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Copyrights in a Nutshell

Copyright is an exclusive legal right provided to the creator of an original work, such as, artworks, music, novels and poetry. Its origin can be traced back to the year 1662 when The Licensing of the Press Act was enacted by the Parliament of England, which was aimed at regulating the copying of books. Since then, it has gained the recognition as one of the Human Rights under the Universal Declaration of Human Rights (UDHR)[i].

The scope of copyright generally includes, but is not restricted to literary works, plays, motion pictures, choreography, musical compositions, painting, sculptors, photography, softwares etc. However, copyright law does not extend to protect inventions, and thus, does not protect an idea, but just the manner in which the idea has been presented i.e. expression of an idea [ii]

Copyright is a bundle of rights, given to the creator, who as a general rule is the first owner of the work. It is important to be noted that copyright is independent of ownership and thus does not transfer with the transfer of ownership. For example, the copyright of a painting will always belong to the painter, irrespective of the fact whether he still owns it or has sold it to someone else[iii].

It is important for the general public to have access to creative works, which enables the society to appreciate the work, experience and learn from it. However, at the same time, it is also essential to not let the access, prejudice the interest of the creator. Therefore, there are two key tools to balance this:

  1. Limited nature of copyright: Copyright is restricted in time and scope. Generally, copyright lasts for the lifetime of the creator and an additional 50 – 70 years from the death of the creator; after which it passes on to the public domain. However, this term is generally not applicable to photography and cinematography, in which case it approximately 25 years and 50 years respectively, from the date on which it was created or showcased. Further, if the author of a work is unknown, the Berne Convention provides for a protection for 50 years, unless the author becomes known at a later stage[iv]. Moreover, as already stated, the scope of copyright extends only to the expression of ideas and not the ideas in total.
  2. Exceptions to copyright: The Berne Convention has set out guidelines for governments to legislate for exceptions to copyrights. The exceptions legislated in nations laws are required to be consistent with the standards of protection of the Berne Convention. The exceptions to copyright can be justified if they undergo this three-step test: a) application on in special cases; b) use must be not be substantial which might prejudice the interests of the creator; c) should not interfere with the economic interests of the creator.[v]

The procedure for obtaining a copyright varies by jurisdiction. In the 169 countries where Berne Convention applies, copyright is obtained automatically, as soon as the idea is expressed in a tangible form, and there is no requirement of official registration. However, certain countries provide for voluntary registrations, which can be used a prima facie evidence in courts. United States still provides for certain legal benefits for creators and authors who register their copyrights, such as, an infringement suit can be only be brought after registration; and copyrights, which are not registered cannot claim statutory damages or attorney fees[vi].

Copyright or aspects of it may be transferred, licensed or assigned from one party to another. Certain jurisdictions also provide for compulsory licensing, under which a party can use the copyrighted work, without seeking the consent of the copyright holder, by paying a prescribed fees to the government authority (subject to certain conditions, of course). This is especially common for musical compositions, which are used for radio broadcast or other live performances. Compulsory licenses provide four major freedoms i.e. to run, study, redistribute and improve the programme, with the ultimate objective of benefiting the community at large[vii].

It is very essential to have a sustainable copyright framework, which will ensure increased creativity and cultural development and at the same time provide for economic development of the creator.

[i] Article 27 (b), Universal Declaration of Human Rights

[ii] Understanding Copyright and Related Rights, World Intellectual Property Organisation, http://www.wipo.int/edocs/pubdocs/en/intproperty/909/wipo_pub_909.pdf (last accessed on 29 Feb, 2015).

[iii] Caroline Morgan, Introduction to Copyright, Asia-Pacific Cultural Centre for UNESCO, http://www.accu.or.jp/appreb/10copyr/pdf_ws0810/c2_02.pdf (last accessed on 29 Feb 2016).

[iv] Article 7, Berne Convention for the Protection of Literary and Artistic Works,

[v] Id.

[vi] Subject Matter and Scope of Copyright, United States Copyright Office, http://copyright.gov/title17/92chap1.pdf (last accessed on 01 March 2016).

[vii] Free Software’s Four Freedom, https://fsfe.org/freesoftware/basics/4freedoms.en.html (last accessed on 01 March 2016).

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