Frequently asked questions for Copyrights
1) How would you copyright your personal journal or diary that you write in regularly?
Ans:- It is a major controversy with the consideration that most of the personal journals and diaries remain unpublished. While they are conveniently copyrightable, however, some questions still persists among the common masses if such works should receive copyright protection.
- In Harper & Row v. Nation Enterprises, an unnamed source gave the Magazine with the memoirs of Gerald Ford which was under publication process. The Magazine paraphrased the memoirs and tried to spiral the secrets behind why Ford decided to pardon Richard Nixon. Finally the Supreme Court held that even though it was an unpublished work, yet it was a key factor to negate the defense of “fair use”. Moreover, Nation Magazines’ Acts caused a huge loss as the copyright holder of the memoir lost a contract with TIME Magazine who were supposed to initially publish excerpts from it,
It is evident that there are a plethora of autobiographies published till date. If we peruse the legal protection provided to it, we would find that, the standard of protection is the same. These works have to be original and fixated in some form (or written). In such situations the authors mostly transfer their copyright to the publishing house. Either all the rights related to ownership is transferred or a part of it. The authors have to enter into a proper contract with the publishing houses and clearly lay down what all rights he intends to transfer and license the publishing house for the same.
Section 18 of the Copyright Act of 1957 deals with “Assignment of Copyright”. This provision provides that an author can assign the copyright either wholly or partially. Section 19 of the Act refers to “Mode of Assignment”. The owner of the copyright must sign and permit the assignment. The rights must be clearly specified along with its duration and the territorial extent of assignment. The royalty must also be specified, which is payable to the author or his legal heirs.
Applying the above to the owner of personal journals and diaries, these works can be copyrighted and the rights related to it assigned to publishing houses or any other person.
2) If you want to publish your journal, how would you register the copyright?
Ans :- The general process for registration is the same for all works.
A) Application for Registration of Copyright
Rule 69- this rule provides the form in which the Register of Copyrights must be mentioned. The Register shall be in both physical and electronic form which will have six parts to it which will cover all the subject-matter of copyright in general.
Rule 70-Rule 70(1)lays down that application shall be made using Form XIV. Such applications are accompanied by a fee.
Signatures required- applicant (either author or owner of the right). In case the applicant only holds ownership (such as publishing houses) then a NOC must be obtained from the actual author.
B) Filing of Copyright
Application must be filed with the Copyright Office by any person or by post. Online filing is also allowed and this facility is provided on the Copyright Office website.
Notice- Rule 70(9) states that the applicant must send a notice to any and every person who may hold an interest in the subject-matter of the copyright or would potentially dispute the rights of the applicant.
In case there are no-objections to the registration within 30 days. Once the Registrar is satisfied with regard to the correctness of the particulars, the application can be entered in the Register of Copyrights.
In case there are objections an inquiry shall be held and only after being satisfied with the claims shall the Registrar enter the particulars in the Register. [Rule 70(11)]
Hearing- Rule 70 sub-rule 12 lays down that the Registrar must provide an opportunity of hearing, otherwise an application cannot be rejected in a whim.
Completion of Registration- Once the Copies of the Entries in the Register is signed and issued by the Registrar or the Deputy Registrar who must be delegated with the same. [Rule 70(13)]
The copies must be sent to the parties concerned.
3) Who owns the copyright to the papers you turn in for this class?
Ans:- The papers turned in by students for academic purposes come under the purview of Library works (under the subject matter of Copyright Act). The student is the owner of the copyright. However, sometimes they work under experienced research guides then who would hold the Copyright?
In Fateh Singh Mehta v. O.P. Singhal, it has been held that research guides will not have any copyright over the student’s work. In this case the student wrote a thesis (academic dissertation) for degree in Master of Engineering from University of Jodhpur. The student sought the guidance of the Defendant to complete the dissertation. The Defendant had applied for Ph.D as well in the University the following session. He too submitted a thesis.
After going through his thesis a professor objected to it and stated that it is not original work and portions of it are verbatim copy from the Plaintiff’s thesis.
