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LEGAL ENVIRONMENT OF BUSINESS COPYRIGHT PROTECTION ON INTERNET (08BS0001781) SECTION-F Contents {text:bookmark-start} INTRODUCTION {text:bookmark-end} {text:bookmark-start} 1. 1 About Intellectual Property [1] {text:bookmark-end} It is not material wants that seek ownership, but the ideas, skills and moral aspirations need equal protection. It refers to creations of the mind: inventions, literary and artistic works, symbols, names, images, and designs used in commerce. Intellectual property is divided into two categories:
Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs, in short the digital or non-digital forms of information.
The World Intellectual Property Organization (WIPO) has been established to promote the use and protection of works of the human spirit. These works – intellectual property – are expanding the bounds of science and technology and enriching the world of the arts. WIPO plays an important role in enhancing the quality and enjoyment of life, as well as creating real wealth for nations. Intellectual Property is one of the most important aspects of the WTO regime and it has far reaching implications.
Agreement of Trade Related Intellectual Property Rights – better known as TRIP’s- to which India is a signatory, is an integral part of WTO and it will have an enormous impact on Indian business and trade partnerships. Accordingly, India has complied its obligations by amending the existing legislation with respect to IPRs. It is a welcome sign to note that, in India, though late, awareness about the intellectual property rights is on the increase. Globalization and the rapid proliferation of technology have elevated the importance of intellectual property protection for small and medium sized enterprises (SMEs).
The intangible nature of intellectual property and the worldwide inconsistency of standard practices create challenges for those businesses wishing to protect their inventions, brands, and business methods in foreign markets. The three most common vehicles for protecting intellectual property are patents, trademarks, and copyrights. In the era of knowledge age or information age, the fundamental unit of most products and services is information — in one or another form. The n-number of websites, virtual enterprises and virtual products, all rest upon the cornerstone of ‘information’: in digital or non-digital form.
In several cases such information is of proprietary nature, i. e. , it has unique value deriving from usage, research, development, design, etc. Hence, the investment in that information product, knowledge product or the virtual product must be protected to encourage other similar initiatives. The initial investment is of critical importance given that replicates of such products could be created with relative ease and without incurring a large expense. How difficult or expensive is it to download a copy of the software program code once it is created?
With increasing worldwide access to electronic distribution, the damage caused by piracy to content producers may completely destroy the value built in their intellectual property. The same context is valid in the case of companies who have earned consumer recognition for their brand names and trademarks. A recognized brand name or trade mark represents the goodwill that has been built into the product or service. Consumers tend to associate the recognized brand name or trade mark with certain characteristics that are specific to that name or mark.
Therefore, companies should manage, protect and safeguard the investment in the related intellectual property rights. Not only this, they should be vigilant if anyone else is misusing or causing infringement of this Intellectual property. That is the crux of the intellectual property rights: to give credit where, and when, it is due. With the emergence of the knowledge society and virtual products, the issue of safeguarding the investment in the information-based products has certainly gained high importance.
We, as consumers or producers in the information chain, cannot afford to be ignorant about the intellectual property rights!! Since centuries, people have tried to safeguard their investment in creations that are somehow unique or provide some unique value. Mughal Emperor Shah Jahan, built Taj Mahal in memory of his beloved queen. Folklore goes that the emperor instructed his soldiers to chop off the hands of the craftsmen so that they could never create another monument like Taj Mahal.
Here too, the creation of the product was based upon the innate knowledge or skills of human beings, specifically handcrafted. Thus protection of IPR has definite (tangible) benefits, such as to propagate innovative culture, profitability, market leadership and helps creation of wealth for the individual and the nation. {text:bookmark-start} 1. 2 IPR Awareness [1] {text:bookmark-end} Intellectual property rights (IPRs) give the owners of ideas, inventions, and creative expression the right to exclude others from access to or use of their property for a certain period of time.
International treaties and the laws of the various countries differ significantly in terms of the degree of protection and enforcement available. While India has entered the global patent regime, awareness and expertise on the subject of IPR in India is still highly inadequate. Present skills do not extend towards protecting indigenous inventions or understanding the implications of patents granted to competitors. Further, the ability to read or write patents is grossly lacking when viewed in the context of global practices. Indian industry and businessmen cannot afford to be indifferent to these new requirements.
India’s knowledge-based industries will be looking at filing international patents and their skills in filing, reading and exploring patents will be very crucial in the years to come. Lawyers and Law firms are most useful in assisting various IPR management, protection and infringement of patents in India and abroad. Any attorney may register trademarks or copyrights, or initiate or defend any kind of IP litigation. Yet, because many attorneys are unfamiliar with IP fundamentals, small business owners should seek advice of specialists.
Most people know enough about real estate property, rough cost according to its location. They also know to clear title before making a purchase or commencing construction. However, when it comes to IPR, most of them are ignorant and offer comparatively cheap insurances against the risk. Few people starting businesses have equivalent knowledge of intellectual property. Hence, consulting a lawyer should become a prior necessity. Here, the consultant lawyer steps into the shoes of a doctor, the more open one is about his intellectual property the more ways he can find out for protecting it. text:bookmark-start} 1. 3 Relevance of the Topic [2] [4] {text:bookmark-end} All businesses own or use copyrighted material. Protecting such materials from abuse, misuse and/or piracy may be critical to prevent erosion of a competitive advantage. Yet many companies do not focus on management of copyright assets while planning their competitive strategies. Active management of copyright, along with other intellectual property rights, is essential for all businesses, big or small, as it impacts directly or indirectly on their performance, profitability and competitiveness.
