Controversies several controversies and amendments in order to

Controversies and issues surrounding 6 decades old Copyright Laws in IndiaShivani SinghAnuvrat SinghIntellectual property laws are no longer an esoteric subject, left to be discussed mostly in the courtrooms. The Indian Copyright Act, 1957 aims at protecting, recognising and encouraging authors, composers and artists to create original work. Copyright protect one’s expression of idea, but only if such an idea is present in a physical form, as copyright subsists only in material form. India is signatory to various conventions engaging in Intellectual Property Laws, therefore time and again the act has undergone several controversies and amendments in order to devise better implementation and remedies to protect Intellectual Property of Copyright holder.The paper deals with some of the controversies that lead to the development of the Copyright Act,1957 as we see it today and some of the Copyright issues that needs to be resolved in order to solve innumerable issues prevailing between copyright owner and their infringers. The act was initially drafted in the regime of print media and in this fast paced modern world full of advance technologies new challenges have been posed to the existing copyright laws. It is time again to revisit 6 decades old legislation to adjust the legal system to respond to the new changes and challenges.IntroductionIntellectual property is defined as the product of one’s intellect i.e. creation of mind of the creator which has artistic character and commercial value.Intellectual property rights includes the right which one possess or control the use of intellectual property such as trademark, copyright, patent, and trade secrets. Since it is the result of creativity of owner by his skill and judgement so also be known as intangible property. It has intangible asset, the reason behind is that the creation of a product ones human knowledge and idea are given shape. In simple words we can say that Intellectual property is refers as the creation of the human mind, idea as that are intangible when first created but becomes valuable in tangible form as final product.Right associated with Intellectual property which gives legal protection is referred as Intellectual property rights. When we speak of intellectual property rights we refers to controlling the way IP is used, accessed or distributed. That right vested with the inventor to grant other to reproduce, distribute, license, sell and exploit the IP in any legal fashion. The law confers an interest that is akin to a monopoly, with the sole purpose of stimulating innovation and creativity.The concept of IP is not new since their legal principle have been evolved over centuries. The Venetian Law of 1474 is considered the first systematic IP Law and thereon there are many laws related to IP have placed till late 19th century commonly as term used as IP. Like the invention of Zero in the 2nd century which was by Pingala and J Gutenberg of Germany who invented Printing press in year 1440. Generally IP protection given by the countries is for two main purpose: To give statutory recognition to the economic and moral rights of the creator. Promote creativity, encourage fair trade which shall constitute to economic and social development.In further context, IP is divided into two major areas: Industrial rightsCopyright Industrial rights includes your trademarks, service marks, commercial names and designs, industrial design, etc. Whereas copyright is further divided into categories .i.e. the protection in literary, dramatic, artistic and musical work. Also holds neighbouring rights known as secondary rights including broadcasting, rebroadcasting, performer rights, etc.Under the agreement of TRIPS ( Trade-Related Aspects of Intellectual Property Rights ) was one of the agreement under WIPO ( World Intellectual Property Organisation ) into seven parts:Copyright and related rightsTrademarkGeographical indicationIndustrial designPatent Layout of integrated circuitProtection against disclosure of Trade Secret.The matter of Copyright subsistence is explained under Section 13 of Copyright Act is that the work shall be –Original literary, dramatic, musical, and artistic work.Cinematography filmsSound recording The Copyright vested with the author of the original work which is produced bu one’s intellect and gives it can expression with skill, labour and judgement. When creator of certain work make the expression of his idea using his intellect and his skill, labour and judgement then that work being  a literary, dramatic, musical and  artistic work shall be protected under the Copyright Act. The Idea is not protected under this act. Expression of idea in a form is being protected.Right to Privacy is referred to the concept of the ones personal information to protect for public scrutiny. ” the right to be left alone” said by U.S. Justice Louis Brandeis. It can also be said as the right to personal autonomy ot his decision or willing to engage in certain act  to have certain experience.Under Article 21 of Constitution of India Supreme court include Right to Privacy is a Fundamental right. Article 21 talks about the protection of life and personal liberty. According to Bhagwati J. Article 21 “embodies a constitutional value of supreme importance in the domestic society.” Iyer J has characterised Article 21 as ” the procedural magna carta” protection of life and liberty.Magna carta is said to be a document constitute a Fundamental guarantee of right and privileges.In case of Nine Judges bench of Supreme Court on 24th August 2017 delivered verdict in Justice K.S. Puttaswamy V Union of India making right to privacy, a fundamental right.Intellectual Property RightsA creator of IP deserves compensation and recognition for his work and investment that results in an output that has value, this something can be tangible or intangible output.Example: Bushel of wheat is a tangible output whereas a song is an intangible output.Intellectual property rights are rooted in the legal concepts of rights and property. Intellectual property laws as human rights and utilitarian mechanism these two traditionas give the following rationale for Copyright protection.Personality: Copyright is a kind of abright of personality as the work of an author bears his personal imprint.Natural Law: The notions of natural justice