Classes of Copyrights

In India, following classes of Copyrights exist:

1. Literature: Books, Essays, Research articles, Oral speeches, Lectures,
Compilations, Computer programme, Software, Databases.
2. Dramatics: Screenplays, Dramas.
3. Sound Recordings: Recording of sounds regardless of the medium on which
such recording is made e.g. a Phonogram and a CD-ROM.
4. Artistic: Drawing, Painting, Logo, Map, Chart, Photographs, Work of
Architecture, Engravings, and Craftsmanship.

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Classes of Copyrights
5. Musical: Musical notations, excluding any words or any action intended to be sung,
spoken or performed with the music. Musical work need not be written down to enjoy
Copyright protection.
6. Cinematograph Films: Cinematograph Film‘ is a visual recording performed by any
medium, formed through a process and includes a sound recording. For example,
Motion Pictures, TV Programmes, Visual Recording, Sound Recording, etc.

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Criteria for Copyright
To qualify for Copyright protection, a work must exist in some physical (or
tangible) form. The duration of the existence of the physical form may vary
from a very short period to many years. Virtually any form of expression which
can be viewed or listened to is eligible to qualify as Copyright.
Even hurriedly scribbled notes for an impromptu speech are considered
copyrightable material. The Copyright work has to be expressed by the creator
in his frame of thought. In other words, the work has to be original i.e. the
author created it from independent thinking void of duplication.
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Criteria for Copyright
This type of work is termed as an Original Work of Authorship (OWA). It may
appear similar to already existing works but should not be the same. The
original work may lack quality or quantity or aesthetic merit or all these
parameters; still, it will pass the test of copyrightable work.

In addition to originality for the work, Copyright protection also requires at

least some creative effort on the part of the author. There is no minimum limit
for the extent of creativeness. It is a subjective matter.

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The minimal level of creativity needed for Copyright protection depends on
the judgment of the evaluator (adjudicated by the Office of Registrar of
Copyright). As an example, mere changing the dimensions of a book will not
be granted Copyright protection.
Similarly, an address book of alphabetically arranged telephone numbers
does not qualify for Copyright protection as it involves a straightforward
alphabetical listing of phone numbers rather than a creative selection of
listings.

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Ownership of Copyright
The Copyright laws clearly state the ownership of Copyright.
• The person who created the work is considered as the first (original) holder
(owner) of the Copyright.
• In case the author is an employee and has been contracted to do the work by
a proprietor (of the company/firm/society/organization, etc.), the owner of
the Copyright shall be the proprietor.
• The government will be the primary owner of the government work in the
absence of any kind of arrangement.
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Ownership of Copyright
The Copyright laws clearly state the ownership of Copyright.
• The person delivering a speech is the first owner of the Copyright.
• To obtain permission to use copyrighted material, a request for the same
should be made to the legal owner (of the copyrighted material), which
could be the original author, the legal heir (in case of the death of the
author), publisher, etc. The request must mention the following:
• Title, author and/or editor, and edition.
• Precise material to be used.
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Ownership of Copyright
• The number of copies.
• The purpose of the material e.g. educational, research, etc.
• Form of distribution e.g. hard copy to classroom, posted on the internet.
• Whether the material is to be sold e.g. as part of a course pack.

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Copyrights of the Author
The Copyrights of the creator/author are legally protected under Section 14 of
the Copyright Act, 1957. The content (i.e. work) created by the author cannot
be used or published by anyone without the author‘s consent. Copyrights
provide exclusive rights to the author in the areas of publication, distribution,
and usage. A Copyright owner enjoys two types of rights i.e. Economic Rights
(or Proprietary Rights) and Moral Rights (or Personal Rights). Economic
Rights are associated with financial benefits accruing from the sale of
copyrights.
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Copyrights of the Author
As per the Act, Copyright owners can authorize or prohibit:
1.Reproduction of the work in any form, including printed publications or
sound recordings.
2.Distribution of copies of the work.
3.Public performance of the work.
4.Broadcasting/communicating the work to the public.
5.Translating the work into other languages.
6.Adaptation of the work, such as converting a novel into a screenplay.
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Copyrights of the Author
Moral Rights include Right of Paternity‘ and Right of Integrity
The Right of Paternity‘ even if the Copyright has been licensed to another party, the
original author of the work retains the right to claim authorship i.e. the name of the
author/s will remain even though Copyrights have been transferred to another party
e.g. a book publisher.
The Right of Integrity‘-the original author has the right to prevent misuse of the work
e.g. alterations/additions/ deletions in work resulting in misrepresentation of the said
work or harming the honor and reputation of the author.

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• It is pertinent to mention that for a work, there can be more than one
rights holders, for instance, a musical sound recording has many rights
holders, such as the lyricist, music composer, singer, musicians and sound
recorders.

