How to Protect Your IP Rights as a Musician or Artist | Copyright Registration Lawyer in India

Artists, musicians, and writers present a wide range of creativity and expression within India's vibrant creative industry. However, in the modern age, protecting one's intellectual property remains crucial. Understanding the intricacies of copyright law, especially with the guidance of a copyright registration lawyer in India is essential for writers, musicians, and other creatives in India. It will help navigate the waters of creativity. Together, we will delve into great depth on how you can safeguard your intellectual property rights and strengthen your creative pursuits.

Explore invaluable strategies from a copyright registration lawyer in India for protecting your creative property as a writer, musician, or artist.

What is Copyright?

Copyright grants exclusive rights to your original literary, musical, or dramatic creations, serving as a safeguard for your creative output. In India, copyright protection extends to various forms of artistic expression, shielding your works from unauthorized use, distribution, or adaptation.

Understanding the Scope of Protection

Copyright protects your artistic creations when they satisfy three fundamental requirements: originality, expression, and fixation. Originality highlights the distinct mark of your creativity, whilst expression captures the real-world application of your concepts. Fixation guarantees the materialization of your creative concept on a canvas, text, or digital recording.

Authorship and Ownership

You remain the author of your creations as you are the one who created your original idea. But by the assignment or transfer of rights, ownership can transcend authorship. Making a distinction between these two aspects is essential since copyright protection's lifespan and the author's legacy are directly related.

Duration and Privileges

In India, your creative pursuits are shielded by copyright protection for the next sixty years plus your own life. Within this temporary haven, you possess the exclusive authority to duplicate, disseminate, and exhibit your creations in public. These benefits provide you the ability to write the story of your creative legacy and support yourself financially through your artistic endeavors.

Comprehensive Protective Measures

Even with protections in effect, copyright infringement remains a constant danger to your artistic independence. Unauthorized duplication, dissemination, or modification of your creations is infringement and requires careful monitoring of your creative property. In order to strengthen your creative stronghold, consider implementing these protective measures:

Copyright Registration: In the case of a disagreement, copyright registration serves as prima facie proof and legally validates your ownership. It creates a public record of your rights, which facilitates their enforcement. In India, registering a copyright entails sending an application to the Copyright Office via online portals or by mail with the necessary fees and accompanying documentation. The application usually contains information about the work, like its title, creator, and creation date.

Marking the Work: Adding your name and the year of creation to the copyright sign (©) on your artistic works serves as a visible identifier of ownership. This simple to use yet effective measures protect your rights and serves as a warning to potential infringers. Whether your creation is a written text, a digital image, or a real painting, make sure the copyright notice is clearly visible on it. Maintaining a consistent attribution system for your works fortifies your position in the event of a dispute and helps provide a clear trail of ownership.

Licensing Agreements: Craft bespoke licensing agreements tailored to meet the unique needs and usage rights of your creative works. It is imperative that these contracts precisely outline the parameters of usage, encompassing elements like replication, distribution, modification, public presentation, and online distribution. Specify the license's duration, territorial restrictions, exclusivity, and royalty rates, among other details. Take care of any possible situations involving sublicensing, derivative works, or changes to guarantee complete protection of your rights.

Digital Protection: Include metadata and digital watermarks in your digital artworks to indicate ownership and prevent unauthorized use. Watermarks can contain information like usage limits, authorship data, and copyright notices. They can also be visible or invisible. Use digital rights management (DRM) tools and encryption techniques to restrict access to your digital property and stop illegal duplication and distribution. DRM methods improve the security of protected content by limiting its viewing, printing, or sharing.

Vigilant Enforcement: Create proactive monitoring systems to keep an eye out for possible infringement on several channels and platforms. use online resources such as image recognition software, web crawlers, and social media monitoring tools, as well as other digital tools and services, to check for unauthorized usage of your copyrighted works. Examine websites, social media sites, online markets, and other outlets on a regular basis to see if your work is being shared without permission. Investigate actively any instances of unapproved distribution, duplication, or modification of your creative works. To safeguard your rights in the event of infringement, take prompt and decisive enforcement measures, such as takedown requests, stop and desist letters, and, if required, legal action.

Education and Awareness: Engage with the artistic community and stakeholders to spread knowledge about intellectual property rights and copyright laws. To inform artists, creators, and enthusiasts about their rights and duties, arrange workshops, seminars, or webinars. Promote stronger enforcement policies and legislative changes to improve copyright protection and stop infringement. Work together with legislators, legal professionals, and trade associations to influence regulations and advance a respect for creative rights culture.

