This section on copyright is intended to provide an overview to copyright in the India and to answer many of the questions IRRO receives from organisations and individuals.
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. In fact, 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.
In India, the Copyright Act, 1957 came into effect from January 1958. This Act has been amended five times since then, i.e., in 1983, 1984, 1992, 1994 and 1999, with the amendment of 1994 being the most substantial. Prior to the Act of 1957, the Law of Copyrights in the country was governed by the Copyright Act of 1914. This Act was essentially the extension of the British Copyright Act, 1911 to India.
Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.
Copyright arises automatically when a work that qualifies for protection is created. The work must be original in that it needs to originate with the author who will have used some judgment or skill to create the work – simply copying a work does not make it original. There is no need in the India to register copyright. When an idea is committed to paper or another fixed form, it can be protected by copyright. It is the expression of the idea that is protected and not the idea itself. People cannot be stopped from borrowing an idea or producing something similar but can be stopped from copying.
The main categories of works currently protected in the India include:
As a general rule, the owner of the copyright is the person who created it, i.e. the author. An author could be the writer, the composer, the artist, the producer or the publisher or another creator depending on the type of work.
One important exception to this is when an employee creates a work in the course of their employment in which case the copyright owner will be the employer.
Where more than one person is involved in the creation of a work and it is not possible to distinguish exactly what each contributed, copyright will be owned jointly and no single contributor can publish or license the work without the consent of the other/s.
A copyright owner has both economic and moral rights.
Economic rights cover acts that only the copyright owner can do or authorise. These include the right to copy the work, distribute copies of it, rent or lend it, perform or show it, communicate it to the public (including making it available online) or adapt it (e.g. making it into a play).
Moral rights include the right to be identified as the author, the right not to have a work that they did not create falsely attributed to them and the right to object to the derogatory treatment of the work. Moral rights are rights authors retain in their works irrespective of who owns the economic rights – they can be waived, but not licensed or assigned.
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The general rule is that copyright lasts for 60 years. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication.
It is an infringement of copyright to do any of the following acts in relation to a substantial part of a work protected by copyright without the consent or authorisation of the copyright owner:
As mentioned above, for infringement to take place it must involve a substantial part of the work. Whether or not the part to be reproduced is substantial is subjective and the quality, importance or significance of the extract are equally as important (some may say more so) as the quantity of words or lines – using just four lines of a poem or even a four word extract have been found to be substantial. The test is subjective. It is often said that if something is worth copying, it is worth
Secondary infringement may occur if someone, without the permission of the copyright owner, imports an infringing copy, possesses or deals with it or provides the means for making it.
There are a number of remedies a copyright owner can obtain in a civil action for infringement. These include seeking an injunction to prohibit further infringement, damages for loss, an account of the infringer’s profit, an order requiring the infringer to deliver all infringing articles to the owner or the right to seize such copies.
There are certain acts conducted without a copyright owner’s consent which may be classed as criminal offences and may result in fines and/or imprisonment. A person commits an offence if he knew/had reason to believe they were conducting any of these acts or that their act would cause an infringement.
A company can be guilty of copyright infringement as can an officer of the company who consented or aided the infringement.
There are a number of specified copyright exceptions in Indian law which permit copying in certain circumstances.
In addition to the specified exceptions, there exists a group of exemptions which fall within the scope of ‘fair dealing’. Material reproduced for the purposes of non-commercial research or private study, for criticism or review or for the reporting of current events is included in this group. If material is reproduced for these purposes, provided it is genuinely and fairly used for the stated purpose, and is accompanied by a sufficient acknowledgement, it may be considered fair dealing and thus exempt from clearance. However, the test is subjective and will depend on the circumstances of each case.
If the material you wish to reproduce does not fall within one of the exceptions, or if you are unsure, you should contact the copyright owner, or someone authorised by them to grant the necessary permission. For most published works this will be the publisher, contact details for which will be found on the publication itself. Permission will generally be needed for each and every occasion the material is used. There are no industry-fixed fees (they are at the discretion of the
party granting the permission). In many cases, even when reproduction of the extract may not warrant a fee, merely an acknowledgment, there may be a minimum sum charged to cover administration. Depending on the amount of material you wish to reproduce and the frequency copying is required, you may find it more beneficial to take out a licence from a licensing society such as the IRRO.
IRRO is a licensing body as defined by the Copyright Act, 1957 (14 of 1957). It is authorised by artists, publishers and visual creators to issue collective licences which allow copying from books, journals and magazines (including certain electronic publications), within certain limits and subject to certain exclusions.
IRRO issues blanket licences to organisations – the licences are issued on an annual basis subject to an annual fee which covers copying throughout that year (thus removing the need to seek permission every time you want to copy) and includes an indemnity from IRRO for all copying done within the terms and conditions of the licence.
For more information on whether or not you need a IRRO licence, please go to the section on the website entitled ‘Do I need a licence?’.
For a listing of other organisations concerned with or related to copyright and the creative industries, please see the section of the website entitled Related organisations and links.
It is hoped that the above provides a helpful overview to the law of copyright and the use of copyright material. It is not intended to constitute legal advice and should not be relied on as such.