Most businesses, although not directly involved in the copyright area, print brochures or publish advertisements that create and/or use copyright-protected materials. Even shopping malls, bars, nightclubs, hotels, airlines, restaurants and other retail outlets play music – protected by copyright – to attract customers and influence their behavior, entertain employees, and increase turnover and profits. Thus proprietors of these businesses must understand the basics of copyright law as safeguarding copyright and securing the permission of others before using copyrighted material is not only a legal necessity but also good business sense.
Many businesses, especially small ones, do not have a sufficient understanding of the importance and relevance of copyright to their business success or bottom-line. Copyright law provides the basis for enabling authors or creators to legitimately seek and receive remuneration for the use of their original literary or artistic work, enabling them to support themselves from their works. It gives entrepreneurs the opportunity to generate profits to reinvest in tomorrow’s creations and their distribution.
The potential financial reward provides an impetus for creators to produce more works, thus introducing a wider variety of products into the marketplace and enhancing the choices available to consumers. At the same time, products become more affordable, permitting more people than ever before to benefit from, enjoy and be entertained by copyrighted works. Copyright allows the creator or owner of rights to control the use of their copyrighted work in the marketplace by granting them economic and moral rights over the work.
Economic rights accord control over copying or reproduction and other uses, such as rental of computer programs and films; distribution of copies to the public; public performance; recording; broadcasting or transmission by cable; availability on the Internet; and translation, adaptation or modification. Moral rights preserve the link between the author and the work, which includes the right to be named as the author, and the right to object to any distortion, mutilation or other modification that may affect the honor or reputation of the author.
Copyright protects only the form of expression of ideas, not the ideas themselves. The creativity protected by copyright law is in the choice and arrangement of words, musical notes, color and shapes. The literary or artistic merit of a work is not assessed when afforded protection under copyright law. In today’s knowledge-based society, where information is value, intellectual property has an unprecedented political importance and financial worth. Today, over 80% of the value of the top S&P 500 companies comes from intellectual assets rather than physical capital.
Much of this value is found in works of information and creativity transmitted across computer networks, driven by an unprecedented demand for, and access to, information that can be downloaded from the Internet. In a sense, the challenge we face is a surfeit of information, and the publishers’ role becomes ever more important: to commission, review, edit, translate and deliver quality content in a variety of languages and formats so that it is readily accessible to us, as consumers. New technologies, including digital technologies such as the Internet, are diversifying the way in which content is created, and distributed to consumers.
The publishing industry, while continuing to perform the essential role of delivering information to users, is changing to reflect these new economic and cultural conditions. In this digital environment, the opportunities and the risks are both considerable. A variety of business models allow traditional hard copy publishing to function alongside new electronic formats, though all rely upon intellectual property, and copyright and trademark law in particular, to protect content from misuse and sustain the business of publishing.
Copyright, in particular, is of critical importance to the publishing industry, because copyright places value on literary creativity, and on its contribution to our culture. Consumer demand is constantly increasing, seeking diverse product to be delivered across an increasing number of delivery platforms and devices. Effective copyright protection enables publishers to recoup investment in new works, and to explore new products and channels such as podcasts, and mobile content services.
These new media are supported by electronic rights management systems and technological protection measures, mandated by the two WIPO ‘Internet Treaties’: the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT), both concluded in 1996. One of the most serious challenges the publishing industry faces today is that of copyright infringement, or piracy. Piracy takes on a new dimension in the digital environment, where millions of copies of published works can be copied without authorization and distributed to more than a billion online users, globally, and with the simple click of a mouse.
The ease of copying, the difficulty in detection, and the scale of reproduction and dissemination of infringing copies, poses significant problems to the publishing industry and the intellectual property community as a whole. The high rate of piracy in developing countries also suggests a reliance on infringing product from other countries, which inhibits the use of local cultural assets, and the growth of local creativity and industry. The problem of piracy is a serious impediment to the growth of publishing in developing countries.
Conversely, access to publishing encourages production of local content, which helps to preserve local customs, traditions and cultures. By giving such cultural voices expression, publishing makes local content available to the global public, and thereby helps to bridge the digital divide. Linguistic and cultural diversity is essential to a vibrant global society, and mitigates against the forces of globalization, which tend towards a homogenized global culture. {text:bookmark-start} 1. Current Developments {text:bookmark-end} China has always adopted a responsible attitude to actively promoting IPR protection. While adhering to the international rules on IPR protection, China has decided on a level of IPR protection appropriate for its own national situation, and made great efforts to balance the interests among intellectual property creators, users and the general public, so as to create a benign circle for the creation and use of intellectual property.
Major progress has been made on IPR protection in China over the past years. A relatively complete system of laws and regulations that covers a wide range of subjects and is in line with generally accepted international rules has been established and keeps improving. Since the 1980s, the state has promulgated and put into effect a number of laws and regulations covering the major contents in IPR protection. A coordinated and efficient work system and a law enforcement mechanism have been established and improved.
