PATENT DAMAGES PRESENTED BY

R.KUMARAVENKATESAN

ADVOCATE PATENTS DEPARTMENT ALTACIT GLOBAL

PRESENTATION

Indian Copyrights Act 1914 was the earliest legislation on copyrights in India based on the British Copyrights Act of 1911.

Copyrights Act, 1957 is the 1ST elaborate legislation The 1957 act has undergone subsequent amendments in

the years1983, 1984, 1992, 1994 and also in the year 1999.

The 1994 amendments were made with provisions to comply with the latest developments in the field

of computers and digital technologies The 1999 amendments made amendments in the

provisions concerning to Broadcasters and performers.

INTRODUCTION

India is a member of the Berne convention for the protection of literary and artistic works’,1886

• India is also a member of Universal Copyrights Convention, Geneva and Universal Copyrights Convention, Paris,1951

• India is a signatory to the TRIPs agreement.• India also complies with the provisions of the Rome

convention, even though it was not a member to that convention.

• India being a member of WIPO, not yet signed the WIPO Internet treaties of 1996,

• WCT-WIPO Copyrights treaty, 1996• WPPT-WIPO Performers and Phonograms treaty, 1996.

INTERNATIONAL CONVENTIONS AND TREATIES ON COPYRIGHTS

OBJECTIVES BEHIND THE AMENDMENTS

• The amendment bill introduced in the Rajyasabha on April 19, 2010 by the ministry of Human Resources and Development (nearly 38 changes have been proposed)

• To bring the act in conformity with the WCT and WPPT.• To gain clarity• To remove operational difficulties• To address new issues that, have emerged in the era of

digital technology and internet• To effectively protects the copyrights in the digital

environment• India’s respect to WIPO and international law.

PROVISIONS PROPOSED TO BE AMENDED

• The provisions concerning to

• Sound recording and cinematography.• Authors, publishers, performers and broadcasters.• Copyright societies• Digital rights management• Moral right and performers right• Welfare of visually disabled persons• Compulsory licensing and parallel import and• certain miscellaneous provisions.

• Section 22 : Period of Copyright in photographs enhanced. (life time plus sixty years)

• Definition of ‘copyrights’ expanded to include copyright works saved in electronic form.

• Performer’s right redefined. The Bill extends ‘moral’ rights to performers, rather than just authors as is the case now

• Statutory licensing has been introduced in version recording and broadcasting of published works.

• New definitions have been introduced (visual recording, communal rental)

• Amended definitions: (author, cinematographic film, infringing copy, performer, joint authorship)

OTHER NOTABLE AMENDMENTS

• Section 2(d): Principal Director in a cinematographic work and Producer of a sound recording are proposed to be made authors within the modified definition of "author ".

• Section 2(z): The principal director and producer are to be joint authors in a cinematographic work.

• New section 2(xxa): A new definition of Visual Recording • The exclusive rights of an author in Section 14(d): a

cinematographic work and • Section 14(e):sound recording and Section 14(c): an artistic work

were extended to include,• electronic or other means of storage of the work and right to sell

or rent the work.• Section 17 new clause(f)- producer and principal director of a

cinematographic shall be joint owners.• Section 17new clause(g)- principal director will enjoy copyright

protection 10 years more than the producer.

PROVISIONS CONCERNING TO MUSIC AND FILM INDUSTRY

CONTINUED….

• Section 18: the right to receive royalties of a literary or musical work that forms part of a cinematographic work cannot be assigned to any person except to legal heirs or copyright societies

• Section 19: after assignment, the owner of the work to have the right to claim royalties for use of the work outside the cinematographic work or sound recording.

• Lyricists, scriptwriters and music composers, in films and sound recordings have special set of rights over their work.

• Section 26: the term of copyright with respect to cinematographic work shall be seventy (70) years from the date of publication for a principal director.

• New Section31 C: “Statutory License for Cover Versions”- to protect the interest of the copyright holder while making a sound recording of any literary, dramatic or musical work.

PROVISIONS CONCERNING TO MUSIC AND FILM INDUSTRY

• All authors ‘moral’ rights over their work• Section 57 (amended) : moral rights valid even after the

term of copyright expires• Authors have the right to claim damages against any

distortion or modification of their work which adversely affects their reputation (“the right to integrity”).

• Legal representatives of long-deceased authors will have the right to judge whether or not a new work adversely affects that author's reputation.

• The new section 31D : Statutory license for broadcasting a published work

AUTHORS, PUBLISHERS AND BROADCASTING INDUSTRIES

• The Bill has two provisions that help persons with disability get access to copyrighted work

• New section 31B: provides for the grant of a compulsory license over a work to publish it for the benefit of the disabled.