is reflected through Copyright. ” Author’s rights are not created by law but have always existed in the legal consciousness of man.”Economic arguments: Copyright protects and promotes economic efficiency.Social and cultural goods: Copyright aims at creating an incentive and disseminating of work thsy serves a valuable social or cultural purpose.The protection of Intellectual Property serves a social purpose of of providing protection for the results of investment that has lead to the development of new technologies.The two main reasons for which a country protects Intellectual are:To give statutory expression to the moral and economic rihjts of creators and the rights of the public having access to those creations.To encourage fair dealing which would contribute to economic and social development.Intellectual property laws safeguard Intellectual Property goods and services and its creator by granting them certain time limited rights. It also facilitate transfer of technology or Intellectual Property through form of foreign direct investment, licensing, joint ventures, etc.The protection of Intellectual Property is envisaged at the national, regional and international levels. Although Intellectual Properties are country- specific or territorial in character, bilateral and multilateral agreements are now in place to standardise and harmonize the laws relating to intellectual property anf make it easier to protect Intellectual Property across borders. The Preamble of Trade- Related Aspects of Intellectual Property Rights states: the member states , in adopting the treaty were taking into account the need to protection of Intellectual Property Rights, flowing from their desire to reduce distortions and impediments to International trade, and to ensure that measures and procedures to enfore Intellectual Property Rights fo not themselves become barriers to legitimate trade.The rights in Intellectual Property are in rem, proprietary rights of a negative character that include both the primary and sanctioning rights.Beside traditional categories such as Copyright, trademarks, geographical indications, certain areas of knowledge of people are now claiming Intellectual Property Rights protection, notably the traditional knowledge of people. Development of Copyright regime in IndiaBlack’s Law Dictionary defines copyright as ‘the right of literary property as recognized and sanctioned by positive law. An intangible, incorporeal right granted by statute to the author or originator of certain literary and artistic productions, whereby he is invested, for a limited period, with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them’. Oxford dictionary defines copyright as ‘the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic or musical material’.Indian copyright Act, 1847 and The Imperial Copyright Act, 1911The Indian Copyright Act, 1847 marks the earliest legislation in India relating tp Copyright. The act was enacted during the East India Company regime anr therefore the Indian Copyright law has grown out of English common law and statutory laws. The act was in operation till 1911, then cane the Imperial Copyright Act, 1911.The Imperial Copyright Act, 1911 extended throughout British donion and was brought into force in British India with effect from 31st October 1912.The Copyright Act, 1914The act consisted of 15 sections and protection was provided only to original work. The registration of the author’s work was not necessary as soon as the work was created the author’s right came into existence. Protection was provided to the expression of an idea and not to the idea. The protection was limited to 25 year’s after the death of the author. The act did not considered infringement of copyright as a criminal offence but at the same time authorised the owner of the copyright to destroy the infringing copies. Also, certain penalties were prescribed for infringement of a copyright protected Property.The Copyright Act, 1957The Copyright Act of 1956, replaced thr Copyright Act, 1914 and wasnin Harmony with the Berne Convention, 1886 and the Universal Copyright Convention, 1952. The act contained of 79 sections.A Copyright office was established under the control of a registrar of Copyright and certain powers like entertaining and disposing of applications for compulsory licenses and inquiring into complaints was given to the registrar. A register of Copyright was to be maintained containing the names and addresses of authors, etc.A copyright board was also setup for the first time under the act. The act further expanded the definition and included the exclusive right to communicate work through radio.The Copyright protection term was extended from 23 to 50 years and was further extended to 60 years. The cinematographic film was given a separate Copyright.Provisions related to licensing of Copyright, compulsory licensing, right to broadcasting international copyright, special rights of authors, civil and criminal remedies against infringement were also introduced.The Copyright Act,1957 was further amended in 1983,1984,1994, and 1999 to keep pace with the fast technological developments in the area of Copyright and also to abide by international conventions.Genral Principles governing the Copyright Act,1957Statutory Rights: The Copyright Act,1957 is governed by a statute. As per Section 16 of the Act: no person shall be entitled to copyright or any similar rihhts in any literary, dramatic, musical, artistic work whether published or unpublished, othetwise than under and in accordance with the provisions of this statute.Formalities for obtaining Copyright: No formalities is required for acquiring Copyright, it comes into force as soon as a work is created. The registration is not mandatory but is optional. Registration only provides a prima facie evidence.Balancing act under Copyright system: A critical issue surrounding Copyright Act is how to balance the tug of war between the Copyright holder’s desire to restrict access of the copyright protected work to only those who are willing to pay and thr public interest in freely using such protected work. There are certain provisions such as fair dealing and non voluntary licensing which intend to  balance the issue.Subject matter of Copyright: Section 13 of the Copyright Act, 1957 provides the list of work, in which copyright subsists, this list contains (a) Original literary