Tracking the IP Journey into School and College Syllabus (Part-II)

By Harish S. Adwant, III BSL LLB, ILS Law College, Pune

The Department of Industrial Policy and Promotion (DIPP) is working relentlessly in order to introduce “IP teaching” in educational institutions, as recommended by the Draft National IPR Policy.

DIPP is corresponding with National Council for Educational Research and Training (NCERT) and Central Board for Secondary Education (CBSE) to introduce IPR in the syllabus of Class IX students. The correspondences indicate that IPR may be introduced as a topic in social sciences or economics to familiarize students to patents and trademarks.

Simultaneously, DIPP is also planning on deliberating with the Ministry of Human Resource Development (HRD) and All India Council for Technical Education (AICTE) on introducing IPR as a separate subject in engineering colleges.

According to DIPP, this initiative is a part of the wider policy, framed by the body, to make the patent application process time-effective and technologically driven, create public awareness about IPR, and encourage more Indian patent filings. “There was a need for India to push for innovation through the IPR policy, which is in the works”, said Commerce and Industry Minister Nirmala Sitharaman.

The government is expected to announce the National IPR policy in the next three months, which will regulate the current IPR law framework and declare the future road-map. A draft has already been circulated for inter-ministerial comments, after which it will be sent to the cabinet for approval.

The proposals, recommended by the Draft IPR policy, will have to be executed only after scrutinizing and anticipating the hurdles faced by the present education system in India. DIPP must make the necessary arrangements in order to ensure quality education and avoid it from being an additional liability over the students.

 

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Tracking the IP Journey into School and College Syllabus (Part-I)

By Harish S. Adwant, III BSL LLB, ILS Law College, Pune 

In 2008, LiveMint had reported that the Kerala State Government is going to implement an IP Education Policy to include the teaching of IPR in schools and other academic institutions. An official from the State Education Ministry said in the report, “The state will initially start five or six centres of excellence to provide degree-level classes to students in all five universities, and faculty will be provided in the universities and its affiliated institutions over a period of time”.

Furthermore, the then Kerala law minister M. Vijayakumar said in June 2008 that the IPR policy was the first step towards making the state “IP savvy.” The state had planned to form a body under the law department called “Mission IPR” to oversee patent rights administration. (LiveMint)
However, it may be noted that the Kerala IP policy has not been completely implemented so far.

In 2015, Hindustan Unilever (HUL), Mumbai based consumer goods company has insisted the government to include IPR as a subject in the school syllabus of secondary and higher-secondary students.

Dev Bajpai, Executive Director, Legal and Corporate Affairs, HUL said “We have proposed to the government that intellectual property should be part of the syllabus in schools because we feel we have to catch them young”. HUL made this proposal as a part of its suggestions made to the new National IP Policy of the NDA government, aimed at standardizing the implementation of IPR laws and regulations in India.

HUL, the country’s largest consumer products company voiced its concerns with respect to trademark infringement, loss of sales and brand dilution and decided to include the prospective consumers in the battle against circulation of counterfeit products in the market. It has also decided to engage directly with students and educating them about the importance of brands and how to identify genuine and fake products.

Counterfeit products are fake products, having similar appearance and packaging, which are produced and sold at a giveaway price to take an advantage of the superior value of the imitated product. Counterfeiting remains to be an impending peril to the established brands as it accounts to 3-5% of all the products sold in the 2.4 Lakh crores FMCG market in India. This figure multiplies to an annual loss of 8000-12,000 crores to the branded products in the market.

The initiative, fostered by HUL, allows the students to understand the elements of a commercial market and creates consumer awareness regarding counterfeit goods at a very nascent stage. However, this project should be limited to its objective and should not be formulated into a subject to be evaluated in the academic examinations at the school level.

Copyright vs. Design: Where Does One End and The Other Begin?

Ritvik M. Kulkarni, III BSL LL, Law College, Pune

A few days ago, I came across a beautifully written article in Loksatta Newspaper titled “Kaleysaathi ki Vyaparasaathi?” (translated: For Artistic Pleasure or For Business Exploitation?), written by Professor Dr. Mrudula Bele. Dr. Bele is an Assistant Professor at the NDMVPS’s College of Pharmacy in Nasik at Maharashtra. She is also a pharmaceutical development scientist and patent consultant

 In her article dated 21st May 2015, Dr. Bele has discussed inter alia the difference between the nature of copyright protection and design protection. She has very succinctly explained the theory behind affording protection on varied terms depending upon the nature of intellectual property. She has stated that while copyrightable works are created from an artistic intent, other industrial works are created with a view to exploit them and gain profit. Furthermore, copyrighted works in any case are commercially much weaker than its industrial counterparts. For this reason, copyrightable works are afforded stronger protection in terms of the period of protection.  

