Intellectual Property Rights

In this section, we will understand the various components of copyright and copyright law.

Nature of the Right

One of the fundamental principles of copyright law was that of territoriality, that is, the copyright granted by law is only recognized and enforceable in the territory of the state that has granted the said right. The exception to this situation is one in which the state in question has entered into any international agreement to the contrary, which is the case with most nations of the world today. That said, however, there are many aspects of copyright laws that remain territorial in nature. The most important of these include the term of copyright and situations that qualify as fair use/fair dealing; which we will discuss in the subsequent sections. Generally, the term of copyright is the lifetime of the author (creator/owner) (plus) fifty to hundred years from the death of the creator. In the case of anonymous works or where the copyright vests in the corporation, the term of copyright is a fixed period, usually between fifty to hundred years from the date of creation of the work. Copyright extends to a variety of ‘works’, either literary, artistic, dramatic or scientific. These include, among others, books, stories, poems, plays, motion pictures, music compositions, software, drawings, sound recordings, industrial designs etc. The owner of the copyright typically has the exclusive right to produce copies of the work, decide the terms and conditions for import/export, transmit the work in any manner, perform/display the work, create adaptations or derivations of the existing work and to transfer these rights to any other person, either by assignment or sale.

The ‘Idea’-‘Expression’ Dichotomy

The common misconception is that copyright protects ‘ideas’. You might have heard the phrase in common parlance; “I have this great idea for a story... I’m going to copyright it.” This is a classic illustration of a misunderstanding of what copyright protects. Copyright does not protect idea or mere information. The protection is only extended to the expression of this idea/information. For instance, assume that there was the basic plot of a murder mystery; and you authored a book on the same. The copyright of that book would vest with you and/or the publisher of that book. If this basic plot was modified and expressed in a different form and resulted in another novel, the copyright of the second novel would vest in the author and/or publisher of the second novel.

Fair Use/Fair Dealing

While the general rule is that all copying and distribution of the copyrighted work has to be done with the express permission of the copyright holder, some exceptional circumstances allow for this requirement to be dispensed with. These are known as fair use/fair dealing (depending on the jurisdiction). In most jurisdictions across the world, private use, copying for the purposes of education/research/study, non-commercial purposes, making accessible copies for persons with print disabilities and temporary reproduction of the work in machine readable form for a computer and making transient and incidental copies of the work would, among others, fall under this exception. The guiding principles to be followed when examining ‘use’ as fair use/fair dealing include examining the nature of the copyrighted work, the purpose of the intended use, proportion of the original work in the new work and the effect of the intended use on the potential market of the copyrighted work in question.

Transfer of the Right

Aspects of copyright are transferrable from one person to another. This transfer may be as a result of assignment as well. This is typically the case in today’s world, where an author transfers the copyright to the publisher in return for a lump-sum payment, and the royalties accruing from copyright are payable to the publishers. Similarly, a music composer transfers royalties to the record companies, film makers to producers and so on. While in most instances the prior permission of the copyright holder is a prerequisite for using a copyrighted work and one requires a license from the holder to use the work, in some cases, it might not be needed to obtain this from the holder of the copyright. This concept is that of the compulsory license, which is recognized in some jurisdictions. This application is to be made to the government/established authority with a proper notice.