dramatic, musical and artistic works, (b) Cinematograph films and (c) Sound recordings.Copyright vests on original work: Copyright protects one’s expression of idea, but only if such an idea is present in a physical form as copyright subsists only in material form. In the case of Ravenscroft vs Herbert it was held that copyright protects the skill and labour employed by the author in the production of his work. Therefore in order to get a work protected under the copyright law, one must use sufficient judgement, skill and labour or capital to it.Copyright and independent creation: Copyright intend to prevent a person from copying the Copyright work. In case a person create the same or similar work independently, there is no Copyright infringement. In the case of R.G. Anand vs. Deluxe Films it was said that it is the unfair misappropriation of the labour of another that constitute infringement.Copyright is a bundle of rights: section 14 of the same act talks about the various exclusive rights given to the owner in respect to his copyright work, perform the work in public, make any translations and adaptation, and also assign or license each of these rights for a limited term. Such rights are (a) Economic rights, (b) reproduction rights, (c ) adaptation rights, (d) public performance rights, (e) broadcasting rights, (f) cable casting rights, (g) rental rights, (h) moral rights, (i) neighbouring and related rights.Negative Rights: The Copyright protected work cannot be used without the authority of the owner. It prohibits others from exploiting any such work for their benefit without the consent or license of the author.A right with limitations: The rights provided under this act is not absolute, it is subjected to certain restrictions. Copyright does not continue for an indefinite time. The ownership is provided for a certain period of time. If a work falls in public domain anyone can use it without any prior permission from the author or his heirs. The act also talks of fair dealing doctrine.Civil and Criminal remedies: The Copyright Act, 1957 also provides certain remedies against copyright infringement in Chapter XII. The act provides three kinds of remedies namely (a) Civil Remedie:Section 54 of the Copyright Act, 1957 provides that only an owner of copyright including an exclusive license can file for civil remedies against any damage caused to him. (b) Criminal Remedies refers to the seize of infringing copies and imprisonment of the infringer. One can get Anton Piller order for search of defendant’s premises for infringed copies. Here, Mens Reas in the form of knowledge of accused is one essential element. Also, copyright infringement is a cognizable offence and under Section 63 of the Copyright Act, 1957 is a non- bailable offence. The infringer is liable for: (i) Imprisonment ranging 6 months to 3 years or (ii) Fine of Rs 50,000/- to Rs 2Lakhs. Further the court has discretion to impose a sentence for a period less than 6 months or fine less than Rs 50,000/- in cases where the infringement has not been done with the intention of gain. Section 63 to 63B of the Copyright Act 1957, lays down provision for offence, penalties and procedures that are to be followed. Copyright and Right to PrivacyA nine-judge bench of the Supreme Court has ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under the scope of Article 21 of the Indian constitution. Similarly protection of once hardwork, labour, is equally entitled to be protected in a similar manner under Copyright Act. Copyright law, deals mainly with offences of the nature of unauthorised publicity/publication putatively inscribes certain spaces and activities as either public or private. Over the past several decades there has been an increasing awareness globally – and within India – of the importance of ‘knowledge societies’ which, in contrast to earlier industrial or agrarian societies, leverage ‘information’ as the key raw material and output of  a range of productive activity. As one UNESCO Report puts it “Knowledge is today recognized as the object of huge economic, political and cultural stakes.But over the years law has been limited to the rules enacted in the specific form. The copyright law protects certain amount of rights of an author but not absolutely as it should so as to provide maximum protection. Fair dealing is one such limitation and exception to the exclusive right granted by copyright law to the author of a creative work. It permits reproduction or use of copyrighted work in a manner, which, but for the exception carved out would have amounted to infringement of copyright. Thus where by when moral values are detoriated here comes the question of privacy as to what extent it commutes upon the work of the author. Copyright Act inscribes certain spaces and actions as either public or private. Specified activities are labelled public even though they are conducted within the domestic confines of one’s home. Similarly, activities that infringe copyright are nevertheless immunised from prosecution due to the fact that they are conducted for a ‘private’ purpose. In this concluding section of this paper, we try to piece together a narrative of privacy and the private domain that emerges from a combined reading of various sections and decision under copyright Act.Copyright issues that needs to be resolved in order to solve innumerable issues prevailing between copyright owner and their infringers. The act was initially drafted in the regime of print media and in this fast paced modern world full of advance technologies new challenges have been posed to the existing copyright laws. It is time again to revisit 6 decades old legislation to adjust the legal system to respond to the new changes and challenges. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. The Information Technology Act, 2000 requires a new outlook and orientation, which can be effectively used to meet the challenges posed by the Intellectual Property Rights regime in this age of information technology. Till the country has such a sound and strong legal base for the protection of Intellectual Property Rights, the judiciary should play an active role in the protection of these rights, including the copyright. The situation is, however, not as alarming as it is perceived and the existing legal system can effectively take care of any problems associated with copyright infringement.