On this note I have taken the opportunity to discuss a few points in relation to the landmark case of Microfibres v. Giridhar and Co.[1] (“Microfibres”) cited and discussed by Dr. Bele in her article.

A design right can be best described as an amalgamation of trademark, patent and copyright. This is because the function of a design is to appeal to the eye of the onlooker; thereby allowing the product (carrying the design) to assume a distinctive feature. Such distinctiveness is most likely to be achieved for a design as it is mandatorily required to be a new design. However, Indian design law does not protect a design if it is functional or it has utilitarian features; it aims to protect only the ornamental properties therein. And unlike copyright, a design must be compulsorily registered to be protected under the Designs Act, 2000; there is no common law remedy of passing off to protect against design piracy.

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Using Unlicensed Software at your Company? Be Ready for Surprise Raids on your Premises under Anton Pillar Orders!

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Ritvik M. Kulkarni, III BSL LLB, ILS Law College, Pune

Under the Copyright Act, 1957 a copyright holder (the Plaintiff) gets a special civil remedy in cases infringement. The Plaintiff can ask the Court to grant an Anton Pillar order to appoint Local Commissioners to inspect the locations and establishments of the infringer (the Defendant) and seize the infringing works. The Plaintiff can avail of this remedy under Order 26 Rule 9 of the CPC, which provides as under:

Order XXVI Rule 9. Commissions to make local investigations- In any suit in which the court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the court:

Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the court shall be bound by such rules.

The object of the commission under this rule is not to collect evidence which could be taken to court but to obtain evidence which for elucidating matters which are local in character, and it is in the discretion of the court whether to issue it or not[1]. Often in cases of software copyright infringement, the Plaintiff argues that unless the Court grants an ex-parte order, the defendant will get a chance to destroy evidence as it is fairly simple to delete infringing software. Therefore in such cases, a notice to the Defendant is only necessary when the commissioner begins his investigation[2].

In the landmark case of Autodesk Inc. and Anr. v. A.V.T. Shankardass and Anr[3], the Delhi High Court has laid down a few guidelines to abide by, keeping in mind the threat to the Defendant’s privacy:

“(i) The pirated software or incriminating evidence can only be obtained from the premises of the opposite party alone and in the absence of an ex-parte appointment of a Local Commissioner there is likelihood that such evidence may be lost, removed or destroyed;

(ii) Request for ex-parte appointment of a Local Commissioner in such matters is usual and in fact is intended to sub serve the ends of justice as it is imperative to have an element of surprise so that the actual position is not altered; 

(iii) The test of reasonable and credible information regarding the existence of pirated software or incriminating evidence should not be subjected to strict proof or the requirement to demonstrate or produce part of the pirated software/incriminating evidence at the initial stage itself. It has to be tested on the touchstone of pragmatism and the natural and normal course of conduct and practice in trade.

 

(iv) It may not always be possible for a plaintiff to obtain any admission by employing decoy customers and gaining access to the Defendant’s premises. Any such attempt also inheres in it the possibility of disappearance of the pirated software/incriminating evidence in case the decoy customers is exposed. Accordingly, visit by decoy customer or investigator is not to be insisted upon as precondition. A report of private Investigator need not be dis-regarded or rejected simply because of his engagement by the plaintiff. The information provided by the private Investigator should receive objective evaluation.

(v) In cases where certain and definite information with regard to the existence of pirated software or incriminating evidence is not available or where the Court may nurture some element of doubt, it may consider asking the plaintiff to deposit cost in Court so that in case pirated software or incriminating evidence is not found then the defendant can be suitably compensated for the obtrusion in his work or privacy.”

Since this order, there have been numerous cases where such an ex-parte Anton Pillar order has been granted to the Plaintiff. To take an example, Microsoft has been one of the most proactive companies to make a perusal of the above provisions. It has brought infringement proceedings against several companies for allegedly using unlicensed software on their computers.

Remember, copyright in software does not work like it does for other literary works; software copyrights are only licensed to the user and never completely alienated or sold. The main reason for affording this special status to computer programs is based on the fact that there is considerable amount of research done and expenditure made on developing these programs.

Now let’s take a look at how exactly they come across these alleged infringements in the first place.