• Section 52)1)(ZB)- 1.it permits adaptation and reproduction of work in a format specially designed for use of persons with disability (e.g. Braille).(including sign language, specially designed only for the use of persons suffering from a visual, aural or other disability)

• 2. the Bill provides for copies produced for the use by persons with disability in non-‘special’ formats (Such work can only be produced by organizations recognized under the Persons With Disabilities Act, 1995.

WELFARE OF THE VISUALLY DISABLED PERSONS

• To make the act in compliance with the WIPO Internet treaties, namely WCT and WPPT.

• Section 2 (xa) Rights Management Information• It has been defined as title or other information identifying the

work or performance.• (by the name, address of the author, terms and conditions

regarding the use of rights, code of the information but does not include any device or procedure intended to identify the user.)

• New section 65A: that relates to anti-circumvention of technical measures adopted to protect copyrighted content.

• New section 65B: deals with protection of rights management information

• ( Circumvention of technological measures include, bypass, escape, evade the security system, breaking pass words, unauthorized entry and retrieval of information from a protected web site)

DIGITAL RIGHTS MANAGEMENT PROVISIONS

• Section 65A (anti-circumvention of technical measures)• any person who circumvents an effective technological measure applied

for the purpose of protecting any of the rights conferred under the copyright Act, with the intention of infringing such rights, will be punishable with imprisonment which may extend to two years and will also be liable to fine.

• Section 65B protection of rights management information• any person, who knowingly removes or alters any rights management

information without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

• Circumvention of technological measures is permitted for the purpose of:• a. conducting encryption research and any lawful investigation ;• c. in testing the security of a computer system or a computer

network( with the permission of its owner or operator)• d. doing anything necessary to circumvent technological measures

intended for identification or surveillance of a user ; and• e. taking measures necessary in the interest of national security.

D . R . MANAGEMENTCONTINUED……

• It shall be ‘associations of authors’ and shall be subject to their collective control, rather than to the control by rights holders.

• Section 33- copyright societies may be registered only by authors.

• The new section 33A-publication of the tariff by the copyright society and its review. In case of dispute, the aggrieved party can appeal to the Copyright Board

• Sections 34 and 35- the copyright society shall be administered by the authors

COPY RIGHT SOCIETIES AND COPYRIGHT BOARDS

• Section 19: Any assignment that is contrary to an assignment made to a copyright society shall be void.

• Section 19A: Copyright Board can now issue interim orders in cases of disputes over assignment of copyright, or disputes over the tariffs announced by copyright societies.

• The Copyright Board may direct the Registrar of Copyrights to grant for prescribed time compulsory license of any copyrighted work for the benefit of the disabled

• The rate of royalty for statutory licensing for cover version of a sound recording shall be fixed by the Copyright Board

COPY RIGHT SOCIETIES AND COPYRIGHT BOARDS CONTINUED……

• section 52(1)(a)- storing of a copy of a work including a computer program in an electronic medium for private use, criticism or reporting is fair dealing and does not amount to infringement.

• section 52(1)(b)- transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright.

• The new clause (n) allows libraries to make a digital copy of a work if the library has a non-digital copy;

INFRINGEMENT- LIBERALLY CONSTRUED

• Section 2(m) amended : Parallel import allowed as an exemption to copyright infringement.

• ‘a copy of a work published in any country outside India with the permission of the author of the work and imported from that country into India shall not be deemed to be an infringing copy’

• The new section 31B: provides for the grant of a compulsory license over a work to publish it for the benefit of the disabled.

• section 31(amended): a compulsory license may be granted to a foreign work also.

• a compulsory license may be granted to more than one person.

COMPULSORY LICENSING, PARALLEL IMPORT

• India has not signed either of these two treaties.• Leeds to an increase in litigation• The broadcasters and music companies will be forced to

pay high royalty to lyricists and performers.• Foreign publishers may dominate over the publishing

industry.• Financial burden to producers, publishers and

broadcasters.• Publishers have to be at the mercy of the authors.• Copyright societies and Copyright board may exercise

great control over the matters concerning to copy rights.

OBJECTIONS RAISED, AGAINST THE COPYRIGHTS AMENDMENT BILL, 2010

• The proposed amendments, may• Relieve the authors, performers and directors from the

clutches of producers and publishers.• Due recognition will be given to the creators, ie

authors, directors and performers.• The reconstituted ‘copyright societies’ can look after the

welfare of authors rather than of the right holders/publishers.

• The penal provisions against the internet based copy right violations may reduce the rate of infringement offences.

MY OPINION

• Beneficial to the researchers, as accessing copyrighted information from net for private/research purpose is exempted from infringement.

• It makes the legislation in conformity with the developments in digital technology.

• With the liberalized provisions on parallel import, the Indian publishing market shall be open to the world and access to foreign publications become easier.

MY OPINIONCONTINUED….

THANK YOU