‘How To’ Copyright a Work

Since several people seem to reach this blog looking for instructions on ‘How to copyright‘ various works:

1. Copyright does not subsist in ideas, it subsists only in the expression of an idea in the form of a literary work, music, art, etc..

2. The moment a work is created, copyright subsists in it. In most cases, the author / creator of the work owns the copyright.

3. This copyright which has already come into creation can be registered. Registration is not essential. It results in the the names or titles of works and the names and addresses of authors, publishers and owners of copyright and such other particulars as are prescribed by the law being entered in the Register of Copyrights. Entries in this Register are presumed to be true by courts although the presumption is rebuttable. Such entries do not create copyrights, they merely register copyrights (which have already automatically come into existence on the creation of a work). [1]

4. Since copyright automatically comes into existence, the question is not HOW TO copyright a work but HOW NOT TO copyright it. [2]

Links:
[1] Copyright in India: copyright.gov.in/
[2] Creative Commons: creativecommons.org/

Communication to the Public

Note: CS (OS) 1096/2007 is listed in the Delhi High Court website as SUPER CASSETTES INDUSTRIES LTD. Vs. MR. SAMEER KUKHREJA & ANR.. This is not the same name which is mentioned in this article : the judgments section of the Delhi High Court site seems to be down at the moment. (Addendum: Issue resolved.)
***
The case of Super Cassette Industries v. Nirulas Cornerhouse (P) Ltd. in the Delhi High Court deals with infringing the copyright of works which are broadcast via cable (without their copyright being infringed) by subsequently communicating them to the public.
The plaintiff, Super Cassette, is the copyright holder of a number of works many of which it licenses. The defendant, Nirulas, runs restaurants.

The defendant transmitted the plaintiff’s works (which it had received via cable) to its guests without a licence from the plaintiff which caused the plaintiff to allege that its copyright in the works had been infringed. The plaintiff successfully sought an interim injunction against the defendant.

The plaintiff relied on the explanation to Section 2 (ff) of Copyright Act which says that making a work available by simultaneous means of communication in hotels rooms amounts to ‘communication to the public’ and Sections 14, and 51 of the Copyright Act which define copyright and speak of the infringement of copyright.

With reference to Performing Right Society v. Hammonds Bradford Brewery Co. Ltd.,[ (1934) Ch. 121] the plaintiff contended that the provision of a cable channel to guests was analogous to making acoustic presentations to hotel guests through the wireless and that it amounted to ‘communication to the public’.

The plaintiff also cited Garware Plastics and Polyester Ltd. v. Telelink [AIR 1989 Bom 331] where it had been held that the broadcasting of content through cable channels to households etc. amounts to public performance.

The defendant first unsuccessfully tried to have the plaint rejected under Order 8 Rule 11 of the CPC and later tried to avoid distinguishing between the cable operator (legally) transmitting signals to it, and its subsequently transmitting those same signals to its guests.

The High Court of Delhi held that the defendant had infringed the plaintiff’s copyright since Parliament intended ‘to exclude the operation of such categories of [commercial] establishments from the benefit of what are obviously deemed not infringements. Such provisions should receive a restricted interpretation, having regard to the nature of the expressions used. Thus, the Court will not extend the law beyond its meaning to take care of any perceived broader legislative purpose.’

In addition to this, as held in Hubbard v Vosper, [1972 (1) All ER 1072] ‘the court must consider the question of proportions, in the case of a copyright infringement action. Therefore, for instance, the placing of a common television in a motel reception, accessible to all but without keeping a television set, in each hotel room, or placing such a set in a grocery shop for the recreation of the owner, or a wayside restaurant, may not fall within the mischief of the definition of infringement. Proportion in this context, would necessarily imply the nature of the activity of the establishment and the integral connection the infringement complained of has with it’.

Source: Copyright Infringement In Playing Television Channel by Manisha Singh Nair www.mondaq.com/article.asp?articleid=58634 and the Delhi High Court website

Copyright in Court Judgments

Eastern Book Company is the company which publishes SCC, a reporter of Supreme Court judgments. Spectrum Business Support collates judgments from a number of legal reporters and makes them available on CDs (which they call Grand Jurix and sell for about 28000 INR — that’s the price they quoted to me a few months ago).In a case for violation of copyright filed by EBC against Spectrum Business Support Ltd., the Supreme Court ruled (in December 2007) that EBC holds a copyright in its own internal referencing of judgments, headnotes etc. although court judgments themselves are not copyrighted as Section 52(1)(q) of the Copyright Act also makes clear.
Link:
Eastern Book Company and Ors. Vs. D.B. Modak and Anr.: http://judis.nic.in/supremecourt/qrydisp.aspx?filename=30019

Copyright as a Human Right

For some reason, I hadn’t thought of this earlier but a post I just came across at The Patry Copyright Blog made me think of copyrights being accorded the status of human rights. The UDHR and ICESCR treat copyright as a human right to an extent and so, I suppose, if all else fails in some copyright litigation, one could always argue, “My Lord, I further contend that my client has a fundamental, inherent, and inalienable human right as has been recognized by the UDHR and the ICESCR to have his copyright enforced so as not to defeat the ends of justice, equity and good conscience.”

Article 27 of the Universal Declaration of Human Rights says:

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.

(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

And Article 15 of the International Covenant on Economic, Social and Cultural Rights says:

1. The States Parties to the present Covenant recognize the right of everyone:(a) To take part in cultural life;(b) To enjoy the benefits of scientific progress and its applications;(c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization ofthis right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields.

I suppose that that would be alright if it was used to protect the rights of the individual author but I somehow suspect that one would begrudge corporations seeking to protect their profits the banner of human rights. And I definitely don’t know how it’d work if an individual author had assigned some of his rights. The human rights conventions apply to human beings and not to companies but what would happen if a company argued that the human’s right to the protection of the material interests of the author’s work depended on the application of the convention to the work even if the author had assigned some of his rights?

Link: Appeals to Human Rights: The Next Battlefield?: http://williampatry.blogspot.com/2008/01/appeals-to-human-rights-next.html