MAPPING COPYRIGHT LAWS ACROSS THE WORLD: A COMPARATIVE ANALYSIS

Updated: Jul 6, 2020

Authors:

Jahnvi Gupta, DNLU Jabalpur

Gunjan Hariramani, MNLU

Editor: Akansha Singh, NLU Lucknow


INTRODUCTION

I’ll be back!

Unless you live under a rock, you probably must have heard or seen this iconic dialogue. It is from the world-famous science fiction film, “The Terminator”. What the movie is also known for is the display of fancy machines, apocalyptic world, and, of course, revenge and killings. But are these things exclusive to this movie franchise? Have these elements never been copied in any other movie? The obvious answer to these questions is no. The things mentioned here are also present in The Blade Runner franchise starring Harrison Ford and many more. So how does this work? What is Copyright? Copyright is a type of intellectual property protection granted under Indian law to the originators of the works of authorship such as literary works, artistic, musical and dramatic works, cinematographic films and sound recordings. So the difference above was that the idea was similar but the expressions were different and copyright protects expressions and not ideas.


COPYRIGHT LAWS IN U.S.A AND INDIA

In India, we have COPYRIGHT ACT, 1957 which has been amended six times till now. In 2012, the bill was passed by both the Houses of the Parliament and it came into force on June 21, 2012.[1] In the United States of America, there is THE COPYRIGHT ACT, 1976. In United States Laws, the copyright is provided when the originator “fixed the copy for the first time.” The works have to be original in its form and should not have any resemblance and it has to be “fixed” in any “tangible means of expressions”. In India, the registration of copyright is not mandatory as registration is considered a mere record of facts. The registration is not a prerequisite for initiating action against infringement of copyright, rather, it is protectable through the International Copyright Order, 1999 but it is advisable that the registration process should be done because it gives the ownership proof. In the United States of America, a formal registration with the US Copyright Office is required for enforcing copyright. If we talk about the duration of copyright, there is a difference of 10 years, like in India the duration for copyright is for lifetime and 60 years after the originator’s death and whereas in The United States of America the duration of copyright is for a lifetime and 70 years after the originator’s death.[2] Are there any exceptions to copyright laws? Yes, of course. The exception of Fair use.[3]There is an exhaustive list when we talk about fair dealing with respect to Indian Laws because there are limitations and restrictions in India, whereas, in the United States of America, fair use provides an open and wide ambit for the fair users of a copyrighted work. The laws of fair dealing are given in Section 52 of The Copyrights Act, 1957, there is no exact definition of fair dealing in Indian laws so our hon’ble courts referred to the case of Hubbard v Vosper[4] while giving judgments. Indians are known for their traditional or conventional thinking and so to continue this legacy they prove this in copyright laws also because an exhaustive list is made and if anything that falls outside this list will be counted as infringement so there is a very limited scope. Now if we look in The United States laws the doctrine of "fair use" keeps its doors wide open for any new exception which adds up to fair and bonafide use of a copyrighted work. Section 107 of the Act talks about fair use and also a creative commons license is provided under US laws which give permission to use copyright works with certain exceptions. The other exception is the doctrine of Scènes À Faire. It literally means "scene to be made" or "scene that must be made". These are elements of work that are so common that they do not even come under copyright. It refers to scenarios where there is no other option to portray a certain idea without the usage of some specific elements. These can be scenes, incidents, characters, or settings that are practically indispensable or for the least, standard in the treatment of a given idea. For instance, to show cauldrons and broomsticks in a movie about witches would count as a standard practice, as they are essential elements customary to this particular genre. The only thing that matters while determining whether the doctrine can be applied or not is the degree to which something is copied. If a scene is copied to a further extent and is precisely similar to a larger degree, then the doctrine of Scène à faire would not be applicable for the defense of the defendant. The scène à faire doctrine is a common defence for copyright infringement which creates a fair balance between standard practices and copyright law. It gives an individual the freedom to express a specific theme in his/her own way. The doctrine originated from the case of Cain v. Universal Pictures[5] in California. It is a common defence in The United States of America but in India, it is not. It is nowhere mentioned in Indian laws and our Act remains silent even on idea-expression dichotomy and in India, it originated from the case of RG Anand v. M/s Deluxe Films.[6] So the Indian Act is silent about it but considers it into force.

Indian laws are a bit conventional as compared to the United States’ laws but India keeps on amending laws to be effective and to protect one’s expressions.


