COPYRIGHT AS A STATUTORY TORT

Author: T. Sreenitya

Copyright is one of the kinds of intellectual property rights granted to an author of an original work. The work can be of any kind, like, art work, literary work, music, drama, software codes, etc. such right allows the author to have sole ownership over the work. The widely accepted definition is that copyright as right the creator have over their literary and artistic works, defined by WIPO. 

The copyright whether registered or unregistered, preserves the creative work of the author and safeguards the work from being exploited or duplicated by the third party. The copyright is granted only for the expression of the idea alone not idea itself.

Copyright has three dimensional rights, namely, economic rights, moral rights and neighbouring rights. These three rights are sometimes recognized individually and sometime regarded as copyright as whole based on their objective behind usage. Economic rights are when author authorizes others to use his work in various ways, like, distribution rights, broadcasting rights, etc. Creators usually commercialize their creations and transfer these rights to professionally equipped persons for its effective utilization. For example, a movie maker may transfer the right to broadcast his film to broadcasting agencies.Moral rights are integral to the creator as under these rights artist requires recognition and respect for the integrity of her work. The author exercising such right might restrict mixing, modification or sharing of her work. Neighbouring rights protect all persons associated with the creation of the work. For example, in a film, the copyright over script is owned by director and producer, copyright of enacting a scene is owned by performers, etc, all these rights come in the ambit of neighbouring rights.

 

Mostly, the author exercises his economic rights over his work via licensing and assignment of the work. Assignment of copyright is an act of assigning all the rights of copyright to assignee in a particular geographical territory in exchange of a particular rate of royalty. Assignee is entitled to all the rights comprised in a copyright, viz., publishing right, broadcasting right, are a few examples. On the other hand, licensing of a copyright is an act of granting permission to do any act with respect to the exclusive rights of the owner. In licensing only part rights are granted unlike in assignment. For example, A is an author of the book titled ‘B’. When A assigns all his rights, viz, publishing rights, broadcasting rights, economic rights, moral rights, neighbouring rights, etc with respect to book ‘B’ to C, it is called an act of assignment. In the same instance, if A licenses publishing rights alone of book ‘B’ to C, this is called licensing of copyright.

 

For easy access of the copyrighted work, people rely on unlawful practices like duplication of work, creation of similar work, utilizing pirated version of the work, etc. This results in the violation of legal right of copyright.

 

• COPYRIGHT AS TORT

Tort is an unlawful conduct resulting in a civil wrong for which remedy is a common law action for unliquidated damages. Copyright is regarded as a tort when such right to copy is unauthorized. Copyright being a tort can also be found through Farser’s definition of tort. He defined tort as an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party. It can be inferred that copyright is an exclusive right against the world granted to the author over her original work.

Kinds of torts attracted against copyright are trespass and strict liability. Trespass usually means an unauthorized entry into one’s land. Likewise, trespass of copyright means an unauthorized usage of copyrighted content by the third party. Strict liability is an act of owner/defendant of the dangerous thing present in the property being responsible in case of harm caused by the dangerous thing to the outsider/plaintiff. There is an exception to the rule that if the outsider/plaintiff himself enters the land without authorization of owner/defendant, then outsider/plaintiff is liable. In the case of copyright, the said exception is the rule, because, when outsider/third party access the copyrighted work without the consent of author of the work, third party is strictly liable irrespective of ill intention or not. In case of strict liability with respect to copyright, the intention to access such work is enough rather that knowing the motive behind accessing such work.

The remedies for these two torts are either receiving adequate compensation for the caused damages and grant of injunction against the wrongdoer. Thus, these two torts lay vague liability over the wrongdoer which might be inadequate to the damages caused to the author of the copyright. Thus, this led to the codification of laws on copyright.

 

• EVOLUTION OF COPYRIGHT LAW

The idea of copyright was existent irrespective of wrongs committed against copyright. The author of the copyright was entitled to royalty only on the first copy of his work and lacked exclusive rights over all the copies of his books. This was due to practice of rewriting the existent literary work by scribes and incapability of regulating individual scribes in the absence of printing technology during pre-industrialization. With the invention of printing press in the era of industrialization led to production of several exact copies of one literary work. Thus, post-printing technology era made easy governing copyright than pre-printing technology era.

The advent of printing press led to draft of legislation in England governing copyrights was the Copyright Act, 1709 known as “Statute of Anne”. However, laws governing copyrights were only restricted to their countries boundaries or maximum to their colonial countries boundaries. This led to the need for international law on copyrights. 