Conclusion

Navigating the complex system of copyright laws as the guardian of your creative legacy enables you to protect your intellectual sovereignty and prosper in the evolving Indian creative landscape. By embracing comprehensive strategies for intellectual property protection helps you to create a thriving creative and innovative environment in India while also safeguarding the integrity of your artistic vision. In this journey, A copyright registration lawyer in India can provide crucial legal guidance and insights to help negotiate the complexities of copyright law. You can protect your artistic rights and strengthen your creative fortress with their knowledge and expertise.

 FAQs

 Q1. What are the rights of creativity?

Ans- The rights of creativity encompass the exclusive privileges granted to creator, which protect their ability to reproduce, distribute, display, perform, and modify their creations. This broad set of rights, protected by copyright laws, gives authors authority over their works in a variety of media, including written words and computer code. It's a dynamic shield that gives artists the freedom to decide what happens to their creations, which encourages creativity and artistic expression. Not only are creators shielded from exploitation by copyright, but it also encourages them to keep exploring the limits of their creativity.

Q2. Who owns the intellectual property of a song?

Ans- There are typically two parties that hold intellectual property rights in a song. Unless the artist has transferred ownership to the record label they are affiliated with, the recording usually belongs to the producer. Secondly, the songwriters' copyright encompasses the entirety of the musical composition, including both lyrics and music. This results in a dual ownership structure within the realm of musical creativity. Even though an artist may have control over the recorded version, the original creators of the song still maintain creative rights. 

Q3. Is written content intellectual property?

Ans- The rights of creativity encompass the exclusive privileges granted to creator, which protect their ability to reproduce, distribute, display, perform, and modify their creations. This broad set of rights, protected by copyright laws, gives authors authority over their works in a variety of media, including written words and computer code. It's a dynamic shield that gives artists the freedom to decide what happens to their creations, which encourages creativity and artistic expression. Not only are creators shielded from exploitation by copyright, but it also encourages them to keep exploring the limits of their creativity.

Q4. What are the copyright rights of artists?

Ans- Owners of the copyright to their creations have a wide range of strong legal protections. They alone have the right to make copies of their works, choose where to distribute them, and create new works that are based on their earlier works. They also enjoy the luxury of presenting their work to the general public and deciding how best to communicate their creative ideas. In addition to providing legal protection, these copyright rights give artists the freedom to direct the course of their works.

 

 

 

 

 

 

 

 

 

Orphan Works

Copyright protected work for which the rights holder(s) is/are positively indeterminate and cannot be contacted, is said to be an Orphan Work. Even when the author is known, but there is lack of sufficient details to contact him or her, the work falls into this domain. A copyright holder’s sudden demise might also lead to the work slipping into the category of Orphan Works, when the inheritance cannot be established.

The fact that the owner of the copyrighted work cannot be reached makes it very difficult to obtain his permission for the use of the work, mere digitization becomes impossible. The use can only be warranted by Fair Use Exceptions.

The respective Governments have taken steps towards extending the accessibility of these works to the general public for these works to maintain their successful circulation and some have also taken steps to guarantee the payment of royalties for use of such works.

The latest news in this regard, is the UK IPO’s licensing scheme for Orphan Works. The IPO intends to maintain a register of works which can be licensed out to Applicants upon payment of royalties. The register will also enable the authors to check if any of their works have been labeled as Orphan Works under the system. The IPO also retains the power to deny the Applicants licenses where the proposed use is deemed to be inappropriate, or on any other reasonable ground.

The EU rules, in place, have already allowed the libraries, museums and universities, among other institutions, to digitize “Orphaned Works” from their respective collections, only after a diligent search has been carried out for determining the owners of the works. It is only time which shall determine the success of the scheme which the UK IPO has intended to move ahead with, and similar frameworks being adopted by other IP regimes across the globe. 


- Bagmisikha Puhan

Fair Use Defense

Fair use as a concept stands on very tricky grounds. One cannot just be sure if the ground will stick through as fair use or not. In the scenario where such a matter reaches the courtroom, the time and finances that are invested into settling the dispute, many a times outweighs the benefit reaped out of the use in the first place.

For all those people who have been taking shelter of acknowledgments and disclaimers are not really safe. The very fact that one has acknowledged the original author in his or her use of the protected work does not preclude the person from their liability in a suit of infringement.  The fact that the original author has been cited can support the author in his claim of infringement; if he chooses to retort to the claim of a person infringing upon his right of publicity.