Huge software companies like Microsoft form a database of their sales; from which they can figure out the computers, and their owners thereof, which are using their software. Next, they cross check their database for the licenses held by (and / or in the name of) these persons / companies. If it turns out that the number of computers carrying the software users is disproportionate to the number of licenses held by the owner(s), they suspect that there is room for infringement on part of the users.

Then in order to get concrete evidence, they hire private investigators to strengthen their claim. These private investigators are required to establish two things: (i) the number of computers or laptops or other related tech installed at the premises and (ii) that these computers carry copyrighted software. The investigators can find out about both these things by simply calling up the concerned officer(s) of the company under the garb of legitimately acquiring other related information. Often, the investigators may even visit the premises of the owner to conduct an inspection. Then on the basis of the preliminary search on the database and the investigations conducted, the software companies immediately apply to the court for an Anton Pillar.

Once the Local Commissioner(s) (“LC”) is appointed, he is required to personally visit the premises of the alleged infringer to inspect the premises for computers carrying the unlicensed software. For the purpose of this visit, the LC may be accompanied by the Plaintiff’s advocate and technical experts (often employed by the Plaintiff). There is a controversy regarding the legality of an arrangement where the Plaintiff’s employees are a part of the commission; since this might prejudice the credibility of the LC’s report.

Read more about this here. (“Can civil courts appoint technical experts in software piracy suits? By Advocate Arun C. Mohan, Madras High Court. Posted on and by SpicyIP.com)

After the inspection is done; all machines found to be carrying the infringing software are sealed, recorded and released on a superdari basis to the Defendant’s authorised agent. The Defendant’s authorised agent present at the spot is required to give a signed undertaking to the Commissioner that the sealed machines and equipment, in their present condition, will be produced before the Court as and when required. The LC then makes his report and produces to the Court. However, such a report is not conclusive evidence of the Defendant’s guilt; the Defendant’s counsel may rubbish the report during the process of cross-examination.

In many cases, once the Defendant realizes that the Court is bound to hold it liable for infringement; the parties commence negotiations, enter into a consent agreement and settle the matter out of Court.

[1] Re Moosa Kutty, AIR 1953 Madras 717

[2] M. Achutan v Kunhipathumna, AIR 1968 Ker 233

[3] {2008 (37) PTC 581 (Del.)}

The Pomegranate Series, Episode 8: Mark My Words!

Among the very first activities that man indulged into, trade and commerce have undoubtedly been two of the most important ones. Even today, almost every democratic country, in its Constitution, expressly provides to its people the freedom to carry out any (lawful) trade, profession and to contract with any capable person. The reason for such strong protection is because the acts of manufacturing goods and conducting business in it have become an intrinsic part of human nature itself. Furthermore, a human being’s most precious asset is his / her identity. It is this unique identity that sets you apart from every other person who breathes on this planet. The same principle is applicable to man-made products which are often very similar to each other; they crave their own unique identity. So what’s in a name? – Everything.

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The Pomegranate Series, Episode 7: Suit Up! (Designs)

In the previous episode, we discussed about the protection of new inventions. We found that a patent are granted for a new product which inter alia necessarily has some utility attached to it. Basically this is innovation which makes life easier. But apart from functional ones, we are known to derive pleasure also from those inventions which embody something beyond something as rational as utility.

The fashion industry, for example, almost entirely strives on innovation as well as creativity. Many among us have a special place in our hearts for branded clothes and accessories. Celebrated brands like Vero Moda and Levi’s handsomely pay their workforce to come up with new designs for their product range every year. Novelty and uniqueness provide the incentive for consumers to buy their product and their rivals to compete more fiercely. These are essentially drawings made on paper (whether physical or on computer software) which, after being applied to some kind of cloth (or dress material), are put up for sale as the final product. Design protection doesn’t end here; it extends to every novel design which has ornamental or visual value of any kind.

The interesting aspect is that the cloth by itself has no IP in itself unless the design in the drawing is applied to it. Even though novelty is an indispensible requirement, this effort is not rewarded with patent protection. The reason for this refusal is that these products lack usefulness. We buy and use a t-shirt because we like their shape, the colorful prints, the beautiful embroidery and essentially all the ornamental and decorative features on the garment which appeal only to our eyes. This fusion of patent and copyright is classified as and protected by IP law as an Industrial Design or Design Patent.