 

• COPYRIGHT LAW IN GLOBAL PERSPECTIVE

The world exposition organized in 19th Century in Vienna was one of the prime reasons for drafting a law on copyrights in international perspective. This exposition promoted exchange of knowledge, education and culture. As the copyrights of an author were conferred to their country boundaries, they were afraid to exchange the information which might be exploited by people of other countries without any regard to author’s interest. Thus, such situation led to the drafting of a legal regime that would provide protection for a creative work across countries.

One of the first conventions drafted to protect copyrights across the globe was Berne Convention in that focused on protection of literary and artistic works across countries. This convention enabled worldwide recognition of copyrights. This convention was drafted on the lines of Paris Convention 1883.

Berne Convention held three basic principles. They are:

1. Works that are originated in one of the contracting states to the convention are granted protection in remaining contracting states.
2. Protection to the work created in one of the contracting countries, is granted irrespective of the legal compliance is followed or not.
3. Protection to the created work granted by the convention is life + 50 years is independent of protection granted by the country of origin of work. However, protection granted under convention ceases to exist once the protection of country of origin of the work ceases to exist.

There are 179 signatories including India are signatory to Berne Convention. Thus, the copyright laws legislated in all the signatory countries are based on the principles of Berne convention, which leads to uniformity of copyright law across countries.

For better administration of both Paris Convention and Berne Convention, United International Bureau for the Protection of Intellectual Property (BIPRI) was constituted in 1893. In 1970, BIPRI turned into World Intellectual property Organisation (WIPO). Later, WIPO became part of United Nations Organisation (UNO).

 

• COPYRIGHT LAW IN INDIAN PERSPECTIVE

Copyright law was initially implemented by the British called Copyright Act, 1874 which was an imitation of English law “Statute of Anne”, 1710. This Act was restricted only to literary works. The then British government had power to grant copyright protection to the creator and also had power to grant publishing license after the death of author. All suits related to infringement of copyright came under the jurisdiction of the highest local civil court. 

With English signing the Berne convention, they implemented modern Copyright Act, 1914 which was similar to English Law, 1911. This Act was inclusive of both art and literary work.

Post-Independence, independent India passed the Copyright Act, 1957 replacing 1914 Act. This Act focused on regulating copyright disputes by providing provision for Copyright Board to resolve the issues.

The present Act under S. 13 protects all original works that fall under the category of literature, drama, music, art, cinematography and sound recordings.

This Act only guarantees economical rights and moral rights. Under S.14 of the Act, economic rights include right to reproduce, right to issue copies, right to perform in public, right to make cinematography and sound recording, right to make translation, right to adaptation, right to sell, rent, and offer for sale of the copyrighted work. On the other hand, moral rights are granted under S.57 of the to creator because inventive work reflects the temperament of the creator based on the Article six of Berne Convention. Moral rights include right to paternity and right to integrity.

When the previously discussed tort on copyright is codified, it turns into a statutory wrong or statutory tort. These torts committed against a right in rem fall under the category of infringement. Any tort, i.e., trespass or strict liability, is called infringement as a whole. Infringement against copyright is regulated under S.51 of the Act.

S.51 describes infringement of copyright as when any person without license granted by the author of the copyright or in contravention to the terms of the license –

1. Sells or rents the copyrighted work
2. Distributes copyrighted work for the sake of profit or to intentionally violate the right of the copyright owner
3.  Trades copyrighted work publicly
4. Import the copyrighted work

amounts to copyright infringement.

However, there is an exception for infringement of the copyright. Under S.52 of the Act, that discusses about fair dealing. Fair dealing is a statutory limitation on the exclusive right of the copyright owner which permits usage of copyrighted work for the sake of personal use, like, research, to review or criticize, to report current events, to reproduce a judicial proceeding, to reproduce for publication of work prepared by legislature, to read and recite a literary or dramatic work in public domain, for educational purposes, etc.

Though copyright law updates itself, it is one of the dynamic laws that require amendment in regular intervals based on the changing environment.

 

• PRESENT DEVELOPMENTS

The law develops based on various judicial pronouncements. Following are a few for the sake of better understanding.

