Understanding copyright in an Indian context

Society and mankind recognize various rights that human beings have. These can be broadly classified into rights that are around ownership, profiting or otherwise benefitting from:

1. Physical Property (land, buildings, apartments etc.)

2. Intellectual Property (book, sculpture, computer program, invention, trademarks etc.)

Intellectual property is broadly described as something that has been created by the mind of a human being. Consequently, there are no rights granted or available to other living creatures. Within Intellectual property is the area of Copyright that is the focus of the article here; specifically, it focuses on copyright within publishing.

There is a lot that is said about Copyright and a lot that is written about it. The general publishing professional though remains tentative about various aspects of the law. Here are some frequently confusing questions.

What is Copyright?

It is the right to make copies AND to profit from making the copies. It is also the right to prevent others from making copies AND make a profit on works that are not created by them OR where the right to make copies is NOT assigned to them. Simply put, Copyright grants the creator and assignee of intellectual property the right to profit by making copies.

Copyright is a virtual right that only exists because of LAW. In other words, copyright isn’t a natural right that exists in nature.

Copyright is the right granted to protect the profits, use and copying the expression of an idea. There are no intellectual property rights granted to an IDEA that has not been expressed. This is an important and often confusing aspect of copyright. Many believe there are rights created because of an ‘original idea’ that they have had. The reality is that ideas have no protection under any law on this planet.

What is fair use of Copyright?

The law allows many types of uses that are termed FAIR USE. The term itself has a meaning that needs more understanding. FAIR USE is the term used to describe a use where:

1. The user accesses a legitimate copy of the work – FAIR USE doesn’t cover pirated or otherwise illegally produced works.

2. The user makes a different use of the work without compensating the copyright owner for the use. Different use can be described as:

a. Making additional copies of the works.

b. Changing the mechanism by which the content is consumed.

c. Adapting, performing or otherwise changing the primary format of the work.

Within this lies a universe of misunderstanding and misrepresentation. Here are some common myths about FAIR USE (as relevant directly to publishing both books and journals):

1. Educational institutions need permission from an author of a play to perform the play in school–

a. FALSE. A school or any other educational institution when performing a play for the students and or teachers of the same school, no permission is needed from the author.

b. TRUE. If a school or any other educational institution performs a play for the general public as part of a fund-raising activity OR for promotion of the school’s activities/students, then permission is needed from the author.

2. Any copyrighted material can be used in educational institutions for the purpose of teaching.

a. TRUE – Only if the copy of the copyrighted material is LEGALLY purchased by the institution.

b. FALSE – Teacher using a pirated copy isn’t protected by the Fair Use doctrine.

3. Any copyrighted material can be included in a course pack, without permission from the author or the publisher.

a. TRUE under the following conditions:

i. Where licenses for digital content contains the provision of printing and making copies for use by the institution – generally speaking journal articles subscribed to by the institution will be licensed to be included in course packs.

ii. Where the copy is being made from a legally purchased copy of the copyrighted work.

iii. Where the copy made is used by bonafide students of the same institution.

iv. Where the copy is made by the professor/teacher/lecturer/librarian/student.*

b. FALSE – where the copy is being made by a commercial enterprise to be sold to students/professors/lecturers/teachers.

4. A digital copy of any copyrighted material can be made by a librarian.

a. TRUE only when the digital copy is for the exclusive purpose of archiving a legally purchased physical copy.

b. FALSE when access to this digital copy is given to multiple concurrent users – a separate license is needed for allowing access to multiple concurrent users.

5. An institution, an enterprise, an individual working with the differently abled (such as visually challenged or audio challenged) need to seek permission from the publisher to be able to change the format of the copyright material in order to make it accessible for the differently abled.

a. FALSE – none of these need any legal permission to change the format for the differently abled. Section 52 (zb) (i) and (ii) legally permit the change of format under the FAIR USE doctrine.

6. Once an author hands over his manuscript to a publisher he ceases to be the copyright holder of the said works.

a. FALSE – the creator of the work is the ONLY person who holds the original copyright to the work. When handing over to a publisher, he assigns certain rights. Even if all rights are assigned, the author retains many which no one can take away from him. These are:

i. Moral right to be named as the creator of the intellectual property.

ii. The right to use the same material in another work by the same author.

iii. The right to withdraw any rights assigned to any publisher under any contract.

The subject of Copyright Law, its use and practice is a journey more than a destination. As India grows and publishing flourishes it is important that we understand how copyright works, especially if we wish to expand into more established markets such as the USA and the EU.

*A recent Delhi High Court judgment has extended the authorization to photocopy. This is however applicable in the jurisdiction of the High Court. In other jurisdictions in India, this might be a violation of the law.