This article has been written by Ms. Samriddhi Vishen, a 2nd year LL.B. student of Shri Jai Narain Misra PG College (KKC), Lucknow.
As we all know, it is crucial to safeguard your literary work from unauthorized access and usage in the present scenario, where the internet is flooded with information and it has become easier to access a variety of works. According to Article 2 of the Berne Convention, the expression ‘literary and artistic works’ shall include “every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression.” It is the copyright that prevents users from gaining unlawful access and rewards the authors’ original work by safeguarding it at every level. Likewise, the Copyright Act also protects literary works. This article examines the key legal principles that influence the copyright practice globally, mainly in the context of literary works.
Is there any International Copyright Law?
A type of intellectual property, a copyright typically, grants its owner the exclusive right to distribute, adapt, copy, exhibit, and perform a creative work for a certain period of time. However, there is no international copyright law.
Every nation has domestic copyright laws that govern its residents as well as the usage of foreign content when done so within that nation. The procedure for providing protection to foreign copyright holders has, however, been made significantly simpler by a number of international copyright treaties and conventions. As a result, content producers and owners from many nations can now enjoy worldwide exclusivity rights for their creations.
When does an International Copyright Issue Arise?
Many concerns that were once domestic copyright issues have now become worldwide copyright issues as a result of the internet and the ways in which we use, distribute, and publish content in our digital environment. A multitude of circumstances can give rise to a global copyright issue. Some instances where copyright infringement in literary work can occur internationally include:
- An author and a publisher based abroad are negotiating a digital licence.
- Through Sharepoint, two coworkers share research articles written by authors from several nations.
- One publishes a literary work on a website or internet that people from other countries can access.
- Joining a journal club allows librarians from various nations (for instance South Africa, Australia, Canada, and the U.S.) to share articles with one another by posting them to a private online space.
Rights Protected by Copyright
A copyright mainly protects two types of rights- economic and moral. The right owners can derive financial reward from the use of their works by others because of their economic rights. The authors and creators can take certain actions to preserve and protect their link with their work because of their moral rights. The economic rights may be owned by the author or creator, or they may be assigned to one or more copyright holders. The transfer of moral rights is prohibited in numerous nations.
Each country’s copyright statute specifies how long a literary work is protected by it. After the copyright of a literary work expires, it is said to be in the public domain and anybody may adapt, use and reproduce it then freely.
Today, copyright in literary works generally lasts for the author’s lifetime and then until December 31 of the year following his or her passing (often referred to as “life plus 70”). However, before this general rule was adopted, some nations had distinct copyright terms in place. For instance, the “life plus” copyright duration was not adopted in the US until 1978. Due to these differences in national laws, it is possible for a particular work to be protected by copyright in some nations while out of copyright (i.e. being unprotected in the public domain) in others.
International Copyright – Treaties and Conventions
Literary works that are the subject of copyright are protected by a number of international treaties and conventions. Among them are:
- The Berne Convention- The primary international convention governing copyright is the Berne Convention. It establishes a framework that all contracting states must include in their national laws and extend to foreign authors and artists. This framework includes author rights, a minimum guaranteed copyright duration, actions requiring permission, etc. Each Berne member state automatically accords, at the very least, the same copyright rights to citizens of other members as it does to its own residents, and this is the notion for national treatment.
- Trade-Related Aspects of Intellectual Property Rights (TRIPS)- All the member nations of the World Trade Organization (WTO) have agreed to the TRIPS agreement. From the perspective of copyright, much of the provisions of TRIPS are similar to that of the Berne Convention.
- The WIPO Copyright Treaty (WCT), 1996- The WIPO Copyright Treaty (WCT), 1996 makes it an offence to circumvent technological safeguards put in place by writers to protect their works.
The WCT’s Articles 11 and 12 represent significant steps toward more robust copyright protection. The obligation to provide legal remedies against the circumvention of technological safeguards used by authors in the exercise of their rights and against the removal or alteration of information, such as specific data that identifies the work or its authors, necessary for the management of their rights, is imposed on the contracting parties by these agreements.
- Marrakesh Treaty- As per the “Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or Otherwise Print Disabled (2013)”, government-authorized entities are permitted to produce and distribute accessible versions of books to people who are blind, have visual impairments, or have other disabilities that make it difficult for them to read books. For the creation and cross-border transfer of specific published works in formats usable by people who are blind, visually impaired, or otherwise print disabled, the Marrakesh Treaty mandates its countries to set limitations and exceptions.
