Law Matters | IN Content Law

Although copyright protects certain creative works, that protection is limited with both statutory and doctrinal restrictions limiting the scope of the exclusive rights to copyright owners. These limitations allow persons to use copyrighted works in certain ways without the permission of whoever owns the copyright in those works. For example, it is possible that the copyright framework would allow for transformative use to be made of a work without the permission of the owner of the work, and it is certain that insubstantial use could be made of a work without authorisation so long as the use fell within the scope of “fair use”. In a non-digital environment, these restrictions worked relatively well, and enabled the protection of both copyright owners and copyright consumers. However, when transferred to an online environment in the current climate the restrictions on the scope of the exclusive rights of copyright owners have become far less robust. Given the prohibitive cost of de...

The EPW recently ran a series of articles on plagiarism in Indian academia: How Does the System Encourage Academic Dishonesty? by Rajeshwari Deshpande Pirates, Plagiarisers, Publishers by Prashant Iyengar Plagiarism and Social Sciences by Manjari Katju Karaoked: Plagiarism in the Classroom by Dhanwanti Nayak

It is fairly clear that "modern" copyright is a creation of statute, and in particular, the creation of the 1709 Statute of Anne. Although there did exist proto-copyright mechanisms in various parts of the world, it would appear that none of them were comparable to the form of copyright contemplated by the 1709 statute. The changes which have been observed over the last three hundred or so years in the realm of copyright law have for the most part dealt with the nature of works protected, the nature of the protection granted to copyrightable works, and the length of time for which protection would be granted. With respect to protectable works, it was only in 1735 that engravings began to be protected by copyright, and in 1862 that photographs were accorded protection. In terms of the rights granted to copyright owners, the scope of available protection under the law has increased considerably -- for example, copyright owners in contemporary times enjoy a full translation ...

As a general rule, ideas are not protectable by copyright. It is only the expression of an idea which copyright protects (for a long though limited period of time). Referred to as the idea-expression dichotomy, there is, however, a rather thin line between ideas and expressions, and it has never been entirely clear just where an idea stops and its expression begins. To make the situation more complicated are theories such as the merger doctrine and the law relating to scènes à faire. The merger doctrine states that if an idea can be expressed in only one way, the expression of that idea would not be protectable by copyright law. It is not entirely clear whether this is because the merger doctrine ensures that the idea-expression is not copyrightable in the first place, or because the merger doctrine applies as a valid defence to a claim of copyright infringement. Either way, the doctrine flies in the face of the general understanding, and, in some cases, statutory stipulation, 1 tha...

Note: This article focusses on the clearance of the content in a film, not general contractual and regulatory clearances for shooting and dissemination (including CFBC / FCAT processes which are a different story altogether). Film Clearance involves the legal clearance of a film prior to its release. Clearances are undertaken at the behest of different parties such as producers or distributors, and at different times: specifically, clearance may take place in relation to the production of a film or in relation to the acquisition of any/ all rights in it, and could affect the market value of those rights. As one would expect, it is generally producers who commission clearance during production, and distributors who commission clearances in relation to acquisition. In both cases, the objective is to ensure that the content of the film is clear of any legal violations and breaches of contract, and that the film would not cause whoever has commissioned the clearance to have to incur any...

The first sale of a copy of a copyrighted work exhausts the rights of the owner of the copyright in the work to control the resale of that copy, assuming that the first sale was a legal sale of a legal copy. The exhaustion of rights may be international, regional or national. A misunderstanding of what international exhaustion ("IE") appears to be is that IE envisages that once a copy of a work is sold anywhere in the world the owner of the copyright in that work loses the right to resell it only in the domestic territory . In other words, assuming that India were to follow IE, if a copy of a work were sold in the US, the owner would lose the right of resale only in India. Even though there has been a conflict in the US about IE, the general understanding of both academics and organisations who deal with international exhaustion is that the term "international exhaustion" means that the first sale of a copy of a copyrighted work anywhere in the world results...

An edited and (with any luck) coherent compilation of the posts on this blog about the proposed amendment to Section 2(m) of the Copyright Act, 1957, and its effect on books: http://ssrn.com/abstract=1763690 (This post is by Nandita Saikia and was first published at Indian Copyright .)

There has been much discussion about the proposed amendment to Section 2(m) of the Copyright Act, 1957. Among other assertions which have been made is the assertion that it would destroy Indian Editions (which are priced lower than Editions in other parts of the world). In other words, the fear is that it would result in international publishers not voluntarily granting licences for low priced Indian reprints to be made. Whether or not this fear is legitimate has been widely debated. One of the counters to the assertion that the low-priced edition programme would be destroyed is that it does not matter if publishers were to refuse to voluntarily grant licences for the publication of a low priced Indian Edition because the compulsory licensing provisions of Section 32A could be invoked to force the grant of a licence. However, one concern about the viability of this “remedy” for the destruction of voluntarily published Indian Editions is that it is possible that Section 32A woul...

Note: This post deals with the applicability of the proposed amendment to Section 2(m) of the Copyright Act to exports, which has been debated . Its author, Nandita Saikia , has been involved in advising a number of organisations on the various aspects of the Copyright (Amendment) Bill, 2010, including the proposed amendment to Section 2(m) . The Exhaustion of Rights Copyright owners have a right to sell copies of works protected by copyright. However, the right is a restricted right: a copyright owner may only control the first sale of a copy of a work. After this, he loses/exhausts the right to control subsequent sales of that copy of the work, assuming that the “First Sale” of is a legal sale of a legally copy of the work. Copyright regimes vary, and upon the First Sale of a copy of a work, a copyright owner may lose the right to control subsequent sales only in the country where the First Sale took place -- this is referred to as national exhaustion. Alternatively, he may lose ...

Sometime ago, an article on Slashdot reported that some entities had claimed that " linking is publishing ". While it is unlikely that such a position would be supported by many today, at least as far as making a credible claim of copyright infringement in India is concerned, what's interesting about the claim is that it seems to harken to the early years of the Internet when lawyers were actually grappling with such questions, and attempting to determine the legality of not just linking in general but of the various kinds of linking. An article written earlier on the subject has been reproduced below. (Note: This post does not focus on ISP liability. It was first published at Lawmatters.in and is also available here at SSRN. ) A hyperlink usually links one document (an anchor) on the Internet to another document (the target). Usually referred to as a links, hyperlinks may be one directional, bi-directional or may be used in more complex patterns. There are seve...