In its practice of IPR protection, a two-way parallel protection mode, namely, administrative and judicial protection, has emerged in China. Several departments in China are assigned with the duty to protect IPR. They include primarily the State Intellectual Property Office, State Administration for Industry and Commerce, Press and Publication General Administration, State Copyright Bureau, Ministry of Culture, Ministry of Agriculture, State Forestry Administration, Ministry of Public Security, General Administration of Customs, Supreme People’s Court and Supreme People’s Procuratorate.
To further strengthen IPR protection, in 2004 China established the State IPR Protection Work Team headed by a vice-premier of the State Council, responsible for planning and coordinating the work regarding IPR protection throughout the country. Its office, located in the Ministry of Commerce, handles the routine work of the team. In recent years, the state has increased work contacts between administrative law enforcement organs and public security organs and people’s procuratorates with respect to IPR protection.
In October 2000, the relevant departments jointly issued the “Notice on Strengthening Cooperation and Coordination in the Work of Investigating and Dealing with Criminal Cases that Infringe Intellectual Property Rights,” which contains clear provisions on relevant issues. In July 2001, the State Council promulgated the “Regulations on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Organs,” which includes clear provisions on how the administrative law enforcement organs should transfer suspected criminal cases to public security organs in a timely fashion.
In March 2004, the relevant departments jointly issued the “Opinions on Increasing Work Contacts between Administrative Law Enforcement Organs and Public Security Organs and People’s Procuratorates. ” A work mechanism involving the coordination of administrative law enforcement and criminal law enforcement has been established, creating a joint power to deal with IPR infringements. Efforts are being made to heighten the awareness of the general public about IPR. The Chinese government attaches great importance to publicity concerning IPR.
Beginning in 2004, the state designated the week from April 20 to 26 every year as the “week for publicizing the importance of IPR protection. ” By making wide use of newspapers, magazines, television, radio and the Internet, and through holding seminars and knowledge contests, and making public interest advertisements, the government carries out publicity and education among the general public regarding IPR protection. The aim is to create a social atmosphere in which labor, knowledge, talent and creation are respected, and heighten the awareness of the general public regarding IPR.
China’s legal system for copyright protection was gradually established in the 1990s, with the implementation of the “Copyright Law” as a hallmark in this process. In recent years, China has made revisions to the “Copyright Law. ” It has also promulgated a number of regulations with legal effect, such as “Regulations on the Protection of Computer Software,” “Regulations for the Implementation of the Copyright Law,” “Procedures for the Implementation of Administrative Sanctions Concerning Copyright,” and “Regulations on the Collective Management of Copyright. The promulgation and implementation of these legal documents have laid a solid legal foundation for copyright protection. At present, China has formed a three-level copyright administrative management system: the State Copyright Bureau, copyright bureaus at the provincial level and the prefectural (city) level. Governments of various provinces, autonomous regions and municipalities directly under the central government have constantly consolidated their copyright administrative management departments and made improvements to the system of copyright administrative management and law enforcement.
In recent years, China’s copyright administrative management departments at all levels have strengthened their administrative enforcement of the copyright law. They have increased cooperation with other government departments, such as the departments of public security, industry and commerce, the customs, press and publications, and cultural departments. As a result, a mechanism of law enforcement whereby different departments are coordinated in combating copyright infringement and piracy has gradually taken shape.
The copyright administrative management departments have always maintained the pressure on copyright infringement and piracy. They have launched several campaigns to crack down on pirated discs, textbooks, reference books, software, illegal duplication and selling of audio-video products, selling of smuggled audio-video products and Internet infringement practices. Positive achievements have been made. According to incomplete statistics, from 1995 to 2004, copyright administrative management departments at all levels confiscated 350 million pirated copies, accepted 51,368 cases of infringement and resolved 49,983 of them.
In 2004, they accepted 9,691 cases of infringement, resolved 9,497 of them and imposed administrative sanctions on the infringers in 7,986 cases. These included the investigation and punishment of two Chinese enterprises that had infringed upon the copyright of the Microsoft Corporation of the United States and other major cases. While establishing and improving its copyright legal system and strengthening its copyright administrative management, China also attaches great importance to the establishment of a copyright public service system.
At present, China has established a copyright public management and service system consisting of copyright collective management organs, copyright agencies, copyright protection associations, professional associations and organizations of copyright holders. In 1988, the Copyright Agency of China was established. In 1990, the Copyright Research Society of China was established and its name was changed to Copyright Society of China in 2002. In 1993 the China Copyright Society of Works of Music was established. And in 1998, the Copyright Protection Center of China was established.
At present, writers’ associations, such as China Federation of Literary and Art Circles, China Writers’ Association and China Film Association as well as professional associations of book publishers, producers of audio-video products and software developers have established their own copyright protection organizations. Copyright societies have been established in more than 20 provinces (autonomous regions, municipalities directly under the central government) and some major cities. Preparatory work is under way to establish China’s collective copyright management organizations of works of the written language and of audio-video products.
