of copyright unless he is also the creator of work.

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 Author in relation to various categories of works
1. Literary or dramatic work, the author of work
2. Musical work, the composer in relation to a musical work
3. Any artistic work other than a photograph, the artist
4. Photograph, the person who takes the photograph
5. Cinematograph film, the producer
6. Sound recording, the producer
7. The author of a newspaper report is the person who writes it and not
the person supplying the news.
8. A journalist who writes a news story on the life story of another on the
basis of such a narration made to him is the author of the story so
published.
 Ownership of copyright
1. The author of the work is the first owner of copyright.
2. The copyright in a work done by an employee on his own time and not
in the course of his employment belongs to him.
3. Where a work is made in the course of authors employment under a
contract of service employer will be the first owner of copyright.
4. If the address or speech is delivered on behalf of any other person such
other person will be the owner of copyright
5. In the case of government /public sector work , the government/public
sector is the owner of copyright.
6. If the work is of international organisation then then international
organisation will be the first owner.
 Ownership of copyright contd..
7. Apprenticeship: an apprentice is a student. The master teaches and other
serves the master with the intention of learning. Hence the work belongs to
the teacher.
8. If an employee teaching in a school or university writes a book on the
subject he is the author and owner of the copyright because he is employed
to teach and not to write text books.
9. The first owner of copyright in the collective work is a person who has
collected, edited and organized the work.
10. The first owner of a copyright in a musical work is the composer of work.
11.The plan of a building or a structure is the copyright of the architect.
12. In photography person taking the photograph is the owner of copyright.
Rights conferred by copy right
 Nature of Rights

1. STATUTORY RIGHTS
2. NEGATIVE RIGHTS
3. MULTIPLE RIGHTS
4. ECONOMIC RIGHTS
5. MORAL RIGHTS

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 Statutory Right
• The copyright in a work is a creation of statute.
• A person owns a copyright because the law recognises the existence
of such a right.
Case1: literary, dramatic or musical work
1. To reproduce the work in any material form including the storing.
2. To issue copies of the work to the public.
3. To perform work in public
4. To make any translation of the work
5. To make any adaptation of work.
Case2: in case of computer programme
2. To do any of the acts specified in case 1
3. to sell or give on hire any copy of computer programme
 Negative Right
• Copyright is a negative right in the sense that it stops others from
exploiting the work of the author for their own benefit without the
consent of author.
• It does not confer any positive any positive on the author himself.

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 Multiple Rights

• Copyright is not a single right

• It consists of a bundle of different rights.
• Example 1: in case of literary work copyright comprises the right of
reproduction in hard back & paper back editions.
• Example 2 : the right of serial publication in newspapers and
magazines.

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 Economic Rights

• Exploitation of the work by the author by exercising these rights may

bring economic benefit.
• The author may exploit the work himself or license others to exploit
any one or more of the rights for a consideration which may be in the
form of royalty, a lump-sum payment.

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 Moral Rights
1. Integrity rights: It gives the author the right to
prevent alteration, destruction that may damage
the authors reputation.
2. Divulgation right:
a. it means right of author to publish a work, or to
withhold it from dissemination.
b. It gives the author the right to decide whether to
publish or not to publish the work.

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3. Attribution right: it gives the author the right to claim
authorship of a published or exhibited work.
4. Retraction right: it gives the author the right to
withdraw a published work from distribution if it no
longer represents the views of the author.

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Terms of copy right
 Term of the copyright
• Term of copyright is fixed keeping in view the interest
of the author and that of the general public.
• The interest of the author is in protecting his work as
long as possible.
• The interest of public is served by recognizing
‘principle of fair dealing’ where the use of the
copyright work by a person other than the author
himself does not constitute infringement of copyright.
Term of copyright in literary, dramatic, musical or
artistic works
• Life time of the author
• Plus 60 years after death of author
Term of copyright in photographs
Copyright shall subsist until sixty years from the year in
which photograph is published.
Term of copyright in cinematograph films
Copyright shall subsist until sixty years from the year in
which film is published.

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Term of copyright in sound recording
Copyright shall subsist until sixty years from the year in
which work is published.
Term of copyright in government works
Copyright shall subsist until sixty years from the year in
which work is published.
Broadcast reproduction right
Shall subsist for 25 years
Performers right
Shall subsist for 25 years

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Assignment/licence of
copyright

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 Assignment/licence of copyright
• Copyright is a bundle of rights comprising of multiple
rights.
• Example: a novel can be published as a
volume ,serialized in a news paper or magazine or can
be licensed for being made into a film.
• Each of these rights can be assigned or licensed for a
limited term.
• While assignment is a transfer of ownership in rights
to the assignee, a license is a permission to do
something in respect of work.

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 Assignment of copyright
• Assignment may be for full term of copyright or for a
limited period of time.
• Assignment may be on a territorial basis that is for a
particular country.
• Example: an author assigns the right to serialize the
work into a television serial to a producer for a period
of 20 years provided the serial is broadcast only
within the territory of india.

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 Mode of assignment
• Assignment is valid only when it is in writing signed by
the assignor .
• The assignment instrument shall identify the work
and specify the rights assigned.
• The instrument of assignment of copyright shall also
specify the amount of royalty payable
• When the period of assignment is not stated the
period shall be deemed to be 5 years from the date of
assignment.

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 License of a copyright

• A license can transfer the interest in a copyright.

