‘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/

Assigning Trademarks Not in Connection with the Goodwill of a Business

Section 42 of the Trademarks Act (India) applies to the assignment of a trade mark, whether registered or unregistered, not made in connection with the goodwill of the business in which the mark has been or is used.

The assignment shall not take effect unless the assignee applies to the Registrar for directions with respect to the advertisement of the assignment, and advertises it in such form and manner and within such period as the Registrar may direct.

The Act says that the timeframe within which this is to be done is: ‘not later than the expiration of six months from the date on which the assignment is made or within such extended period, if any, not exceeding three months in the aggregate, as the Registrar may allow.’

Explanation:

This Section does not apply to:

(a) an assignment of a trade mark in respect only of some of the goods or services for which the trade mark is registered accompanied by the transfer of the goodwill of the business concerned in those goods or services only; or

(b) an assignment of a trade mark which is used in relation to goods exported from India or in relation to services for use outside India if the assignment is accompanied by the transfer of the goodwill of the export business only.

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

GI for the Assamese Gamosa

Spicy IP reports that ‘The Indian Chamber of Commerce is set to file applications seeking Geographical Indication Registration for the distinctive Assamese gamosa.’

Not a particularly important piece of news but it brought a smile to my face. The Gamosa is an integral part of Assamese culture. Literally, it means a towel (to wipe the body with) but it has acquired a far more important place in the Assamese psyche than would be accorded to a mere towel. (I’m trying to avoid using phrases like ‘the hearts of the Assamese people’ here.)

In addition to its obvious uses, as Wikipedia points out, “it is hung around the neck at the prayer hall and was thrown over the shoulder in the past to signify social status. Guests are welcomed with the offering of a gamosa and tamul (betel nut) and elders are offered gamosas (bihuwaan) during Bihu. It is used to cover the altar at the prayer hall or cover the scriptures. An object of reverence is never placed on the bare ground, but always on a gamosa. One can therefore, very well say, that the gamosa symbolizes the life and culture of Assam.”

Photo: Deepraj

IP Concepts in One Sentence Each

Quoting from Philip Brooks’ Patent Infringement Updates:

• The [patent] exhaustion doctrine is founded on the precept that the authorized transfer of the “essential features” of a patented invention results in exhaustion of system or method claims directed to the invention.
• The contributory infringement statute is based on the precept that a recovery may be obtained for an unpatented component embodying the essential features of a patented system or method.

Source: http://www.infringementupdates.com/2008/03/justice-breyers.html

Imaginary IP

I came across an article published by ‘The Telegraph’ through Spicy IP on Geographical Indicator Patents which says:

“Pakistan opposes Jammu and Kashmir’s efforts to get a geographical indicator patent (GIP) on its centuries-old Sozni shawls, saying this embroidery craft is in vogue in its part of Kashmir, too. The neighbouring country’s traders want Sozni shawls made in Pakistan-occupied Kashmir included under the patent Kashmiri Sozni.”

I subscribe to several IP blogs and don’t often read any of them very carefully so when I first saw this post, the only words I initially saw were: ‘geographical indicator patent‘ and my blood ran cold wondering how I could have completely missed out on even knowing about the existence of some form of patent which was important enough to make the news.

Much to my relief, I then realised that the blog was merely reporting (an)other media mistake. Relieved though I am, I can’t imagine how a mistake like this could have crept into the story at all especially since geographical indicator disputes are, well, hardly a novelty anymore.
The Telegraph, however, is not alone in getting it wrong.

The Voice of America reports:

“Indian efforts to get a Geographical Indicator Patent registered for Kashmir Pashmina have hit a snag with opposition from neighboring Pakistan.” They go on to say that the GI patent registry is based in the south Indian city of Chennai. [2]

while The Tribune says:

“When the Srinagar-based Craft Development Institute applied for a Geographical Indicator Patent (GIP) with the Chennai-based GIP registry, Pakistan raised its objection under the Trade Related Intellectual Property Rights (TRIPS), of the WTO regime.” [3]

Links:
[1] http://www.telegraphindia.com/1080222/jsp/nation/story_8934635.jsp
[2] http://www.voanews.com/english/2008-02-11-voa9.cfm
[3] http://www.tribuneindia.com/2008/20080214/j&k.htm

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

Protection to Foreign Trademarks

This isn't really Indian Law, but...

In the case of ITC Ltd. v. Punchgini, Inc, it was claimed that the trademark of Bukhara restaurant in New Delhi was being infringed by a restaurant name Bukhara Grill which had been opened in New York. [1] Sheppard Mullin says, “The New York State Court of Appeals concluded that while the “famous marks doctrine” itself is not recognized by New York law, New York law does provide protection to the owner of a famous mark by virtue of the owner’s prior use of the mark in a foreign country under a theory of unfair competition through misappropriation.” [2]
However, Thomas Zuber points out that ‘according to the Second Circuit’s recent ruling in ITC Ltd. v. Punchgini, Inc., No. 05-0933-cv, 2007 WL 914742 (2d Cir. March 28, 2007), there is no federal “famous marks” exception to the basic territoriality rule that the United States does not enforce trademark rights that exist only under foreign law’.(The Ninth Circuit’s decision in Grupo Gigante S.A. de C.V. v. Dallo & Co., Inc., 391 F.3d 1088 (9th Cir. 2004) had earlier recognized the famous foreign trademark exception to territoriality).

Links:
[1] www.nycourts.gov/courts/appeals/decisions/dec07/165opn07.pdf
[2] www.intellectualpropertylawblog.com/archives/trademarks-and-trade-dress-court-finds-famous-foreign-trademarks-protectible.html
[3]www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTA5MzMtY3Zfb3BuLnBkZg==/05-0933-cv_opn.pdf www.aipla.org/Content/ContentGroups/Issues_and_Advocacy/Amicus_Briefs1/20079/ITCbrief_Final_Revised2.pdf
[4] www.lawupdates.com/commentary/itc_ltd_v_punchgini_inc
[5] www.law.cornell.edu/nyctap/I07_0164.htm

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

The Bubble Bursts

Business Standard has reported that Candico which has been using the ‘Big Bubble’ trademark since 1989 has seen its demand for the cancellation of the Italian company Perfetti’s trademark ‘Big Babol’ which it has been using in India since 1981 dismissed by the IPAB. The Board said that it was of the view that it was for the applicant, Candico, to prove that if the mark was allowed to continue on the register it would affect their right.
I’m not sure why Candico wasn’t able to prove that the two marks, ‘Big Bubble’ and ‘Big Babol’ are not confusing.

Link: businessstandard.com/common/storypage_c.php?leftnm=10&autono=310273

India: ISA and IPEA

India has now become the only English-speaking country in the Asian region which has been recognized as an International Searching Authority and an International Preliminary Examining Authority under the Patent Cooperation Treaty with its status as such having been endorsed by the World Intellectual Property Organization at the General Assemblies of WIPO.

pib.nic.in/release/release.asp?relid=34120