1. Intellectual Property Rights (IPR): An Overview
1.1 What is Intellectual Property?
Intellectual property (IP) refers to creations of the mind. It is property that results from creativity. This includes inventions, literary and artistic works, symbols, names, images, and designs used in commerce. An invention patented by an inventor, a novel written by an author, or a painting created by an artist are all examples of intellectual property.
1.2 What are Intellectual Property Rights?
Intellectual Property Rights (IPR) are legal rights that, like any other property right, allow creators or owners of patents, trademarks, or copyrighted works to benefit from their own work or investment in a creation. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from one's scientific, literary, or artistic productions.
The importance of IPR was first formally recognized in two key international treaties:
- The Paris Convention for the Protection of Industrial Property (1883)
- The Berne Convention for the Protection of Literary and Artistic Works (1886)
Both of these treaties are administered by the World Intellectual Property Organization (WIPO).
1.3 Categories of Intellectual Property
IP is divided into two main categories:
- Industrial Property: This includes inventions (patents), trademarks, industrial designs, and geographic indications of source.
- Copyright: This includes literary and artistic works such as novels, poems, plays, films, musical works, drawings, paintings, photographs, sculptures, and architectural designs. Rights related to copyright also extend to performing artists, producers of phonograms (sound recordings), and broadcasters.
2. The Copyright Act, 1957 (India)
Copyright is an exclusive right given by the government to creators to publish, reproduce, or sell an original work, ensuring they can earn from their creations. In India, copyright is governed by The Copyright Act, 1957, which has been amended several times, most substantially in 1994. The Act is compliant with major international treaties like the Berne Convention, the Universal Copyright Convention, and the TRIPS Agreement.
2.1 What Can Be Copyrighted?
Under the Act, copyright subsists in the following classes of work:
- Original literary, dramatic, musical, and artistic works.
- Cinematograph films.
- Sound recordings.
The Act provides specific definitions for these terms:
- Literary work: Includes computer programmes, tables, and compilations, including computer databases. (Remark: The sources note that this definition is incomplete as it does not explicitly cover poetry, drama, fiction, essays, textbooks, etc.)
- Artistic work: Means a painting, sculpture, drawing (including maps and charts), engraving, or photograph, regardless of artistic quality; it also includes works of architecture and artistic craftsmanship.
- Dramatic work: Includes pieces for recitation, choreographic work, or entertainment in dumb show, but not a cinematograph film.
- Musical work: A work consisting of music, including any graphical notation of it, but not the words or actions intended to be sung or performed with it.
- Cinematograph film: Any work of visual recording (like a video film) from which a moving image can be produced, including the accompanying sound recording.
- Sound recording: A recording of sounds from which they can be reproduced, regardless of the medium or method.
2.2 The Meaning and Rights of a Copyright Owner
Copyright is the exclusive right to do or authorize the doing of certain acts in respect of a work. The author of an original work is typically the first owner of the copyright.
The specific rights vary by the type of work:
- For a literary, dramatic, or musical work, the rights include:
- To reproduce the work in any material form, including storing it electronically.
- To issue copies to the public.
- To perform or communicate the work in public.
- To make a film or sound recording of the work.
- To make any translation or adaptation of the work.
- For a computer programme, the rights include all of the above, plus the right to sell or give on commercial rental any copy of the programme.
- For an artistic work, the rights include reproducing, communicating, issuing copies, including in a film, or making an adaptation.
- For a cinematograph film or sound recording, the rights include making a copy, selling or hiring copies, and communicating it to the public.
2.3 Term of Copyright
The duration of copyright protection varies by the type of work:
- For literary, dramatic, musical, and artistic works, copyright lasts for the lifetime of the author plus sixty years following the year of the author's death.
- For cinematograph films, sound recordings, photographs, government works, and works of international organizations, copyright lasts for sixty years from the beginning of the calendar year following the year of publication.
2.4 Copyright Infringement and Fair Dealing
This is the most critical area of the Act for library and information professionals.
What constitutes infringement? Copyright is infringed when any person, without a license from the copyright owner, does anything that the owner has the exclusive right to do. This includes making copies for sale or hire, distributing copies, or importing infringing copies (except for one copy for private, domestic use).
What does NOT constitute infringement? (Fair Dealing) The Act specifies several acts that do not count as copyright infringement. These exceptions are crucial for education, research, and library services. Key exceptions include:
- Fair dealing with a literary, dramatic, musical, or artistic work for the purposes of:
- Private use, including research.
- Criticism or review.
- Reporting current events in newspapers, magazines, broadcasts, or films.
- Educational Use:
- Reproduction of a work by a teacher or a pupil in the course of instruction.
- Including a work as part of questions to be answered in an examination.
- Performance of a work by staff and students of an educational institution if the audience is limited to them, their parents/guardians, and persons connected with the institution.
- Library and Archival Use (Highly Important):
- The making of not more than three copies of a book by or under the direction of the person in charge of a public library for the use of the library, if such book is not available for sale in India.
- The reproduction of an unpublished literary, dramatic, or musical work kept in a library, museum, or other public institution for the purpose of research or private study. This is only allowed if the reproduction is made more than sixty years after the death of the author.
- Other Exceptions:
- Reproduction for a judicial proceeding.
- Making of copies or adaptations of a computer programme by the lawful possessor for backup purposes or to ensure inter-operability.
- Reading or recitation of a reasonable extract from a published work in public.
2.5 Civil Remedies and Offences
The Act provides for civil remedies for infringement, including injunctions and damages. Infringement of copyright is also an offence under the law, and the Act lays out penalties, including enhanced penalties for second and subsequent convictions, and gives police the power to seize infringing copies.