- Universal Copyright Convention (UCC)- Currently of little consequence because all UCC members are also TRIPS or Berne Convention members, the terms of protection, national treatment of nationals of other contracting states with respect to their citizens’ published and unpublished works, and effective protection of the rights of authors are all covered by this convention. Additionally, it also covers effective protection of the rights of other copyright owners in literary, scientific, and artistic works, including writings, musical, dramatic, and cinematic works, paintings, engravings, and sculpture.
Works covered by the convention are protected in both its original form and any version that may be recognizably derived from the original (although at the same time also clearly distinguished from it). Unless the parties involved agree on another form of settlement, any dispute between two or more contrasting nations about the interpretation or implementation of this convention that cannot be resolved by dialogue must be submitted before the International Court of Justice for decision.
Aside from agreements made through conventions and treaties, nations may also directly enter into unilateral agreements with other nations with regard to copyright.
- University of Oxford vs. Rameshwari Photocopy Services- In this case, major publishing houses like Oxford University, Cambridge University, and Taylor & Francis Group filed a lawsuit against a photocopy company that offered study materials to Delhi University students. The lawsuit claimed that such materials were made by photocopying pages from books published by the aforementioned publishers and compiling them in accordance with the students’ curricula. The plaintiffs claimed that this violated Section 51 of the Copyright Act because they contained photocopies of the publication that were protected by the copyright and that the photocopies of books published by them amounted to reproduction without permission. However, the Delhi High Court held that using photocopies to create study materials as instructed by professors did not constitute copyright infringement and such distribution did not amount to reproduction as a publication as the primary intent was creation of study materials (which the Act explicitly provides provisions for with regard to the fair dealing of copyrighted materials for educational purposes).
- Macmillan And Company Ltd. vs. K. and J. Cooper – Bombay High Court
Facts: A book by the Plaintiff, based on Sir North’s translation of Plutarch’s Life of Alexander, was the subject of this appeal petition. A book on the same subject was subsequently released by the defendant, a publishing company. As a result, a lawsuit was brought up seeking damages and an injunction against the Defendant’s book. The Plaintiff’s work included notes she had written as well as a few fragments of Sir North’s writing that were pieced together to form a full continuous storyline. These notes were copied into the subsequent work along with some other material. The primary issue in the lawsuit was whether the Plaintiff had a copyright to his creation since only then would the question of infringement by the Defendant arise.
Decision of the Court: The Court interpreted the provisions of the Act appropriately and held that although the Plaintiff had copied Sir North’s work in which no copyright could exist, he had also added content using his own abilities and brain, making his work original. It was also acknowledged that he had sole rights to the notes he included/wrote in his work. The Court held that the Plaintiff was entitled to the copyright of those portions of the book that arose from his own creation, and that the Defendant’s copying of those portions constituted copyright infringement. The Trial Court’s order was modified by the Court by identifying the portions of the original work where his copyright subsisted.
- Chancellor Masters & Scholars vs. Narendra Publishing House – Delhi High Court
Facts: The Defendant released their own mathematics reference book after the publication of a mathematics textbook for kids by the Plaintiff. On the basis that the guidebook was a copy of their work and that they owned the copyright to it because the questions, answers, explanations, etc. provided in their book were original, the plaintiff sought to restrain the distribution of the Defendant’s book. The defendant claimed that the defence of “fair use” (given in the Copyright Act) applied in this situation.
Decision of the Court: The Court considered whether the purpose that both works served was the same while determining the merits of this case. While the Defendant’s work did not provide a step-by-step explanation of how to get at the answers to the questions, the Plaintiff’s work did include elements such as theory explanations that were missing from the Defendant’s work. The Court determined that the Defendant’s work was “transformative” and could not be considered a duplicate of the Plaintiff’s work because the purposes and ways in which both works were to be used were so drastically different. As a result, it was determined that there was no copyright infringement.
Because copyrights are territorial in nature, international treaties and conventions with national treatment principles and minimum standards of protection have been developed. These international conventions and treaties are useful in fulfilling the fundamental concept and goal of copyright: the promotion of new works. The member states by safeguarding foreign works, encourage the production of new works as the local authors are no longer forced to compete with unprotected cheaper international works. The majority of the work required to achieve effective copyright protection has been completed due to the harmonisation through international treaties. The most significant attempts at harmonisation, however, were made before the advent of the internet. The upgrading of international litigation is now necessitated to address the new issues that modern technology has presented to copyright holders.
With the advent of the digital age, distance between nations is no longer a barrier. The nations are now required to implement a system based on well-known concepts that can be used to address the brand-new copyright issues brought on by technology, the core of such a system being the enforcement of landmark copyright judgments so far.
V K Ahuja, Law relating to Intellectual Property Rights, (Third Edition, LexisNexis)
Paul Goldstein, International Copyright: Principles, Law, and Practice, (Third edition, Oxford University Press)
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