Every design is starts out as a copyright; because it is always based on an artistic work like the sketch of a coke bottle on paper. Serving as a blue print, the sketch is then applied to plastic by using a mechanical process to arrive at what we call a Coke Bottle. But the law says that any three dimensional object (representation) based on an artistic work will also be protected by copyright law. This is where IP law facilitates the beautiful co-existence of design and copyright. The law says that for the first 50 reproductions[1] of the artistic work, a copyright would be operative; but the moment a 51st bottle manufactured by Coca Cola, it falls under the ambit of design law. Therefore an industrial design is an enhanced form of copyright, but falls short of qualifying as a patent. This is one of the reasons the violation of this IP right is termed as ‘Piracy of Design’ instead of infringement.

This form of IP accounts for the a 15-year term of protection for a massive range of manufactured goods such as carving of jewelry, confectionary products, the cuts of your furniture, design of your clothes, in addition to the unique shape and size of your accessories and even your car and that of almost all the Fast Moving Consumer Goods (FMCGs). Since many of these products are used by most of us in everyday life, we sometimes overlook the fact that all registered design have to be novel and previously unpublished (or otherwise in the public domain). Therefore you may realize that the shape or the ‘look’ of even the headlamps of any two car brands is never identical or similar. Therefore the novelty requirement in patents is just as strictly enforced while granting a design. Unlike copyright and trademark, a design (as well as a patent) has to be mandatorily been registered for enjoying IP protection.

Along with an Industrial Design, there is another IP which is protected only after being applied to a manufactured product. But the slight difference between them in terms functionality has caused our last Fundamental IP to be the superstar among the business fraternity.

Watch the last two episodes of the first season of The Pomegranate Series to meet this blockbuster.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

The Pomegranate Series, Episode 6: The Merchant of Venice (Patents)

Around the time Bahlul Lodi was setting up the Lodi dynasty in India, the Venetians had already begun to grant a 10-year monopoly to their inventors for novel inventions. We’ve come a long way from 15th century Venice, but the deal is still the same. Limited monopoly is granted to an inventor in relation to his / her new invention. The reason why it’s different from copyright protection is because most often, the commercial value of an invention is much more than that of a creative work. A strong patent law is indispensable to foster innovation and to constantly incentivize private companies and governments who invest billions of dollars and hire the best minds to upgrade their technological armada.

Being a creation of statute, a patent is a monopoly right granted to an inventor for a new invention by the government of a country. Since IPRs are territorial in nature, a patent granted by the Indian Patent Office (IPO) is only enforceable within the national territorial limits. The monopoly is limited because the object of granting patent is to ensure availability of the specifications of the patented invention in the public domain after the expiry of the term of patent. Therefore a mere idea, which has not been fully disclosed to the IPO in the form of specifications, is not patentable in India (as in most other countries). In addition to the specs, the best mode to create (arrive at) the said invention must also be disclosed.

An invention may be an entirely new / better form of such pre-existing invention (state of the art) or it may be a new (more efficient) process of creating such technology; both the new invention as well as the new process, are patentable. The most primary right that a patent confers on the patentee (inventor) is the exclusivity to make, use and sell the invention. Secondarily, the patentee is also given the right to license out his / her invention to any other person so as to earn royalty for it. Not all inventions are protected by patent. Section 3 of the Patents Act, 1970 provides a list of things for which a patent is not granted by the government. The reason for making these exceptions is that an invention must pass the ‘Golden Quadrangle Test’ (no, they don’t really call it that) to be eligible for a patent.

Let’s take the Tata’s Nano® for example, which has around 37 patented inventions imbedded in the car. The IPO granted these patents after a thorough examination to confirm that the specifications submitted were not available / published in the public domain; and therefore the People’s Car passed the first test of Novelty. It was realized that even the persons skilled in the art of car-manufacturing (engineers or otherwise) could not replicate the patented technology in this car without having access to the complete specifications and the best mode to apply them. After passing this test of Non-Obviousness or Inventive Step, it was abundantly clear that the patented tech could be (and that Tata intended it to be) Manufactured. Last but certainly not the least; Tata was successful in showing that the patents sought were for technology that is useful to humankind, thereby passing the last test of Utility. There it is. Any person who comes up with such an invention which can pass all the four tests listed above, is eligible for a patent. But hey, if you do not want to get a patent while still wanting a monopoly over your invention, fret not; for trade secrets are best kept forever! (Watch the previous episode to know more)

On a slightly socialist note, even though inventions are strongly protected by Patent law, it also empowers the government to grant a compulsory license to an aggrieved applicant when (among other reasons) the patentee refuses to license it on Fair, Reasonable and Non-Discriminatory (FRAND) terms. So inventors are not empowered to hoard their technology and obtain a patent without being reasonable towards its competition in the market. Be that as it may, I would still advise you to be FRAND-ly towards the geek fraternity; you might just have to secure a patent for these people!