The increasing use of Information Technology (IT), however, brings with it new challenges and threats. Amongst the most significant is the security threat, including data theft, piracy, hacking, identity theft, violation of intellectual property rights, etc. Given the commercial importance and potential of IT in India, there is a need for special efforts to fight such illegal activities. In order to keep the legal regime abreast with this change in the society, the Indian Parliament went about legislating the Information Technology Act, 2000. Grey Areas
For the effective regulation of a phenomenon, the legal regime for it must be abreast with the latest developments taking place in that field, which becomes difficult in the case of Information Technology as it has an accelerated pace of development and hence the statute requires constant updating. Some grey areas in the Act which need special attention are: • The Act extends the application of its penal provisions to persons outside India, irrespective of their nationality if the offence under the Act relates to a computer located in India. Such extra-territorial jurisdiction is fraught with limitations as to its enforcement. The jurisdiction of a particular country over online transactions, which involves more than one jurisdiction, has been left open. This can lead to a conflict of jurisdictions. • The Act fails to address the issue of cross-border taxation that may arise in international contracts. • The Act does not address the issue of protection of intellectual property on the internet. • The Act does not deal with privacy and data protection issues on the internet. • The Act fails to cover cyber laundering of money, spamming, phishing, cyber stalking, cyber squatting and other innovative cybercrimes. The Act does not clarify the situation regarding the liability of network service providers. The issues relating to intellectual property rights on internet, spamming, cyber squatting, cyber stalking, credit card frauds, data protection and privacy on the net need to be addressed. Following the footsteps of United States and EU which have adopted specific legislations for data protection and privacy, India Government is also in the process of formulating laws to tighten its legal regime over the issues relating to data protection and privacy to bolster its offshore credibility.
The government has taken into account the modern ways of cyber crimes, violation of data protection norms and prepared the Draft Information Technology Amendment Act 2006 addressing issues relating to electronic contracts, breach of confidentiality and privacy, child pornography, e-commerce frauds like Phishing, identity theft, sending offensive mails, in order to bring a comprehensive legislation to protect the rights of the netizens. {text:bookmark-start} 2. RESEARCH METHODOLOGY {text:bookmark-end} {text:bookmark-start} 2. Objective {text:bookmark-end} The objective of this paper is to understand the various policies and laws being applied across the globe to “Protect the Copyright on the Internet”. {text:bookmark-start} 2. 2 Scope {text:bookmark-end} Today, the major source of knowledge is Internet; hence protection of copyright over the Internet is one of the major copyright issues. As Internet is not limited to a single country or a geographical area, establishment of a law for the same becomes complex.
So, the scope of the topic is very vast wherein we need to consider, not the different countries, but the world as a whole. {text:bookmark-start} 2. 3 Research Methodology {text:bookmark-end} The methodology I adopted for this research was: Gained general knowledge on copyright and copyright protection Took individual countries to understand their laws for copyright protection Searched, how has Internet changed the traditional copyright scenario How has India took up this issue, the India’s Copyright Act Looked in for some cases on the issue text:bookmark-start} 3. LEGAL POSITION IN INDIA [11] [12] [13] {text:bookmark-end} The current Indian Copyright Act entered into force in 1957 but it is based on the 1911 Copyright Act, which in turn was based on United Kingdom copyright laws. Traditional international copyright principles are part of the Indian copyright legislation. For instance, India grants automatic copyright protection (no registration is required) to literary, dramatic, musical and artistic works, computer software, and cinematograph films and sound recordings for sixty years- some term variations apply.
Even though copyrights are automatic, authors may register their works in the Copyrights Register maintained by the Copyright Office of the Department of Education. Ideas are not protected under Indian copyright law nor are titles or names, short word combinations, slogans, short phrases, methods, news, and plots or factual information. To receive protection, works must be original; the joint authorship concept is recognized; and copyrights may be assigned for 5 year if no other time-limit is set.
Usually, the author is the owner of the copyrighted work; the government is considered the author of government works. An author is the creator, composer, producer, or photographer -depending on the case, – of the work. In the case of employment-related works under contract of service or apprenticeships, the employer will be the copyright owner unless otherwise provided. Translations are afforded copyright protection just as the original work provided that they are authorized by the author of the original work.
Computer programs are protected under Indian law as literary works, and their authors enjoy the right to sell, offer to sell, or give on hire “regardless of whether such a copy has been sold or given on hire on earlier occasion. ” As opposed to the U. S. , India grants protection of moral rights. This means, infringement exists when a copyrighted work is distorted, mutilated, modified and these or similar acts affect the author’s honor or reputation. Moral rights remain with the author even after the author’s death or assignment of the work.
India is signatory to the following international copyright agreements- this means U. S. citizens enjoy the rights and privileges afforded by these international agreements adopted by the Indian legislature,- (a) the Berne Convention for the Protection of Literary and Artistic works; (b) the Universal Copyright Convention; (c) the Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms; (d) Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties; and (e) the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement.