1. 1. Designers Guild Ltd v. Russell Williams (Textiles) Ltd ([2000] 1 W.L.R. 2416) –  The plaintiff’s employee created an original design for a dress fabric. The design consisted of vertical stripes, with flowers and leaves scattered between the stripes, all painted in an impressionistic style. The plaintiff successfully marketed the fabric. The defendant, having seen the plaintiff’s fabric, then produced a very similar design for its fabric and claimed that it had copied merely the “idea” of A’s design, not its “expression”. The plaintiff successfully sued for copyright infringement.
   2. The University of Oxford vs. Rameshwari photocopy services (CS (OS) 2439 of 2012) – Photocopy shops copy reading material from prescribed textbooks and sell it to students at subsidized rates.The chancellors, masters, and scholars of the University of Oxford filed a case against Rameshwari Photocopy Services, alleging them of copyright infringement under Section 2(o) of the Copyright Act. The court held that Copyright is not a divine right and it is intended to increase the harvest of knowledge, not impede it. Photocopying with the objective of spreading knowledge and fostering education doesn’t constitute copyright infringement.
   3. Disney Enterprises, Inc. and Ors. Vs. Kimcartoon.to and Ors., Delhi High Court, (CS(COMM) 275/2020) – The plaintiffs in this matter constitute companies, which are incorporated in various states of the United States of America, and are involved in the business of creation, production and distribution of motion pictures and cinematograph films. The defendants in this lawsuit include several rogue websites that have provided users with free access to pirated content.The Department of Telecommunications (DoT) and the Ministry of Electronics and Information Technology (MEITY), were also included as co-defendants by the plaintiffs, along with several ISPs (Internet Service Providers).The plaintiffs filed a lawsuit against the defendants for streaming original and copyrighted content created by the plaintiffs, without acquiring any prior authorisation from the plaintiffs. After reviewing the list of the infringing websites, submitted by the plaintiffs, and the content being made available on those websites, the court opined that the defendants were violating the plaintiffs’ copyright, by infringing upon their content.
   4. R.G. Anand vs. Delux Films and Ors., (AIR 1978 SC 1613) – The appellant, R. G. Anand, an architect by profession and also a playwright, dramatist and producer of several stage plays, wrote and produced a play called ‘Hum Hindustani’ in 1953. It ran successfully and was re-staged in 1954, 1955 and in 1956. Aware of the interest of the plaintiff in filming the play in view of its increasing popularity, the second defendant, Mr. Mohan Sehgal, contacted plaintiff. In January, 1955, plaintiff met the second and third defendants and had detailed discussions about the play and its plot and the desirability of filming it. However, after this discussion, the plaintiff received no further communication from the second defendant. In May, 1955, the defendants started to make the film ‘New Delhi’, which, the plaintiff gathered, was based on his play, “Hum Hindustani’. The defendant, however, assured him that it was not so. In September, 1956, the movie was released and after viewing it, the plaintiff filed a suit for infringement of his copyright in his play ‘Hum Hindustani’. His claims included damages, account of profits and a permanent injunction against the defendants restraining them from exhibiting the movie. The plaintiff could not prove that the defendant had committed a colorable imitation of his play. Where similarities between the copyrighted work and the copy are so many and the similarities between the two works are not coincidental, a reasonable inference of colorable imitation can be drawn. The court held that a case for infringement may be made out only when such infringement may be identifiable by a reasonable man; and, in this case, the court observed, that no prudent person could get an impression that the film appears to be a copy of the original play. The Supreme Court did not find any violation of copyright and dismissed the appeal. The fundamental principles established in the case with regard to infringement of copyright in case of substantial similarity still hold good.
   5. M/s. Indian Record Manufacturing Co. Ltd. Vs. Agi Music Sdn Bhd, Illaiyaraja and M/s.Unisys Info Solutions Private Ltd., Madras High Court, (C.S.No.296 of 2016 & O.A.No.338 of 2010) – The plaintiff in this matter, is a renowned music company engaged in the production, distribution and sales of music albums in various forms. Defendant is a well known music composer, who, over the years has composed music for several South Indian films. The subject matter of this dispute, refers to the music that defendant had composed for many films produced by the plaintiff, by virtue of which defendant claimed to be the author these musical compositions, and was in the process of selling the copyrights to Agi Music. The plaintiff was also made aware of the same, following which it filed a copyright infringement suit against defendant. The plaintiff claimed that it had acquired the copyright and other rights subsisting in the musical compositions from the respective producers of the films, as they were the first owners of such copyright. The court validated the plaintiff’s copyright ownership claims in the musical compositions, and stated that, since the producers of the film had commissioned the musical works composed by defendant, the producers are the first and rightful owners of such compositions.
   6. Microsoft Corporation and Ors. Vs. Satveer Gaur and Ors., Delhi High Court, (CS (COMM) 1324/2016) – In this matter, Microsoft and Microsoft Corporation Pvt. Ltd., Adobe Systems incorporated and Quest Software Inc., accused the Company named Chetu of infringing their intellectual property rights, by committing copyright piracy, and selling the pirated versions of their software using the same kind of packaging that the plaintiffs would have used, to sell the software products. The court granted the permanent injunction against the Chetu company and other similar companies, along with the monetary compensation deemed necessary by the court.

WAY FORWARD

Copyright law is a dynamic law that is evolved based on circumstances. The Act shall develop itself either through the nature of the cases  in one’s country or through the experiences faced by fellow countries. The Act must quantify the wrong in order to determine the degree of liability to be laid down by the wrongdoer in order to determine the ratio of copyright infringement.