Therefore we now know that people who invest their time and money into creating something useful and functional are fiercely protected by Patent law. But what of those create things which appease only to the eye? Watch the next episode of The Pomegranate Series to find the answer to that question and get a chance to meet the most stylish among all IP.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

The Pomegranate Series, Episode 5: What’s all the Hush? (Trade Secrets)

In the last two episodes we saw how a creative expression of your ideas is protected by the State through copyright law. But we were left with a puzzling question: What do we do when you have a great idea, but you are unable to or you do not have the desire to express it? Remember, the whole concept of protection of intellectual property is that the State is going to protect your IP in return for full disclosure; may it be subject matter of a copyright, patent or industrial design. The State can only protect when it knows what it is protecting, and when it knows that eventually it is going to fall in public domain, after which everyone can make use of the said IP. Coincidentally there is no statute which protects undisclosed information or ideas in India.

But what happens when, for example, you come up with a great plot for a movie or a new invention or even a business method (of accounting or managing client lists etc.), but have not written it down because you think you may not be able to do justice to your idea; or because even if you can, you do not have the resources to commercialize your idea and make it successful; or because even when you have the resources, you simply do not wish for any other person to profit from your idea? After all you were the one to come up with the idea, it is only fair and reasonable that only you get to choose who can and who cannot profit from it.

Now is when the law makes an exception to the doctrine of full disclosure.

There is a simple answer: keep it secret. The law allows you to keep your ideas secret, and even extends protection to you for any misuse of that secret, even if there is no statute to that effect. The only conditions are that you must believe that your idea or information is valuable and that you have taken all possible efforts to keep this information secret and that this information is not already available in the public domain. Of course as you may know, a secret not always something that you keep only to yourself; you do tell it to people who you trust can keep it further to themselves.

These people can be bound by contract. Before you reveal your information to any person, you can enter into a contract with him / her to enter into a confidentiality clause or a non-disclosure agreement (NDA). If after entering into such an agreement, such a person discloses your secret to third party, you can sue him / her for breach of confidentiality.

NDAs are very commonly entered into between an employer and their employees in order to protect all proprietary and sensitive information of the employer.. The subject matter need not always be limited to non-disclosure; it may also extend to an agreement restraining the promise from making any use (for benefit or otherwise) of the trade secret (so disclosed) in any manner that the promisor does not allow.

Even though contractual protection is available and enforceable, trade secrets often go unprotected. This may happen because there was no express agreement that the subject matter of disclosure was not meant to be further disclosed. In India, trade secrets and confidential information have been strongly protected in common law by our Courts at various instances even in the absence of an express agreement; especially in disputes between employers and their employees (who quit their jobs and seek employment elsewhere) when the nature of the information is commercially valuable and essentially absent in the public domain.

This form of protection of your ideas is particularly very effective when even the expression of such ideas is not protected under statutory IP law. For example, while an algorithm or mathematical formula (say for selling ball pens more effectively) cannot be subject matter of patent protection in India, it can be protected as a trade secret since it is commercially valuable. Like any other IP, this information (or trade secret) can be licensed, shared as well as sold or assigned to any person by the owner of such information. At other times, even if such expression of an idea is patentable (like the chemical formula for Coca Cola®), one may simply choose to not get a patent over it requires full disclosure of  the subject matter of the idea; especially when one is certain that the subject matter is difficult, if not impossible, to be discovered by reverse-engineering.

After reading this long post on contractual and common law protection of Trade Secrets and Confidential Information, you may now be able to answer the question I posed at the end of the previous episode. And now that I have told you about those expressions (of ideas) which cannot receive patent protection, it might be a good time to tell you which of them can.

Watch the next episode of The Pomegranate Series to meet the most commercially successful and the highest grossing IP blockbuster of all time.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

The Pomegranate Series, Episode 4 (Copyright-II)

Image Source: http://cdn.mikeabundo.com/wp-content/uploads/2008/10/captain-copyright.gif

IP Fundamentals

Season 1, Episode 4: The Original IP- Part II

In the previous episode, we saw that copyright protection is granted to a creator for an original expression of an idea. In this episode, we pick up where we last left it: the Golden Question of Copyright Law. But first, a disclaimer; in law nothing is either black or white, everything comes in shades of grey (pun not intended). So the answer to this question will always vary depending on the facts. Keeping that in mind, let’s carry on.