On 4th June, 1957, an Act to amend and consolidate the law relating to copyright took place and had to be enacted by Parliament in the Eighth Year of the Republic of India. (1) This Act may be called the Copyright Act, 1957. (2) It extends to the whole of India. INDIAN COPYRIGHT ACT, 1957 Copyright Works in which copyright subsists. – (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings; (iii) in the case of 44 [work of architecture] the work is located in India. 3) Copyright shall not subsist- (a) in the case of a literary, dramatic or musical work, not being a computer programme, – (ii) to issue copies of the work to the public not being copies already in circulation; (iii) to perform the work in public, or communicate it to the public; (iv) to make any cinematograph film or sound recording in respect of the work; (v) to make any translation of the work; (vi) to make any adaptation of the work; (b) in the case of a computer programme,- (i) to do any of the acts specified in clause (a); c) in the case of an artistic work,- (ii) to communicate the work to the public; (iii) to issue copies of the work to the public not being copies already in circulation; (iv) to include the work in any cinematograph film; (v) to make any adaptation of the work; (d) In the case of cinematograph film, – (i) to make a copy of the film, including a photograph of any image forming part thereof; (iii) to communicate the film to the public; (e) In the case of sound recording, – (i) to make any other sound recording embodying it; iii) to communicate the sound recording to the public. *When is *copyright infringed. : Copyright in a work shall be deemed to be infringed- (b) when any person- (iii) by way of trade exhibits in public, or The Copyright Act, 1957 prohibits reproduction of the copyrighted work in any material form including the storing of it in any medium by electronic means, by any unauthorized person but is incapacitated to deal with illegal duplication, importation, distribution and sale of pirated music as it becomes difficult to trace the location of information.
Internet technology facilitates the gathering of personal data. But this also brings a possibility of a threat to the privacy of a cyber consumer or netizens. With the boom in online service provider companies in India, misusing of the personal data of a cyber consumer has become a major menace. However, there is no specific legislation to protect the personal data of a person though to a little extent protection may be given under the Copyright Act, 1957.
With US and EU having strict policies relating to privacy and protection of personal data, it becomes very important for India, considering the inflow of foreign investments and other business opportunities, to have specific data protection and privacy laws. The Information Technology Act protects privacy rights only from government action and it’s unclear if such protection can be extended to private actions as well. The absence of data protection and privacy law has also been creating obstacles for Indian companies while dealing with the EU as the data protection directives require a very high level of protection.
India needs to adapt to the changing needs of the time and provide for a comprehensive data protection regime which will not only help in gaining consumer confidence but also increase the amount of business that Indian BPO service providers receive from the EU. {text:bookmark-start} 4. LEGAL POSITION IN UK [10] {text:bookmark-end} “Copyright is an automatic protection over creative work” ‘Creative’ work includes: Literature (i. e. articles, novels, song lyrics) Art (i. e. photographs, logos, paintings, architecture) Music Sound Recordings Films Broadcasts
It should be noted that names, titles or slogans cannot be copyrighted – these would be classed as trademarks and are protected by a separate law (and process). {text:bookmark-start} 5. LEGAL POSITION IN USA [8] {text:bookmark-end} {text:bookmark-start} Section-102: Subject matter of copyright: In general {text:bookmark-end} (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.
Works of authorship include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works. text:bookmark-start} {text:bookmark-end} (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. {text:bookmark-start} Section-104: Subject matter of copyright: National origin {text:bookmark-end} (a) Unpublished Works. — The works specified by sections 102 and 103, while unpublished, are subject to protection under this title without regard to the nationality or domicile of the author. (b) Published Works. The works specified by sections 102 and 103, when published, are subject to protection under this title if — (1) on the date of first publication, one or more of the authors is a national or domiciliary of the United States, or is a national, domiciliary, or sovereign authority of a treaty party, or is a stateless person, wherever that person may be domiciled; or (2) the work is first published in the United States or in a foreign nation that, on the date of first publication, is a treaty party; or (3) the work is a sound recording that was first fixed in a treaty party; or (4) the work is a pictorial, graphic, or sculptural work that is incorporated in a building or other structure, or an architectural work that is embodied in a building and the building or structure is located in the United States or a treaty party; or (5) the work is first published by the United Nations or any of its specialized agencies, or by the Organization of American States; or (6) the work comes within the scope of a Presidential proclamation. Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States or to works that are first published in the United States, copyright protection on substantially the ame basis as that on which the foreign nation extends protection to works of its own nationals and domiciliaries and works first published in that nation, the President may by proclamation extend protection under this title to works of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation, or which was first published in that nation. The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under a proclamation. For purposes of paragraph (2), a work that is published in the United States or a treaty party within 30 days after publication in a foreign nation that is not a treaty party shall be considered to be first published in the United States or such treaty party, as the case may be. (c) Effect of Berne Convention. No right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. Any rights in a work eligible for protection under this title that derive from this title, other Federal or State statutes, or the common law, shall not be expanded or reduced by virtue of, or in reliance upon, the provisions of the Berne Convention, or the adherence of the United States thereto. (d) Effect of Phonograms Treaties. — Notwithstanding the provisions of subsection (b), no works other than sound recordings shall be eligible for protection under this title solely by virtue of the adherence of the United States to the Geneva Phonograms Convention or the WIPO Performances and Phonograms Treaty. text:bookmark-start} Section-106: Exclusive rights in copyrighted works {text:bookmark-end} Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. {text:bookmark-start} Section-302: Duration of copyright: Works created on or after January 1, 1978 {text:bookmark-end} (a) In General. Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death. (b) Joint Works. — In the case of a joint work prepared by two or more authors who did not work for hire, the copyright endures for a term consisting of the life of the last surviving author and 70 years after such last surviving author’s death. (c) Anonymous Works, Pseudonymous Works, and Works Made for Hire. — In the case of an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication, or a term of 120 years from the year of its creation, whichever expires first.
