An understanding of copyright law is a necessity for any startup today. Copyright protection is not useful only for book authors, musicians or film producers. It is relevant for every business, be it small or huge, if it has its own website, or a blog, software, unique user interfaces, product manuals, sales pages, sales pitch, catalogue or any other marketing material. Basically, if your company is generating images, code, videos and text for various activities of the company, it is likely that you need to protect the same from pirates and competitors. Copyright law is the only tool you have – which gives you the right to prevent others from copying your work in certain circumstances. Intellectual property is often so crucial to the business model of a company, that ability to effectively protect it often accounts for doing or breaking the business.
Copyright is relevant not only for entrepreneurs, but also for employees and freelancers – content marketers, social media marketers, photographers, bloggers, freelancers and a whole lot of other service providers. An understanding of copyright law can enable you to more effectively commercialize content generated or owned by you and prevent others from unfairly benefiting from your work. You will also need to know what actions you can take if you find out that another entity is wrongfully exploiting your work.
The Indian Copyright Act, 1957 grants copyright protection to five types of works (listed below). The discussion below explains how each type of work may be relevant to an early stage business (provided that the content is copyrightable):
i) Literary works – A literary work is not necessarily a piece of literature – a story, essay or novel. Brochures, manuals, blog posts and articles, content of a website and any other marketing material will also qualify as literary works. In fact, works which would not sound literary to a common man, such as software, computer programs, diagrams, tables, compilations and computer databases, a set of logarithmic tables or an income tax return compilation are considered literary works within the meaning of copyright law.
ii) Artistic works – Paintings, drawings and photographs are protected under this category. Any original photographs, images (whether they are created in physical form or on a computer) can be protected under this category. This would cover layouts, package designs, logo and sometimes even user interface, layout or design of software or website.
An infographic could be protected under both artistic and literary categories (depending on the kind of content and imagery that has been used in the infographic). It may have components of both an artistic work as well as a literary work.
iii) Musical works – musical works must not be confused with sound recordings – music which is described in any form of graphical notation (e.g. sheet music or guitar one tab ) is protected under the ambit of musical works. Words are excluded from the two definitions of a musical work. The tune and instrumental notations are protected under this category. For example, A.R. Rahman’s tune for Airtel (not a performance or sound recording) will be protected as a musical work.
iv) ‘Cinematograph’ films –This is the term used under the Copyright Act for visual recordings. The act protects visual recordings on any medium. Promotional videos, video testimonials, interviews, screencasts will be within the ambit of a cinematographic film.
v) Sound recordings –The act protects sound recordings on any medium. For example, a recording of a song, podcasts, audio books will be covered under this category.
vi) Dramatic works –A piece of recitation, a choreographic work, a play or a script, a skit, scenic arrangement or acting, etc. whose format is fixed on a medium (either by writing or otherwise) will be within the ambit of dramatic work. A cinematographic film has been specifically excluded from the ambit of a dramatic work.
A. Conditions for a work to be copyrightable:
Copyright protects the expression (of an idea), not the idea itself. For example, a politician’s views on democracy may not be different from a pre-existing notion of democracy. However, if he has written or delivered a speech on his views in his own unique words, the speech will be protected under copyright law (provided there is a written or recorded version of it). Note that the same idea can be expressed in many different ways, and each of such expressions is eligible for protection independently under copyright law. As a result of this, another politician can write another speech covering the same issues and ideas, and if his expression of the same is unique, that will be eligible for protection under copyright law as well.
Copyright law will not protect an expression if there is only one way to express a particular idea – this is known as the ‘merger’ doctrine. For example, some mathematical expressions can be expressed only in one or two ways. No one can claim copyright on those expressions.
Copyright law cannot also prevent another person from providing an identical result as other copyrighted material. For example, two software which perform the same function can both be protected by independent copyright if they are written in different computing languages, or in the same language but with different codes. Copyright law only ensures that another person cannot simply lift your code and commercially exploit the same. If they achieve the same functions as your codes by writing codes in a new way, even the new code will be
In order to be copyrightable, a work (in any of the categories listed above) should be ‘original.’ Under copyright law, originality simply implies that the work must be the result of the author’s own skill and labour. The investment of skill and labour by the creator of the work is important, not any rare nature of the work. Evidence of investment of sufficient amount of skill and labour of the creator is sufficient for the existence of copyright, and no particular level of aesthetic appeal, technical achievement or intellect is required. The Supreme Court has recently added the requirement that there should also be a certain ‘minimum amount of creativity.’
Also, if you want to copyright your content or software, the expression or the codes should not be a copy of something that already exists. If it is so, it will be very difficult for you to establish that your work is original.
In cases where there is no effort put in by the author, e.g. where a newspaper article has been merely copy-pasted into a blog (without addition of the background, a different perspective, or making suitable edits to the form of expression), the work will not be copyrightable. Further, there must be some effort in creating the work (in legal parlance, the work must not be ‘de minimis’).
Expression has to be substantial in nature as well. An article or speech consisting of only one paragraph can be copyrighted if the same is original, substantial and reflects the use of skill and labour. However, a slogan such as “Impossible is Nothing” or “Yeh Dil Maange More” is not copyrightable. Such an expression, however, may be trademarked, as a trademark protects the relationship between a unique name/phrase and goods/services.
B. Rights available to a copyright owner:
When you create any content or material that is copyrightable, you automatically acquire copyright over it instantly.
Simply put – a copyright owner has the sole authority to exploit his work from the moment of creation, unless he has himself permitted somebody else to do so. He can prevent others from copying, distributing, or making adaptations of the work. As per the Copyright Act, he has exclusive right to make copies of his work (e.g. by publication of copies of a book distributes the work.), make an adaptation or a cinematograph film out of it (e.g. by converting a book into a movie or an audiobook or translation in another language, converting a blog post into a video tutorial), to perform the work in public or translate it into other languages. The owner may exploit it himself or authorize another person to do it by licensing or assigning the copyright.
(See Section 14 of the Indian Copyright Act, 1957)
In addition to the rights of commercial exploitation, authors also have certain special rights under Section 57 of the Copyright Act. They have the right to claim authorship of the work, and to prevent any distortion, mutilation or modification of the work (alterations) (during the term of the copyright) which adversely affects the author’s reputation. The author can claim damages or restrain another entity from making Alterations.
C. Term of copyright:
The term of copyright for a published work is as follows:
Type of work Duration of copyright Literary, dramatic, musical, artistic work, photographs
60 years after the death of the author.
The period is counted from the beginning of the next calendar year after the year of death of the individual creator. For example, if a work is published on 12 June 2007, and the author died on 25 May 2010, the counting of 60 years will commence on 1 January 2011, and the copyright will expire on 31 December 2070.
In the case of a work that has more than one author, the 60-year period will be counted from the year after the death of the author who dies last.
In the case the creator is not an individual but an organisation or entity, copyright subsists for 60 years only.
Sound recording and cinematograph films
Sixty years after publication.
The period is counted from the beginning of the next calendar year after the year of publication.
e.g.: If a sound recording is published on 31 October 2007, counting of the 60-year period will begin on 1 January 2008, and the period will expire at the end of 31 December 2067.