The fact that a disclaimer has been added to the use of the protected work does not preclude the user from his liability towards infringement. A disclaimer stands to prove stronger grounds for fair use, but does not stand as a ground for defense in its own merit.

One of the best ways to avoid any claims of copyright infringement is to abstain from using the protected material without the explicit permission of the original author. Apart from the usual factors which are taken into consideration while judging an instance of fair use, consideration of acknowledgements and disclaimers proves to be a viable option for the courts. 

- Bagmisikha Puhan

Registration and Protection of Designs in India

In India registration and protection of Designs are regulated by Designs Act 2000 and Designs rules 2001. Design is defined under Section 2 of Designs Act 2000 as only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of section 2 of the Trade and Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957(14 of 1957).  A design is prohibited from registration on the grounds mentioned under Section 4 of the relevant Act, i.e.,

a) that the design is not new

b) that it has been previously published in India or in any other country by publication in tangible form or by use in or in any other way prior to the filing date, or where applicable, the priority date, or where applicable, the priority date of the application for registration; or 

c) that it has been significantly distinguishable from known designs or d) comprises or contains scandalous or obscene matter.   Further, a design is subject to cancellation on the grounds mentioned under Section 19 of the relevant Act, i.e., a) that the design has been previously registered in India, 

b) that it has been previously published in India or in any other country prior to the date of registration or c) that the design is not a new or original design or c) that the design is not registrable under this Act; or 

e) that it is not a design as defined under clause (d) of section 2. 

Although in India design has not been classified further into categories according to Designs Act 2000, but it has been observed that Indian Courts classify the design in question into aesthetic and functional. An aesthetic design is one which is applied to any article, whether for the pattern or the shape or the configuration or the ornamentation thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof. A functional design means any design applied to any article, whether for the pattern or the shape or the configuration thereof, or for any two or more of those purposes, and by whatever means it is applied, having features which are necessitated by the function which the article to which the design is applied is to perform. In India the landmark judgment which acted as precedent for subsequent cases was passed in Bharat Glass Tube Limited v. Gopal Glass Works Limited. In this case the the Court gave interpretation of Section 2 (d) stating “Designs has been defined in Section 2(d) which means that a feature of shape, configuration, pattern, ornament or composition of lines or colors applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process. That means that a feature or a pattern which is registered with registering authority for being produced on a particular article by any industrial process whether manual, mechanical or chemical or by any other means which appears in a finished article and which can be judged solely by eye appeal.  The definition of design as defined in Section 2(d) read with application for registration and rule 11 with form 1 makes it clear that the design which is registered is to be applied to any finished article which may be judged solely by eye appeal. A conjoined reading of these three provisions makes it clear that a particular shape or a particular configuration is to be registered which is sought to be produced on any finished article which may be judged solely by eye appeal.[1] However the judgment passed in Interlego v. Tyco Industries,[2] the landmark British case which was pertaining to designs of toy bricks originated in Hong Kong and eventually was filed before the Privy Council in the United Kingdom acted as guiding principle for cases in India. In that the Privy Council observed that the bricks qualified for registered design protection, and thus did not qualify for copyright protection. Lord Oliver observed as follows -

“Inevitably a designer who sets out to make a model brick is going to end up by producing a design, in essence brick shaped. […] There is clearly scope in the instant case for that argument that what gives the Lego brick its individuality and the originality without which it would fail for want of novelty as a registrable design is the presence of features which serve only the functional purpose of enabling it to interlock effectively with the adjoining bricks above and below”.

The court further held that design drawings were a combination of both artistic and literary works. The written matter on such a drawing comprised the literary matter, and the graphics the artistic matter.

The only changes made to the drawings were alterations to some radii and to the dimensions of some elements. Lord Oliver further observed-

“Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality.”

In India designs are protected by two legal rights, they are as follow:

1)      Registered Designs

2)      Artistic Copyright

 

Design registration in India gives the owner, a monopoly on his or her design, i.e. the right for a limited period to stop others from making, using or selling the design without the owner’s permission and is additional to any design right or copyright protection that may exist automatically in the design.

           Under Section 6 

           (1) a design may be registered in respect of any or all of the articles comprised in a prescribed class of articles. 

        (2)Any question arising as to the class within which any article falls shall be determined by the Controller whose decision in the matter shall be final.