COPYRIGHT LAWS IN INDIA AND INDONESIA

According to the United States Chamber of Commerce’s 2018 International Intellectual Property Index, Indonesia stood at 43rd position, while India stood at 44th position. The Top 3 countries of the Index were – USA, Britain, and Sweden.[7]

Similarly, according to the 2019 International Property Rights Index, Indonesia stood at 65th position out of the total 129 countries[8]; Whereas India improved its position and begged 55th Position in the same index.[9]

India’s Copyright laws are way different from the Copyright laws followed in Indonesia. These laws are different in terms of the rights provided to the author/ creator of the publication, works covered under these laws, Punishments awarded on infringing of the Intellectual right of anybody, provisions for the protection of creators and foreign work from foreign nationals, Duration/ term of the copyright, Registration procedures involved, Conventions and treaties these countries are signatory to, and so on. [10]


WORKS COVERED - SIMILARITIES & EXCEPTIONS

Work protected under the Copyright Laws of Indonesia and India is almost similar except for some works. Some of the specific works are as follows:-

Artistic work, comprising paintings, sculptures, drawings, engraves, and photographs, architecture, craftsmanship, portraits, etc.

Dramatic Artwork, Literary work (Computer games, compilations & computer database), Musical works.

Sound recording, Cinematographic film, Developments in Information/ technology Industry, translations, anthologies, etc.[11]

Indonesia New Copyright Law protects even small contributions like talks, lectures, speeches, and other similar works, whereas the Indian Copyright Act, 1957 do not protect such works. [12]


RIGHTS AND DURATION OF COPYRIGHT - SALIENT FEATURES OF COPYRIGHT LAW

  1. The New Copyright law establishes new rights for the owner/ creator of all the written works such as books, music or song (lyrical/ non-lyrical), which has been assigned either through sold flat agreement or assigned for without a specific time span, then that work must be returned back to the author/ creator after completion of 25 years of the deal[13], but in Indian Copyright Act there’s no such right established.

  2. Economic right, as in for written/ tangible works such as architecture, fine arts, music/ song, books, articles, etc. of the author goes for a lifetime with him/her. In case the owner of the copyright dies, the copyright remains in his/her name up to 70 years from the date of the demise.[14] In the case of more than one owner of the copyright, the copyright remains in their name until the span of 70 years is over, after the death of the last owner. In other cases, if the copyright is registered in the name of a separate legal entity, then the copyright will be effective only for 50 years. [15]

Whereas, In Indian Copyright Law, the economic Right of the artist/ author is protected for a lifetime, but limits till 60 years following the death of the artist/ owner of the copyright. In case of any ownerless, anonymous publication, the work is protected for 60 years, starting from the year following the date of publication. [16]

  1. The new Copyright law of Indonesia doesn’t prescribe any territorial application exclusively in regards to the protection of foreign works/ website infringement.[17] On the other side, the Indian Copyright Act, 1957 has a whole different provision for the protection of piracy of work/ content belonging to foreign nations, whose countries are signatory to the same conventions and treaties to which India is also a signatory. Any infringement of foreign copyright is dealt with by the International Copyright order, 1999. [18]


INFRINGEMENT AND REMEDIES

The agency named – DGIP (Directorate General of Intellectual Property) in Indonesia is responsible for dealing with the Intellectual property Rights and Copyright issues. Registration of Copyright is also dealt with by this organization. [19]

India has two agencies i.e. – i) NASSCOM – National Association of Software and Service Companies. ii) NIAPC – National Initiative against Piracy and Counterfeiting. These two organizations are responsible to deal with infringement and recordation issues in India. These agencies work under the Ministry of telecommunication. [20]

COPYRIGHT LAWS IN UK AND INDIA

The Copyright, Designs and Patent Act, 1988 of the UK is the most flexible and top-ranked Copyright Act according to the United States Chamber of Commerce’s 2018 International Intellectual Property Index. [21]

In the UK, Works such as Literary work, musical notations, Dramas, cinematography, and artistic publications have copyright protection until 70 years following the year of death of the copyright owner. In the case of cinematography, films, and movies, the copyright is active for 70 years after the last person directly connected to the film’s production/ direction dies. Broadcasts’ copyright is effective for 50 years after the first published broadcast. Editorials published in magazines and periodicals have copyright protection of about 25 years following the year of first publication. [22]

In India, the economic Right of the artist/ author is protected for a lifetime but limits up to 60 years following the death of the artist/ owner of the copyright. In case of any ownerless, anonymous publication, cinematographic films, sound recordings, etc. the work is protected for 60 years, starting from the year following the date of publication. [23]


CONVENTIONS AND TREATIES SANCTIONED

UK is a signatory to the Berne Convention, Rome Convention, WIPO, WIPO Copyright treaty, Agreement of trade-related aspects of Intellectual Property Rights (TRIPS).