As some of you may already be aware, the right to expression of one’s thought is the most fiercely protected right in democracies all over the world. The American Constitution confers the right and obligation on Congress to enact laws for protection the expression of creative and scientific thought. This is because governments acknowledge the fact that innovation and creativity contribute the most to their economic and social development.

But the beauty of creative thought, as against its scientific counterpart, is that any particular idea is open to various interpretations. Two added to two will always be four, but two different books on arithmetic will try to explain the same mathematical truth in a different way; there lies the creativity of an author. Protection of this expression of an idea is paramount for the wholesome development of any society. All it asks from the creator is originality if not novelty.

But that is the catch: to be protected by copyright law, an idea must have necessarily been expressed in any tangible form. This means that no matter how brilliant a painting you may have painted on the canvass of your imagination, it will not get a copyright unless you actually pick up a brush and express it on your canvass in the drawing room (or even in paint.exe on your laptop as a jpeg file). The reasons why this principle is universally accepted is because it is simply impossible for any adjudicatory authority to determine the ownership of an idea as the subject matter of that idea is confined to the minds of the persons claiming ownership. Secondly if ideas were protected by copyright then it would be a gross violation of the fundamental right of expression as any person who adapts from a common idea will become liable for an infringement suit. This will have a drastic effect of abrogating the very right the State had sworn to protect.

So the next time you reveal your awesome plot for a movie to a producer, make sure you have a copy of your valuable idea in print so that you can protect yourself from infringement, lest the producer makes a movie based on your plot. (See R. K. Anand v. Delux Films AIR 1978 SC 1613)

Have another great idea? Watch the next episode of The Pomegranate Series to know how it can be protected and commercialized without getting a copyright or patent.  

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com

The Pomegranate Series, Episode 3 (Copyright)

The Pomegranate Series

IP Fundamentals

Season 1, Episode 3: The Original IP- Part I  

A great man once said that in the absence of art and literature, human beings would be nothing but animals. Entire civilizations have been (and are) based upon the cultural treasures such as plays, paintings, and manuscripts. Given the kind of position these works occupy in our society as in our hearts, it is only fair that their creators must receive the same respect and reward as they do. Those among you, who’ve had the opportunity to author any such creative work, would surely know that ownership over your work is a very strong emotion even if it is something as commonplace as a YouTube video. Nations of the world have therefore come up with copyright law to award protection to creators of such valuable intellectual property.

A copyright is just as simple as it sounds: a right to copy (to reproduce / recreate). Unlike the right to life, a copyright is not a natural right; it is has been created by statute (enacted law): The Copyright Act, 1957. The Indian Parliament enacted this law with the purpose of granting a (limited) monopoly to creators for those original works which qualify as copyrightable under this Act. Such works include all artistic and literary works such as drawings, photographs, music, dance, books, movies as well as computer programs to name a few. The only other condition is that the work must be an original expression of the creator’s idea; it cannot be a copy or a plagiarized version of an already existing work.

A copyright comes into existence at the moment a copyrightable work is created. Even though the law provides for registration, no person is under any compulsion to register the copyright. An unregistered copyright can be equally protected from misuse / infringement. When any person tries to or exercises any of the rights given to the creator of the work by making, using, distributing or selling any copy of the work; the latter has the right to initiate proceedings against such a person (infringer) in the court and to ask for compensation for such an unauthorized act of infringement. After creation of a copyrightable work, a copyright is generally granted for a period of 60 years after the death of the author.

After knowing this, you may ask “So whenever any person makes a copy of any original work, such a person will be liable for an infringement action? If I take a photocopy of a Chapter from my History Textbook because I did not want to buy the entire book, would that make me an infringer?”

If this question popped up in your head, you are either thinking in the right way or you took too many photocopies of a book. The answer to such a query is NO, it shall not be an infringement; but you could avail of this exception only because it was for an educational purpose. If on the other hand you would have sold the said photocopies on the internet, you may have well become an infringer. Certainly, this exemption for infringement is not limited to educational purposes; it is also extended to various other fair uses which are enumerated under Section 52 of the Copyright Act, 1957.

I hope this gives out a clear idea about what exactly is a copyright, what it is granted for and how it is protected by the courts. But just one more question.

Does the law grant a copyright over a creative (artistic or literary) idea which has not yet been penned down on?

Watch the next episode of The Pomegranate Series to find out.

Ritvik M. Kulkarni
III BA LLB
rmkulkarni.ils@gmail.com