• In a license the rights granted are limited.
• Ownership in the rights remains with the author.
• In the case of assignment the ownership in the rights is transferred to
assignee.

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Infringement of copy right
 Infringement of copyright
• Purpose of protecting copyright of an author is to protect his work and
inspire him to exercise his creativeness.
• A copyright confers exclusive right on the copyright owner to the
reproduction of work in a material form, storing work in any medium,
publication of work etc.
• These rights are conferred on the owner of copyright to enable the benefit.
• If any of the above acts are carried out by a person other than owner of
copyright without a license from owner it constitutes an infringement of
copyright.
 Examples of infringement
• A printer takes a copy of the latest book released by another publishing
house makes copies of same and circulates them in market.
• The unauthorized video films in circulation in market are all instances of
infringement of copyright in cinematograph film.
• A book is published in America by a publisher there. Indian visitor to that
country gets a copy of that book makes further copies and floods Indian
market.
 Some of the commonly known acts involving infringement of
copyright:

1. Making infringing copies for sale or hire, or selling or letting them

for hire;
2. Permitting any place for the performance of works in public where
such performance constitutes infringement of copyright;
3. Distributing infringing copies for the purpose of trade or to such an
extent so as to affect prejudicially the interest of the owner of
copyright ;
4. Public exhibition of infringing copies by way of trade; and
5. Importation of infringing copies into India.
Elements need to be present to make an act an infringement
1. Substantial copying
a . Volume of material borrowed by defendant
b. The extent to which the plaintiff and defendants work are competing
with each other.
2. Direct evidence of copying from source
a. Evidence of copying can be found when the defendants work contains
the same errors, mistakes as those present in plaintiffs works
b. similarity in language and writing style also provides evidence of
copying.
3. Indirect copying
It is infringement of copyright to produce a work similar to original
copyrighted work even if the defendant has never seen plaintiff work ,but
has copied from an intermediate copy.
 Acts not constituting infringement
• Reproduction of judicial proceedings
• Publication in a collection for use in educational institutions
• Causing a sound recording to be heard in public
• Reproduction in news papers and magazines of an article on current
topics
• Publication in news papers or magazines a report of lecture delivered in
public
 Acts not constituting infringement
• Making maximum of 3 copies for use of a public library.
• Reproduction of unpublished work for study or research.
• In case of computer programs to make back up copies purely as
temporary protection against loss, destruction or damage.
• Making copies of computer programs for a non commercial personal
use.
Remedies against infringement of copyright
 Introduction to Trademark
• Trademark in general is some symbol consisting in general, of a
picture, label, word or words which is applied or attached to goods of
a trader.
• A trademark is a property right and law protects that right.
• A trademark is a visual representation attached to goods for the
purpose of indicating their trade origin.
 Mark

• Definition of mark : mark includes a device, brand, heading, label,

name, signature, word, letter, shape of goods, packaging or
combination of colors.

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 Trademark

• Definition of trade mark: it is defined as a mark capable of being

represented graphically and which is capable of distinguishing the
goods or services of one person from those of others and may include
shape of goods their packaging and combination of colors.

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 Statutory authorities for trademarks in India
1. Office of the Controller General of Patents, Designs & Trade Marks
(CGPDTM)
• Under the Department for Promotion of Industry and Internal Trade
(DPIIT), Ministry of Commerce and Industry.
• Administers the Trade Marks Act, 1999.
2. Registrar of Trade Marks
• Responsible for the registration and maintenance of trademarks.
• Operates through the Trade Marks Registry, which has offices in Mumbai,
Delhi, Kolkata, Chennai, and Ahmedabad.
3. Intellectual Property Appellate Board (IPAB) (Note: Abolished in 2021)
• Functions now merged with High Courts as per the Tribunals Reforms Act,
2021.
Statutory authorities for trademarks in India contd..

4. Courts of Law (High Courts and Supreme Court)

• Handle trademark infringement and passing-off cases.
• Also hear appeals against decisions of the Registrar of Trade Marks.
5. World Intellectual Property Organization (WIPO)
• For international trademark applications under the Madrid Protocol,
of which India is a member.
 Procedure of registration of trademarks
Step 1: Present a written application in office.
Step 2: It could be accepted absolutely, rejected
absolutely or accepted conditionally.
Step3: if accepted absolutely or conditionally and found erroneous later
withdrawal of acceptance.
Step4: if no correction advertisement of application.
Step5: if no opposition, certificate of registration issued.
Rights conferred by registration of trademarks
 Licensing in trademark

•,
Infringement of trademark and action against infringement
 Remedies against infringement of trademark

• Civil remedies
• Criminal proceedings
• Administrative remedies
Civil remedies

• When instances of infringement and passing off occur

the court can be moved for grant of interlocutory
injunction, damages or accounts of profits.
Criminal proceedings
• Complaint may be made against the person causing infringement.
• Under civil law proceedings plaintiff seeks reliefs for himself while
under criminal law proceedings the complaint seeks award of
punishment to infringer.
Administrative remedies
• Opposing the registration of a deceptively similar trademark when
trademark registry is in the process of considering the grant of a
trademark can protect the trademark.
Introduction
• A consumer is duped if he buys a commodity
presuming it to have originated from a certain
identified source when actually it is not.
• In the process reputation of trader suffers.
• Interests of both the consumer and the trader can be
saved if some definite symbol which marks out the
origin of goods from a definite trade source is
attached with the goods.
• Such a symbol is called trademark.

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