In order to counter the same the Defendant stated that the Plaintiff in turn doesn’t hold any copyright. His reasoning was based on the fact that he guided the plaintiff during his research to complete his dissertation. He further stated that the Plaintiff acknowledged his expertise and showed gratitude, he also claimed to have taken due permission to use the “rig fabricated for the PhD.
This directs us to the fact that the copyright ownership of the resultant studies made by students may pose a problem in the presence of ambiguous contractual provisions.
A rather interesting take on this topic of student’s work and copyright was put forth by the Spanish Supreme Court in 2020. A university professor had reproduced certain sections of one of his student’s research work without his consent. To justify his act he came up with an interesting argument. He stated that the student wrote his research under the influence of the professor’s lecture of the topic at a particular conference attended by the student. The Court took a very ethical stance here and dismissed his argument. The Court observed that it is a noble and essential part of a professor’s profession to substantially contribute towards research work done by their students and provide assistance in making their ideas and concepts clear through their suggestions and mentoring.
4) Without violating copyright, a) how much of a published work can you quote in your student papers without giving credit? b) How much can you quote if you do give credit?
a) Almost none, a certain level of plagiarism is acceptable. The Level is determined through credible plagiarism detection softwares. One must be aware of the University Grants Commission (Promotion of Academic Integrity and Prevention of Plagiarism in Higher Education Institution) Regulations of 2018.
Relevant provisions – Due rising academic research related malpractices the UGC came up with these regulations. These regulations are applicable to the “students, faculty, researchers and staff of all Higher Educational Institutions in the country”.
Regulation 7- deals with “Similarity checks for exclusion from Plagiarism”. It lays down 3 points, firstly, all quoted works must be reproduced with necessary permission is excluded from plagiarism. Secondly, generic terms, law or legal language is excluded from the purview of plagiarism. Lastly, all references are also excluded.
Regulation 12.1- lays the penalties on the basis of Levels of plagiarism
“i. Level 0: Similarities upto 10% – Minor Similarities, no penalty.
ii. Level 1: Similarities above 10% to 40% – Such student shall be asked to submit a revised script within a stipulated time period not exceeding 6 months.
iii. Level 2: Similarities above 40% to 60% – Such student shall be debarred from submitting a revised script for a period of one year.
iv. Level 3: Similarities above 60% -Such student registration for that programme shall be cancelled.”
b) A significant amount can be quoted as long as it is relevant to the research and one gives individual insight as well and not just quoted works with no supportive points. If the paper is a type of a review or critique, the one can quote as much as needed for constructive criticism and comment. Although, the more one quotes, the more it exceed fair use.
5. You are an employee for Acme Pharmaceuticals. They ask you to write a booklet on how to synthesize aspirin. You agree to do so. They publish the booklet and send it to thousands of customers. Who owns the copyright?
Ans:- Before we venture into the answer of this question, it is imperative to understand the concept of ownership and specific exceptions to it.
Concept of Ownership
This concept is defined under Section 17 of the Copyright Act, 1957. Author is generally considered to be the “first owner of Copyright”. A copyright can have a sole owner or joint owners. This concept of ownership is vastly different and specific from the general understanding of ownership of corporeal properties or physical possessions.
Ownership gives an author the right to exercise his exclusive rights given to him by the statute. Ownership arises when
Authorship of a work is accepted. However, there are certain exceptions under Section 17 of the Copyright Act.
Assignment of the copyright takes place under Section 18
The author seeking copyright or who already has a copyright over his work voluntarily licenses (authorizes) another agent under Section 30 then an ownership interest is created.
There is involuntary licensing or compulsory licensing under Section 31 of the act.
Exception under Section 17
Section 17(a) –This Sections states that when a work is written/produced in the course of employment under another/ organization/ institution then such a work’s first owner of copyright is the organization/ employer in absence of a contrary agreement. (Contract for Service). In VT Thomas v. Malayala Co. The court categorically held that post the termination of contract of employment, the author once again gains the status of being the first owner of copyright.
Section 17(c) – This is an important section as it deals with work made in the course of the author’s employment under a contract of service or apprenticeship, to which Section 17 clause (a) or clause (b) does not apply. This means that the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. In order to get copyright vested in an employer, work must not only be made by his employee but also must be made in the Course of employment. Where a transition was made by a person on the regular staff of a newspaper, but during his spare time, the copyright is not vested in his employer but remained with the translator. (As held in Byrne v. Statist Co.)