If, before the end of such term, the identity of one or more of the authors of an anonymous or pseudonymous work is revealed in the records of a registration made for that work under subsections (a) or (d) of section 408, or in the records provided by this subsection, the copyright in the work endures for the term specified by subsection (a) or (b), based on the life of the author or authors whose identity has been revealed. Any person having an interest in the copyright in an anonymous or pseudonymous work may at any time record, in records to be maintained by the Copyright Office for that purpose, a statement identifying one or more authors of the work; the statement shall also identify the person filing it, the nature of that person’s interest, the source of the information recorded, and the particular work affected, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. (d) Records Relating to Death of Authors. Any person having an interest in a copyright may at any time record in the Copyright Office a statement of the date of death of the author of the copyrighted work, or a statement that the author is still living on a particular date. The statement shall identify the person filing it, the nature of that person’s interest, and the source of the information recorded, and shall comply in form and content with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall maintain current records of information relating to the death of authors of copyrighted works, based on such recorded statements and, to the extent the Register considers practicable, on data contained in any of the records of the Copyright Office or in other reference sources. (e) Presumption as to Author’s Death. After a period of 95 years from the year of first publication of a work, or a period of 120 years from the year of its creation, whichever expires first, any person who obtains from the Copyright Office a certified report that the records provided by subsection (d) disclose nothing to indicate that the author of the work is living, or died less than 70 years before, is entitled to the benefit of a presumption that the author has been dead for at least 70 years. Reliance in good faith upon this presumption shall be a complete defense to any action for infringement under this title. {text:bookmark-start} Section-303: Duration of copyright: Works created but not published or copyrighted before January 1, 1978 {text:bookmark-end} (a) Copyright in a work created before January 1, 1978, but not theretofore in the public domain or copyrighted, subsists from January 1, 1978, and endures for the term provided by section 302.
In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047. (b) The distribution before January 1, 1978, of a phonorecord shall not for any purpose constitute a publication of the musical work embodied therein. {text:bookmark-start} Section-305: Duration of copyright: Terminal date {text:bookmark-end} All terms of copyright provided by sections 302 through 304 run to the end of the calendar year in which they would otherwise expire. {text:bookmark-start} Section-1201: Circumvention of copyright protection systems {text:bookmark-end} (a) Violations Regarding Circumvention of Technological Measures. (1) (A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter. (B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C). C) During the 2-year period described in subparagraph (A), and during each succeeding 3-year period, the Librarian of Congress, upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding for purposes of subparagraph (B) of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition under subparagraph (A) in their ability to make noninfringing uses under this title of a particular class of copyrighted works. In conducting such rulemaking, the Librarian shall examine — (i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate. A) is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title; (B) has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title; (C) is marketed by that person or another acting in concert with that person with that person’s knowledge for use in circumventing a technological measure that effectively controls access to a work protected under this title. {text:bookmark-start} Section-1202: Integrity of copyright management information {text:bookmark-end} (a) False Copyright Management Information. — No person shall knowingly and with the intent to induce, enable, facilitate, or conceal infringement — (1) provide copyright management information that is false, or (2) distribute or import for distribution copyright management information that is false. (b) Removal or Alteration of Copyright Management Information. No person shall, without the authority of the copyright owner or the law — (1) intentionally remove or alter any copyright management information, (2) distribute or import for distribution copyright management information knowing that the copyright management information has been removed or altered without authority of the copyright owner or the law, or {text:bookmark-start} 6. LEGAL POSITION IN OTHER COUNTRIES {text:bookmark-end} {text:bookmark-start} 6. 1 Japan [5] {text:bookmark-end} The protection of copyright (copyright (author’s right) and neighboring rights) is a part of the responsibility of the cultural authorities of the Government of Japan i. e. the Japan Copyright Office (JCO) of the Agency for Cultural Affairs (ACA), which is a part of the Ministry of Education, Culture, Sports, Science and Technology (MEXT). The diagram below shows the structure of the governmental organizations related to copyright. {draw:frame}
The JCO has been carrying out a wide range of copyright policies such as the planning of copyright legislations, the improvement of right clearance systems, the planning of new policies to cope with the development of digitization and network, supervision over collective societies, educational activities for experts and the general public, participation in international norm-setting, cooperation programs for developing countries, countermeasures against piracy, etc. Important policies are planned based on discussions and reports of the Subdivision on Copyrights of the Council for Cultural Affairs which is an advisory committee for the Commissioner of the ACA.
This Council is composed of some members (representatives of right holders and users, researchers, experts, lawyers, etc. ) and has been functioning as the major mechanism to mobilize expertise of specialists as well as to harmonize various viewpoints and interests of stakeholders. Japan acceded to the Berne Convention in 1899. As a new set of provisions was required to comply with the Berne Convention, the Copyright Ordinance was changed as a whole into the Copyright Law in 1899. This Copyright Law of 1899 (the old Copyright Law) is referred to as the first modern copyright law of Japan consistent with the international standard of copyright protection.