         (3)Where a design has been registered in respect of any article comprised in a class of article, the application of the proprietor of the design to register it in respect of some one or more other articles comprised in that class of articles shall not be refused, nor shall the registration thereof invalidated—

Under Section 7 the Controller shall, as soon as may be after the registration of a design, cause publication of the prescribed particulars of the design to be published in such manner as may be prescribed and thereafter the design shall be open to public inspection.

           Under Section 11when a design is registered, the registered proprietor of the design shall, subject to the provisions of this Act, have copyright in the design during ten years from the date of registration.

           To conclude with, a design is entitled to be registered and protected from being copied and applied on the same article and of the same class of articles which is not merely functional but has an aesthetic appeal to eye. At the same time a design is entitled of copyright which is absolutely original and has not been copied from any other class of articles.

By Ranidipa Ghosh

For Biswajit Sarkar

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[1] 2008 AIR 2520

[2] [1989] AC 217

The Copyright Amendment Bill, 2012

The Copyright Amendment Bill, 2012 is successfully passed in the Parliament, is now waiting to be signed by the President. This bill marks a historic turning in the foster of Copyright laws in India. It introduces many pertinent changes in the Copyright laws. One of the characteristics of the Bill is that it has tried to make certain definitions. It defines commercial rental, Rights management information, visual recording.

Cinema is one of the craziest stuff that we, Indians have promoted and enjoyed a lot. Thus, the amendment with regard to the royalties payable to the music composers and lyricists is very much celebrated by the people. Right from the Oscar holder A.R.Rahman to the celebrities like Javed Akhtar & Shankar Mahadevan had struggled a lot to get this amendment pass in the Indian Legislature.  Under the former provision these music composers and lyricists didn’t have right to claim royalty equally. The problem was especially with regard to the cinematographic works or generally cinemas. The copyright for the movie either goes to its producer or its director. The lyricist and the music composers usually assign their copyright for their work to these people for the money considerations thus lacking right to claim any equal amount of royalty. Now the amended law has made eligible for the music composers and the lyricists to claim an equal share of royalties and consideration payable in case of utilization of their work.

Another interesting amendment is that to relinquish the copyright, the author may merely give a public notice. The Bill also amends that the photographs shall enjoy copyright protection as that of any artistic, literary, musical work (cheers to the photographers…). The Bill in addition enables the author to license any of his work by mere writing document not necessarily signed. Again the Bill proposes that the compulsory license shall be granted for any works rather than ‘ Indian works’ which is indeed a really good provision as it facilitates for more availability of works to the people. Another significant amendment is that it allows any person working for the benefit of persons with disability on a profit basis or for business, to apply to the Copyright Board for a compulsory license to publish any work in which copyright subsists, for the benefit of such persons. Moreover these applications need to be disposed off as soon as possible in a favorable manner. This Bill also makes a provision with regard to the cover version copies, which shall be made only after 5 years of making the original. It requires that the cover version be of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD. Also strict regulations are made like the cover version should claim it to be the cover version & not to be misleading, royalty to be paid in advance if 50, 000 copies are to be made, no alterations to be made except for the technical necessities.

This Amendment Act also inserts that every copyright society shall be registered for a period of five years and may be renewed from time to time before the end of every five years on a request in the prescribed form. This bill also elaborates more upon the performers rights like he/she can claim for royalty in case of making of the performances for commercial use; performer of a performance shall, independently of his right after assignment, either wholly or partially of his right, have the right to claim to be identified as the performer of his performance and  to restrain or claim damages in respect of any distortion, mutilation or other modification of his performance that would be prejudicial to his reputation.

Again the fair dealing provisions are now applicable to all the works and also says that the transient or incidental shortage of a work or performance purely in the technical processor electronic transmission or communication to the public or for the purpose of providing electronics links,access or integration, where such links, access or integration has not been expressly prohibited by the right holder will be an exception.This is available only till he/she who does such storage a complaint from the copyright holder alleging it to be infringement.In such a circumstance he/ she shall not use this works for a period of 21 days or till he/she gets a court order prohibiting them to continue.

Another vital provision is again to people with disabilities. The amendment act allows the use of any work or performance in any accessible format for the using it by the persons with disability on non - profit basis.Another remarkable amendment is the introduction of the provision which punishes any person who would puncture any technological measure taken to ensure the copyright for a period of 2 years.Also there has been a modification to the moral rights of the authors.Moral rights are the inherent right available exclusively to the author even after the assignment or the licensing or expiration of the copyright.The amendment has now allowed the legal representatives of the author to claim the right to claim authorship along with the other rights which was not allowed in the earlier act.

By
S.Deepika
for 
Biswajit Sarkar