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Copyright Infringements
As per the Copyrights Acts, 1957, the following acts are regarded as an infringement of
Copyrights:
1. Making copies for sale or hire or selling or letting them for hire without permission.
2. Permitting any place for the performance of owned work (in public) where such
performance constitutes an infringement of Copyright.
3. Distributing infringing copies for trade or to such an extent to affect the interest of
the owner of the Copyright prejudicially.
4. Public exhibition of infringing copies for trade purposes.
5. Importation of infringing copies.
6. Translating a work without the permission of the owner.

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Fair Use Doctrine
Any person not possessing a valid license from the owner of the Copyright is
not entitled to exploit the said work. However, Section 52 of the Copyright Act,
1957, provides for certain exceptions to the infringement of Copyright. As per
the rule of law, Copyrighted materials cannot be used by anybody without the
proper consent of the legal owners (of the Copyright).

However, limited use of Copyrighted materials for teaching and research

purposes is legally permitted, under The Fair Use Doctrine‘, which comprises
of the four-part test:

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1. The character of the use - use of the work is purely educational, non-
profit and personal.
2. Nature of the work - The use of work is factual in nature and not
imaginative.
3. Amount of the portion to be used - permission is not needed if only a
small portion of Copyright protected material is to be used. However, this
parameter is debatable now.
4. Impact of use on the value of the Copyrighted material - If a small portion
of the work is copied and is not affecting the author‘s economic and moral
rights, it will be excused from the infringement.

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Non-Copyright Work
The works not under the jurisdiction of Copyrights are as follows:
• The ideas, concepts, and principles themselves cannot be protected under
Copyright, only the form in which they are expressed can be copyrighted.

• Facts, such as scientific or historical discoveries, are not copyright protected.

Any fact a person discovers in the course of research cannot be Copyright
protected. For example, an author of a book on ‗Buddhism‘ takes ten-fifteen
years to gather all the necessary materials and information for his work. At a
great expense, the author travels to various museums, libraries and
excavations sites.

However, after the book is published, anyone is free to use the underlying
facts, provided they express the information on their own.
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Eligibility Criteria
For goods/services to be legally classified as Trademark, they need to pass the
following conditions:
1. Distinctiveness - The goods and services for which the protection is sought should
possess enough uniqueness to identify it as a Trademark. It must be capable of
identifying the source of goods or services in the target market.
2. Descriptiveness - The Trademark should not be describing the description of the
concerned goods or services. Descriptive marks are unlikely to be protected under
Trademark law. However, descriptive words may be registered if they acquire
―secondary meaning‖, such as the brand name ‗Apple‘ is used by a USA based
multinational company that manufactures electronic gadgets.
3. Similarity to the prior marks - The mark should be unique and should not be having
similarity to the existing marks.

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Registration of a Trademark is Not Compulsory
Although, registration of a Trademark is not compulsory, registration provides certain
advantages to the proprietor of the Trademark, such as:
1. Legal Protection – prevents the exploitation of the Registering Trademark by other
companies/organizations/individuals, without proper authorization by the legal
owner/s of the Trademark. In case of legal suits, a registered Trademark can serve
as a potent evidence of the lawful proprietorship of the Trademark.

2. Exclusive Right - grants the Trademark owner full rights to use it in any lawful
manner to promote his business.

3. Brand Recognition - products/ services are identified by their logo, which helps
create brand value over time. A strong brand is a huge pull for new customers and an
anchor for existing customers. Registering a Trademark early and using it will create
goodwill and generate more business for the brand owner.
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4. Asset Creation - registered Trademark is an intangible property of the organization.
It can be used for enhancing the business of the company as well as drawing new
clients and retaining old one by the account of brand identification.
To find out more about Registered Trademarks in India, one may look at
http://www.ipindia.nic.in/writereaddata/Portal/ Images/ pdf/well-known-
trademarks-updated-newone.pdf.
It is pertinent to mention that no legal course of action can be taken against the
unlawful use of an unregistered Trademark. For unregistered marks (sometimes
known as ‗Common Law Trademarks‘, which are defined as the law rights which
generally do not require formal registration for enforcement) action can be brought
against any person for the passing off goods or services as the goods or services
provided by another person. In such cases, the unregistered Trademarks have to
prove the establishment of goodwill or reputation connected with the goods or
service.

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Types of Trademark Registered in India
Trademark can be a word that must be able to speak, spell and remember. It is
highly recommended that one should choose the Trademark like invented word,
created words, and unique geographical name.
One should refrain from Trademarks like common geographical name, common
personal name and the praising words which describe the quality of goods, such as
best, perfect, super, etc. To ensure all these characteristics in a Trademark, it is
suggested to conduct a market survey to ensure if a similar mark is used in the
market. Following are some examples of the registerable Trademarks:

1. Any name including personal or surname of the applicant or predecessor in

business or the signature of the person e.g. the Trademark ‗BAJAJ‘ is named after
industrialist Mr. Jamnalal Bajaj.

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2. A word having no relevance to the product/services e.g. Trademark
‗INDIA GATE‘ is being used for food grains and allied products.

3. Letters or numerals or any combination thereof e.g. ‗YAHOO‘ is the

abbreviation of the phrase ‗Yet Another Hierarchical Officious Oracle‘. It
has now become a worldwide famous Trademark.

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