The major characteristics of the the draft law was submitted to and approved by the Diet in 1970, and subsequently, the new Copyright Law was enacted in the beginning of 1971. The JCO, which is in charge of copyright issues and procedures, has designated strategic fields for developing a comprehensive copyright policy: (1) streamlining laws and regulations, (2) developing smooth distribution systems, (3) dealing with international issues, (4) reinforcing education on intellectual property. The following diagram shows the structure of rights in the Japanese Copyright Law. {draw:frame} The Copyright Law exemplifies works to be protected as follows. {draw:frame} {text:bookmark-start} 6. China [6] [7] {text:bookmark-end} Given the fact that in China most websites do not have a formal privacy policy, how do Internet users expect the Chinese legal framework to protect their personal privacy? As noted by the State Intellectual Property Office (SIPO), “in 2007, departments of copyright administration of all levels over the country inspected 548,646 business units, banned 13,170 illegal business units, uncovered 1,224 hidden illegal units, imposed 9,816 administrative penalties, and transferred 268 cases to the judicial authorities. ” There are over twice as many cases of administrative enforcement through the NCA and the PCDs as there are adjudications through the court system.
Administration of copyrights in China is a much complicated and less homogeneous situation. In China, copyright is managed in a much decentralized manner through not only the NCA, but also through PCDs, with the exception of software copyrights, which must be registered with the NCA. Additional protection of copyright to audio-visual works online in China can be obtained through the State Administration of Radio, Film and Television (SARFT), as evidenced by its recent “takedown” of numerous allegedly infringing online video websites. The statutory authority for such actions is based upon the Administration of the Broadcasting of the Audio-Visual Programs on the Internet and other Information Networks. As ith the takedown notices of the DMCA, the Copyright Procedures in China provides similar protection to copyright owners and a “Safe Harbor” from liability for websites which were previously unaware of the infringing activities. Though there have been calls from the Copyright Union of the Internet Society of China to “streamline” the “takedown” process of the Chinese Copyright Administration, the overall administrative protection available to online copyright holders in China has been greatly improved and provides a viable option for copyright protection on the Internet. Notice and counter-notice According to the Measures, when a copyright owner notifies the Internet service provider (ISP) that its copyrights have been violated, the ISP is required to take measures to remove relevant copied content.
ISPs that is aware of copyright violations but don’t remove the violating content will face punishment themselves. All income from the illegal act will be confiscated, and a fine of up to three times the illegal income will be assessed. If it is hard to calculate the illegal income, the maximum fine will be 100,000 RMB. The notice of the copyright owner shall include all of the following: (1) The certificate of copyright ownership; (2) A clear identification document, address and contact details; (3) The online location of the allegedly infringing content; (4) The relevant evidence of copyright infringement; and (5) A declaration of truthfulness concerning the content of the notice. {draw:frame} “Double-track” system for Copyright Protection
When an infringement takes place, the copyright holder may choose to lodge a petition with the administrative department in charge of copyright matters, or initiate legal proceedings with the court where the infringement takes place – a practice generally termed “double-track protection”, which are workable for trademark and patent infringement with minor procedural modifications. Copyright infringement remedies over the Internet are no exception and should be considered within this larger double track picture. The administrative remedy is particularly noteworthy in China as it works faster and more efficiently, and generally more cost-saving. Infringing Acts Article 47 of the Copyright Law and Article 24 of Regulations on Computer Software Protection enumerated the infringing acts that are to be handled by administrative authorities. All acts that may carry administrative liabilities should be those infringing acts that “prejudice the public interests”.
According to the Copyright Law and other regulations, the power to exercise administrative law-enforcement shall rest with the National Copyright Administration and “relevant departments in charge of copyright law enforcement at local governments”. Aside from civil liabilities, a copyright infringer may face the following administrative liabilities once found punishable by the government: Where such act also prejudices the public interest, the copyright administration department may order the infringing party to Cease infringements, Confiscate illegal income, Confiscate or destroy the infringing copies, and 4. May impose a fine concurrently; 5.
Confiscate the material, tools and equipment mainly used to produce infringing copies, where the circumstances are serious Criminal liabilities: Civil liabilities include ceasing infringements, eliminating ill effects, making an apology, or compensating for losses. If the one violates the Criminal Law, he shall be prosecuted for criminal liability of infringing upon copyright or selling infringing copies in accordance with the provisions of the Criminal Law_. _ {draw:frame} China Internet Copyright Union The establishment of the union, along with the newly promulgated measures, has shown the determination of both Chinese government and Chinese companies to eliminate internet copyright piracy. text:bookmark-start} 6. 3 Australia [3] {text:bookmark-end} In Australia, copyright law is set out in the Copyright Act 1968 (Cth). In many cases, courts have made decisions on how the Act is to be interpreted and applied in various situations. The types of material which can be protected by copyright include: • “literary works” (such as novels, poems and lyrics, reports, instruction manuals, newspaper articles and letters); • “artistic works” (such as drawings, paintings and graphic art, as well as more technical works, such as industrial photographs, buildings, design drawings, maps and plans); • “musical works” (such as notated music); “dramatic works” (such as screenplays and choreography); • “computer programs” (includes both object and source code, including code and programs underlying websites, as well as programs for spreadsheets, word processing and other applications); • “compilations” (such as anthologies, directories and databases); • “cinematographic films” (such as feature films, TV programs and music videos); and • “sound recordings” (such as music or voice recorded on audio cassette, on compact disc or in digital files). Material which fits into these categories can be protected whether it is in hardcopy form, such as in a book, or in digital form, such as on a CD, a file or in an email. Even very simple emails of text might be protected: in one case concerning printed material, the instructions on a seed packet were held to be protected as a literary work. Copyright protection generally lasts for the life of the creator plus 70 years. However, under Australian law, copyright has expired in material created by people who died before 1955, provided it was also published before then.