Berne convention is for Protection the copyright of Literary and artistic works.

Rome Convention is for the protection of copyright of artists, choreographers, performers, producers and directors, and broadcasting organizations.

World Intellectual property rights Organisation (WIPO) protects all the rights which come under intellectual rights and copyright. [24]

The signatory members of these conventions are automatically protected by each signatory country. On the other side, India is a signatory to the Berne Convention, Rome convention, Universal copyright Convention, Geneva Convention for the protection of Rights of procedures of Phonograms, WIPO, and UNESCO. [25]

The agencies responsible for Copyright licensing and infringement in the UK is Copyright Licensing Agency (CLA)[26] whereas, In India, NASSCOM and NIAPC are responsible for taking care of Copyright recordation, licensing, and infringement.

[1] The Copyright (Amendment) Act, 2012, No. 27, Acts of Parliament, 2012 (India). [2] Circular 92 Copyright Law of the United States and Related Laws Contained in Title 17 of the United States Code, https://www.copyright.gov/title17/title17.pdf. [3] Supra note 5. [4] [1972] 2 WLR 389. [5] 47 F. Supp. 1013 (S.D. Cal. 1942). [6] 1978 AIR 1613. [7] SARAH YUNIARNI, Indonesia Improves Ranking on Global Intellectual Property Index, Jakarta Globe, (July 2, 2020, 8:59 P.M), https://jakartaglobe.id/business/indonesia-improves-ranking-on-global-intellectual-property-index/. [8] 2019 | INTERNATIONAL PROPERTY RIGHTS INDEX INDONESIA, Property Rights Alliance, (July 2, 2020, 9:20 P.M.), https://www.internationalpropertyrightsindex.org/country/indonesia. [9] 2019 | INTERNATIONAL PROPERTY RIGHTS INDEX INDIA, Property Rights Alliance, (July 2, 2020, 9:40 P.M), https://www.internationalpropertyrightsindex.org/country/india. [10] Assegaf Hamzah & Partners, Copyright In Indonesia, Lexology, (July2, 2020,10:03 P.M.) https://www.lexology.com/library/detail.aspx?g=ce772922-2dd2-4f4c-ba6e-2edc7d138c24. [11] Ibid. [12] Vijay Pal Dalmia, India: Copyright Law In India- Everything You Must Know, Mondaq, (July 2, 2020, 11:12 P.M.) https://www.mondaq.com/india/copyright/655852/copyright-law-in-india-everything-you-must-know. [13] Ibid. [14] Copyright Laws in Indonesia, PAUL HYPE PAGE & CO. (July3nd,2020,12.16A.M.) https://www.paulhypepage.co.id/copyright-laws-in-indonesia/. [15] Supra Note 4. [16] Copyright Law in India, Legal services, (July 3rd, 2020, 1:16 A.M.) http://www.legalserviceindia.com/article/l195-Copyright-Law-in India.html#:~:text=Under%20section%2013%20of%20the,the%20Act%20as%20literary%20works. [17] Supra Note 4. [18] Supra Note 6. [19] Supra Note 8. [20] Supra Note 10. [21] Supra Note 1. [22] Myths of international copyright law, Comparing UK and US copyright protection, (July 3, 2020, 1:15 P.M.) https://lac-group.com/blog/comparing-uk-and-us-copyright-protection/. [23] Supra note 10. [24]Protecting your copyright abroad, Intellectual property office, (July 3rd, 2020, 2:09 P.M.) https://www.gov.uk/government/publications/protecting-your-uk-intellectual-property-abroad/protecting-your-copyright-abroad#:~:text=The%20UK%20is%20a%20member,of%20Phonograms%20and%20Broadcasting%20Organisations [25] Copyright Laws in India, S. S. Rana & Co, (July 3rd, 2020, 2.32 P.M.) https://www.ssrana.in/ip-laws/copyright-law-india/#:~:text=India%20is%20a%20member%20of,Treaty%2C%201996%20(WPPT). [26] Copyright Licensing Agency license, (July 3, 2020, 2.40 P.M.) https://www.gov.uk/copyright-licensing-agency-licence.


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