Copyright In India: An Overview

 

It is important to remember that just buying or owning the original or a copy of a Copyright work does not give you the permission to use it the way you wish. For example, buying a copy of a book, CD, video, computer program etc. does not necessarily give you the right to make copies (even for private use), play or show them in public. Other everyday uses of Copyright material, such as photocopying, scanning, downloading from a CD-ROM or online database, all involve copying the work. So, permission is generally needed. Also, usage beyond the terms of an agreed licence will require further permission.Copyright registration in India gives economic rights to the creators of materials such as literature, art, music, sound recordings and films and broadcasts; thus enabling them to control the use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use online. It also gives moral rights to be identified as the creator of certain kinds of material and to object to its distortion or its mutilation. (Material protected by copyright is termed as "work").

Copyright does not protect ideas, names or titles. The purpose of Copyright law in India is to allow Copyright registrants to gain economic rewards for their efforts and to encourage future creativity and the development of new material which benefits everyone. Copyright material is usually the result of creative skills and/or significant labour and/or investment, and without protection, it would often be very easy for others to exploit material without paying the creator. Most uses of Copyright material therefore require permission from the Copyright owner. However there are certain exceptions where some minor uses may not result in Copyright infringement.

Copyright protection is automatic as soon as there is a record in any form of the material that has been created. There is a provision to register the Copyright under the Indian Copyright Act, although this is voluntary.

Owner of a Copyright

• In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work is the first owner of the economic rights under Copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author.
• In the case of a film, the principal director and the film producer are joint authors and first owners of the economic rights, and similar provisions as referred to above apply where the director is employed.
• In the case of a sound recording, the record producer is the author and first owner of Copyright; in the case of a broadcast, the broadcaster; and in the case of a published edition, the publisher.

Copyright is, however, a form of property which, like physical property, can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the first owner. In contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic works and film directors remain with the author or director or pass to his or her heirs on death. Copyright in material produced by a Government department belongs to the Government of India.

Copyright owners generally have the right to authorise or prohibit any of the following in relation to their works:

• Copying of the work in any way E.g. photocopying/reproducing a printed page by handwriting, typing or scanning into a computer or taping live or recorded music.
• Issuing copies of the work to the public.
• Public delivery of lectures or speeches etc.
• Broadcasting of the work, audio/video or including it in a cable programme.
• Making an adaptation of the work such as by translating a literary or dramatic work, transcribing a musical work or converting a computer program into a different computer language or code.

Copyright is infringed when any of the above acts are done without authorisation, whether directly or indirectly, or whether substantially (in part) or in whole, unless what is done falls within the scope of exceptions to Copyright infringement permitting certain minor uses of material.

There are a number of exceptions to Copyright that allow limited use of Copyright works without the permission of the Copyright owner. For example, limited use of works may be possible for research and private study, criticism or review, reporting current events, judicial proceedings, teaching in schools and other educational establishments and not-for-profit playing of sound recordings.

But if you are copying large amounts of material and/or making multiple copies then you may still need permission. Also where a Copyright exception covers publication of excerpts from a Copyright work, it is generally necessary to include an acknowledgement. Sometimes more than one exception may apply to the use you are thinking of.

Exceptions to Copyright do not generally give you rights to use the Copyright material; they just state that certain activities do not infringe Copyright. So it is possible that an exception could be overridden by a contract you have signed limiting your ability to do things that would otherwise fall within the scope of an exception.

Important Features Of Indian Patents

 

Section 3(d)

This section has been the bone of contention for the pharmaceutical sector as it prevents “evergreening” of drug patents. Under this section, the following inventions are not patentable:

• a mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance;
• the mere discovery of any new property of a known substance;
• the mere discovery of a new use for a known substance;
• the mere use of a known process unless such known process results in a new product or employs at least one new reactant;
• the mere use of a known machine or apparatus.

The explanation to section 3(d) further clarifies that the salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance may be considered to be the same substance. It however states that such salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of such known substance may be considered as patentable only if they differ significantly in properties with regard to efficacy.

In a recent case, in relation to a pharmaceutical substance, the courts held that efficacy means ‘therapeutic efficacy’. For proving increased therapeutic efficacy, strict standard of proof is required. In other words, in order to overcome the hurdle posed by Section 3(d), data based on research and experimental data showing enhanced therapeutic efficacy must be submitted.

Compulsory licenses

This provision strikes a balance between public interest (access to existing drugs at reasonable prices) and private interest (monopoly rights under patents). A compulsory license merely serves to limit the exclusive monopoly rights of a patent holder. In order to prevent abuse of patent rights, the government may authorize the grant of a compulsory license without the permission of the patent holder.

After three years from the date of grant of a patent, an interested party may apply to the Controller for the grant of a compulsory license alleging that:

• the reasonable requirements of the public with respect to the invention have not been satisfied or
• that the invention is not available at a reasonable price or
• that the patented invention has not been worked in the territory of India.

If the Controller is satisfied that a prima facie case for an applicant for compulsory license has been made, he shall serve a notice on the patentees who, if they so desire, may oppose the application for compulsory license.

Patents and Computer Software

It is possible to patent programs for computers which when run on a computer produce a "technical effect or includes hardware". However, if a program does not produce a technical effect when run on a computer, it is unlikely to be patentable. A technical effect is generally an improvement in technology and needs to be in an area of technology that is patentable. For instance, an improved program for translating between Japanese and English is not patentable because linguistics is a mental process, not a technical field. On the other hand, a program which speeds up image enhancement may be patentable because it produces a technical improvement in a technical area.

Some countries, such as the USA, with a large potential market for your software, have a more liberal approach to software patenting and often grant patents for software, which would be excluded in India and other countries. Deciding whether or not a particular computer program is patentable is a complex issue and advice from a Patent Attorney/Agent may help to determine the most effective form of protection available.