How to get copyright protection? Copyright protection is automatic; there is no system of registration in Australia. A work doesn’t need to be published, or have the copyright notice on it, to be protected. As soon as something like a literary work or a musical work is written down or recorded in some way it is protected, provided it has resulted from its creator’s skill and effort and is not simply copied from another work. As a result of international treaties such as the Berne Convention, most foreign copyright owners are also protected in Australia, and Australian copyright owners are protected in most other countries. When might you infringe copyright?
Copyright owners have a number of rights, including the right to control the “reproduction” of their material and the right to control the “communication” of that material “to the public”. The right of “communication” is a relatively recent right within the Copyright Act; it subsumes the broadcast and cable diffusion rights which existed in the Act between 1969 and 2001, and ensures that making material available online and transmitting over the internet is within the scope of a copyright owner’s legal rights. Generally, you will infringe copyright if you use copyright material in one of the ways that copyright owners control, without permission, in circumstances to which no exception applies.
For example, you might infringe copyright if you do any of the following: • print material from a website or a bulletin board without express or implied permission; • upload or download a pirated version of a movie or pirated copies of a song or software; • save material from a website or a bulletin board onto your hard drive without express or implied permission; • make material such as songs, software, TV programs or movies in which someone else owns copyright available from your computer over a P2P system or through the use of P2P software; • email material from a website or a bulletin board to other people without express or implied permission. Is everything on the internet in the “public domain”? The term “public domain” is used in a couple of different ways: for material in which all copyright has expired, and for material, such as software, where the copyright owner gives very broad permissions to people to use it. The fact that something is on the internet does not mean that it is “copyright-free” or “in the public domain” in either of these senses. Material in which copyright has expired
On 1 January 2005, the general term of copyright protection changed from being the life of the creator plus 50 years to the life of the creator plus 70 years; protection for material still in copyright on that day was extended by 20 years. Once copyright has expired, the material may, from the copyright perspective, be freely used. Can I copy material from the internet for an assignment? Generally, you may print and/or save material to disk if: • It is for your research or study; and Australian Copyright Council The Australian Copyright Council is a non-profit organization whose objectives are to: • assist creators and other copyright owners to xercise their rights effectively; • raise awareness in the community about the importance of copyright; • identify and research areas of copyright law which are inadequate or unfair; • seek changes to law and practice to enhance the effectiveness and fairness of copyright; • Foster co-operation amongst bodies representing creators and owners of copyright. {text:bookmark-start} 7. ANALYSIS {text:bookmark-end} As Internet has emerged as a knowledge sharing platform, the issue of copyright protection has also become a major concern for the countries worldwide. Today, all the countries have an act in their constitution, entirely dedicated to Intellectual Property and in many cases even to copyright as a separate act.
The IPR awareness is comparatively more among the developed countries than the developing ones. With the increasing use of internet, IPR is becoming more familiar to people. As given in this paper, the countries like US, UK, India, Japan, China and Australia, all have dedicated laws for the copyright protection on Internet. The laws do not change for the offline and online copyrights and their infringement. {text:bookmark-start} 8. SUMMARY {text:bookmark-end} Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs.
Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs, in short the digital or non-digital forms of information. The World Intellectual Property Organization (WIPO) has been established to promote the use and protection of works of the human spirit. With digitalization of data and publishing it over the internet, the issue of copyright protection over the Internet has come to play. While India has entered the global patent regime, awareness and expertise on the subject of IPR in India is still highly inadequate. A copyright do not protect an idea but the form in which it is published.
India is a signatory of many international copyright agreements and it provides protection to the copyrights of 116 countries in the world. In Australia, the Australian Copyright Council takes care of copyright issues. In Japan, its JCO and ACA and in China NCA and PCDs protects the copyrights. {text:bookmark-start} 9. REFERENCES {text:bookmark-end} [1] http://www. legalserviceindia. com/articles/ip. htm (23rd December, 2008) [2] http://www. wipo. int/sme/en/documents/wipo_magazine/01_2003. pdf (23rd December, 2008) [3] www. copyright. org. au/pdf/acc/book_tocs/b093v03toc. pdf (23rd December, 2008) [4] http://www. ipa2008seoul. org/eng/session/S01/01_MichaelKeplinger_PT_. df (23rd Dec) [5] http://www. cric. or. jp/cric_e/csj/csj_main. html (23rd December, 2008) [6] http://english. ipr. gov. cn/ipr/en/info/Article. jsp? a_no=252209&col_no=928&dir=200811 (23rd December, 2008) [7] http://www. teehowe. com/news_detail. php? id=460&language=en (23rd December, 2008) [8] http://www. copyright. gov/title17/ (23rd December, 2008) [10] http://www. bizhelp24. com/business-law/an-overview-of-copyright-protection. html (24th December, 2008) [11] http://www. ibls. com/internet_law_news_portal_view. aspx? s=latestnews&id=2135 (24th December, 2008) [13] http://www. hg. org/article. asp? id=5260 (24th December, 2008)