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Copyright: An intellectual property

Our Constitution gives separate lists of matters within the competence of Parliament alone, of the States alone, and concurrently of both. In the first list, reserved for Parliament, entry number 49 comprises "patents, and designs, copyright, trade marks and merchandise marks."

india Updated: Feb 27, 2006 00:46 IST
KN Goyal
KN Goyal
None

Our Constitution gives separate lists of matters within the competence of Parliament alone, of the States alone, and concurrently of both. In the first list, reserved for Parliament, entry number 49 comprises "patents, and designs, copyright, trade marks and merchandise marks."

These are all forms of intellectual property. Their rationale is given in the US constitution in an article saying, "The Congress shall have the power to promote the progress of science and useful arts by securing for limited times to authors and inventors."

Under the usage of the time (1787) " Science" was the subject matter of copyright while " useful arts" the subject matter of patents.

In fact both are forms of intellectual property, while trademarks and merchandise marks, which are absent from the aforesaid article of the US constitution, are more meant to protect people successful in innovations in trade and commerce.

The key words in the said US clause are " progress" and "limited times". The first is the justification for copyright and the second, for limitation of period for which copyright lasts. High protectionists argue that unless greater protection is given authors and their publishers will have no incentive to create and publish new works.

For limitation of time it is argued that every writer invariably draws on the works and traditions of earlier writers, so why should he not share it with the succeeding generations?

Indeed much of India's ancient knowledge was lost with time because the rishis, astronomers, mathematicians, physicians etc. would not allow a stranger to the family or a person of a different caste or sect to get access to it. That factor enabled the west that was much behind us in civilization goes far ahead of us and we became an undeveloped country.

It is because of the limitation of time that for instance the works of Tagore, Sharat Chandra, Bankim, Prem Chand, Bharatendu Harish Chandra, Nirala,Pant or Shekespeare, Keats, Shelley, Thomas Hardy, Tolstoy, Mirza Ghalib and numerous others are free from any copyright today. Anybody can today publish his or her cheaper editions.

Thus films like Hamlet, Macbeth, Biraj Babu, Godan, Devadas, Parineeta and serials like Nirmala and Charitraheen or those based on Ramayana, Mahabharat are made repeatedly without any permission having to be taken from anyone.
In literary works, copyright law is the child of the invention of printing press. At the time when works were written on parchment there was hardly any scope for wide circulation or of their commercial use.

Today intellectual property piracy is an offence. In actuality it is so rampant that CDs of movies are available in the black market even before they are released in halls. In the words of Professor Goldstein, " photographs, sound recordings, motion pictures, video cassette recorders, CDs, DVDs and digital computers have dramatically expanded the market for mechanically reproduced entertainment and information, and the increased role of copyright in ordering these markets, yet these very some technologies, dramatically abetted by the powers of the Internet, are today testing copyright's ability to order the market place for information and entertainment."

Copyright is not a fundamental right in India. It differs from country to country. The law of copyright has evolved with the technological advances. Copyright originally meant only the right to make copies of a written work and to stop others from making copies without one's permission.

Later it came to cover even abridgements, limitations, adaptations, translations, dramatization (for the theatre or cinema) of a story or novel. Parodies or making purely private copies by way of fair use are not treated as infringements as illustrated in the Live Crew case (1992 US-Court of Appeals). Limited quotations from the original work are permitted while reviewing a book or critically examining the author generally.

Excessive extracts even by a reviewer or critic will however amount to crossing the Lakkshman-rekah. The author has the right to keep trespassers off his land except for a limited period and for a legitimate purpose.

There have been many historic courtroom and legislative battles in the US and UK between opposing interests.

As our latest Copyright Act 1957 (as amended in 1988) supplemented by the statutory order of 1999 relating to international copyright stands today a " work" which can be subject to copyright means-
(i) A literary, dramatic, musical or artistic work,
(ii) A cinematograph film,
(iii) A sound recording,
(iv) A computer programme (this was added in 1995 and elaborated in 2000)

The term of copyright in India is now limited to sixty years from the death of the author. In the case of musical recordings, films, photographs etc and anonymous writings it is sixty years from the date of the first publication of the work.
The normal rule is that the author of a work is the first owner of the copyright and it is he who has the right to assign it to anyone else, -either wholly or portionally or subject to some limitations and reservations.

However if the author was at the time of writing employed by some newspaper, magazine, etc. the employer shall have this right unless the author has reserved the right under an agreement with the employer.

Merely giving of some honorarium by the publisher to the author does not however amount to such employment and the author retains his copyright in the absence of any agreement.

Some reputed newspapers and magazines however insist that they will not publish a piece unless the author assures them that it has not already been published elsewhere. In such cases too after the item is published in that magazine or newspaper it can be sent by the author for publication elsewhere.

In USA in 1998 a separate Digital Millennium Copyright Act was enacted. It added new prohibition against unauthorized access to a work by circumventing a technological protection measure put in place by a copyright owner.

We may thus expect lots of new developments in the law in the future for coping with continuous advances in technology.

First Published: Feb 27, 2006 00:46 IST