Section 17(b) –copyright in commissioned work automatically transferred to plaintiff. Under Section 17 he would be the first owner. Defendants argued there was no assignment and that they were still owners of the work they created. Calcutta High Court rejected arguments of the plaintiff and held that is was a clear case of contract for services and not of contract of service. Application to the facts given above now applying Section 17 (c), since this is a contract of service, Acme Pharmaceuticals holds the copyright.
Stephenson Jordan and Harrison v. Macdonald and Exams (1952)
Gee Pee Film Pvt. Ltd. v. Pratik Chaowdhury and Ors. (2002)
In this case the Plaintiff on an oral agreement commissioned certain defendants in 1999 to compose Bengali non-film lyrics and music.
Another Defendant had to sing songs. Plaintiff published sound records that were based on commissioned work.
The Defendants released music cassettes containing 8 songs from plaintiff’s cassettes. Plaintiff filed suit for infringement of his copyright in sound records on 2 grounds
6. Acme Pharmaceuticals calls you and asks you to write a booklet on how to synthesize aspirin. You agree to do so. They pay you. They publish the booklet and send it to thousands of customers. Who owns the copyright?
Ans:- The answer to this question depends upon whether the nature of service i.e. either it is contract of service or contract for service, accordingly the treatment of the given facts will change.
Distinction between Contract of service and Contract for service
The law provides a fine line of difference between Contract of Service and Contract for Service. The distinction lies at the fact that the former pertains to an employee and the latter to an independent contractor. The existence of the direct control by the employer, the degree of independence of the one who renders the service etc. all matters.
Application to the above given facts
1. As discussed in the previous question, if we assume that I am a part of the regular payroll of Acme Pharmaceuticals then it is a case of Contract of Service. In that case applying Section 17(c) of the Copyright Act, 1957, the first owner is Acme Pharmaceuticals (the organisation) only to the extent of my course of employment.
2. In case they only have hired me for a specific period of time through an agreement then it is a Contract for Service, I would be the first owner and not Acme Pharmaceuticals unless there exists an agreement contrary to the same.
Applying Section 17(b)which specifies only instances where an author, although engaged under contract for service loses copyright. Those are cases of taking photograph, drawing painting or portrait, engraving and making cine films. In present case, my area of work done for the organisation is not under the purview of any of the aforesaid jobs.
7. You are teaching chemistry at Northern South Dakota in Hoopla. You decide you want your students to get a packet of reprints on NMR. You copy ten papers from the chemical literature, write a brief preface and table of contents, and send the packet for copying to the college bookstore. Students purchase the packet at essentially the cost of the copying. Is this legal?
Ans:- Usually no, unless one has to get written permission from the persons holding the copyright or their legal heirs. However, looking at the famous DU photocopy Case, when course material is created for academic purposes then the Apex Court actually permitted it and stated that course material compiled by professors to promote academic support towards students is within the purview of fair use. Since, the material related to NMR is sold at only the photocopy price, it is permissible, however, no extra cost for the material can be added as that would breach the doctrine of fair use under copyright law.
8. If you plan to use material from another journal article, what steps would you follow? Provide a specific article as the example.
Ans:- Firstly, one should avoid plagiarism at all costs. Secondly, when one is quoting from a journal due credits must be given through proper citation (page number from where the excerpt of the journal has been taken). Thirdly, provide an explanation as why one has quoted that excerpt and how it validates or invalidates any point or opinion placed in the research material being written. Lastly, the excerpt must be quoted in such a manner that it is clear to the readers that it is taken from a journal or someplace else for that matter.
For example- Following is an excerpt from an article “Copyright Law of India and the Academic Community” by T C James from a certain Journal of Intellectual Property Rights.
“Educational institutions did not look upon intellectual property effort as a wealth creation activity. In fact, copyrightable works such as course material or textbooks were not looked upon as ‘commodities’ in the market place but as instruments for achieving the primary objective of such institutions, that is, imparting of education. However, with the development of new technologies in storage and dissemination of information the situation has changed and now academic community cannot be a silent spectator.” (Page 208, para 3)