What is a copyright and why is it important?

Copyright is a form of legal protection, provided by the Copyright Act 2000, to creators of artistic works. These exclusive rights essentially ensure that, from a legal standpoint, no one but the creator can use a work in a number of prescribed manners. Thus, the exclusive rights afforded by copyright give rise to its legal definition: a limited duration monopoly. Example: An idea comes to the mind of a creator. The idea takes form. Its form may be a painting on canvas, a pastel drawing on paper, a melody and lyrics recorded on tape, or perhaps a novel penned on parchment. In the digital world, its form may be a digital painting, drawing, melody or poem, it may be a novel, illustration, web page, software program, or scripting element, all captured on a hard drive or so. These are the creative results of an original idea or concept fixed to a tangible medium. Copyright begins here. R. G. Anand v. Delux Films, (19780 4 SCC 118: AIR 1978 SC 1613: One of the issues addressed whether the film New Delhi is an infringement of the plaintiffs copyright in the play Hum Hindustani. What can be copyrighted? According to the Copyright Act 2000 the following works can be copyrighted Literary, dramatic, musical (lyrics, music composing) or artistic work, cinematograph film, sound recording, broadcasting, performance of dramatic work (Recitation, choreographic work or entertainment in dumb show), computer program, photograph and sculpture. In order to copyright a work, two requirements must be met. o First, the work must be original. Original in this context generally means that the work was not copied from someone elses work. o Second, the work must be fixed in a tangible medium of expression, i.e. written down on paper. Example: With respect to music, fixation in a tangible medium refers to recording the work on something the creator can hold or touch. Examples are writing a song down on paper or recording a song onto a storage device such as a tape, DAT, CD, DVD, computer hard drive, or other recording medium. Merely performing a song live does not fix the work in a tangible medium.

Ideas and concepts are not copyrightable. Only the expression of an idea is copyrightable (the way you describe the idea). For example, suppose an artist records a song or album that is later credited with creating an entirely new genre of music. The artist cannot claim a copyright over the entire genre. The artist may only copyright particular song, sound recording, and album. The following are the basic limitations on copyright o Facts, concepts and ideas are not protected by copyright. How the fact, concept and/or idea is expressed via tangible creation is protected. o Works not protected by copyright are considered in public domain and belong to the public for free use. Works with an expired copyright are free use. o Fair use exceptions are allowable for such purposes of teaching, research, news reports, parodies, and critiques provided that the value of the copyrighted material is protected. Example: Can an individual scan an image and put it online? If an individual is not the original creator or copyright owner of the image, he/she cannot legally redistribute that image. Scanning an image and placing it online is redistribution and it is a breach of copyright. This includes images found in magazines, books, newspapers, greeting cards, calendars, catalogs, CD covers, brochures, etc. Major companies such as Disney, Hallmark, Warner Brothers, etc., have very strict regulations about the redistribution of their property. One cannot legally scan and redistribute photographs, cartoons, illustrations, drawings, etc., if the work is protected by copyright. Likewise one cannot legally create a "fan site" using copyrighted photographs without the expressed permission of the photographer or copyright owner. "Freezing" an image from a television program, movie, or film for redistribution is also not allowed. The television program, movie, or film is protected by copyright as a complete entity and as individual frames. Copyright Abuse, Theft and Orphan Works: Copyright theft and possible legislative changes, such as the Orphan Works Bill in the USA, make it ever more important that all online images have copyright and basic contact data embedded in the file. Unfortunately most web site publishers and export for web software strip out such information, which leaves images exposed to copyright theft. It is very easy to download images that appear on web sites and once on someone else's computer, the picture has no link to the photographer or their ownership of the copyright.

Stock photographers rely on selling multiple licenses over time of the same image for their income. Once an image is effectively in the public domain it rapidly loses its value especially for, say, advertising, which is where the best license fees are found. An advertiser is unlikely to use a photograph that has been appearing all over the internet they want exclusivity to protect their brand values. Ownership of copyright who is the copyright owner? Copyright is established when an original work is created, composed or written and fixed to a tangible medium such as paper, canvas, recording, recorded on a disk or CD, a hard drive, on film, etc. However, copyright ownership may be transferred and/or sold.

Section 17 of the Copyright Act stipulates that: o Original Creator of a copyright work is usually the first owner. o Employer is the first owner, where a copyrighted work is made by an employee in the course of employment. o If the author is employed by news paper, magazine, etc. under a contract of service, the proprietor will be the first owner in the absence of an agreement to the contrary in the case of a literary, dramatic or artistic work. o In case of government work the government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. o However, a single work may be created and owned by more than one person. Term of Copyright - how long the Copyright Protection remains? o The term for the Copyright, for any literary, dramatic, musical or artistic work (other than a photograph) shall subsist until sixty years from the beginning of the calendar year next following the year in which the author dies. (Lifetime + 60 years). [section - 24] o Cinematograph, records, photographs, computer works, sound recording 60 years, from the beginning of the calendar year next following the year in which the work is published. [sections 26, 27, 28, 28A] o Government works 60 years from the beginning of the calendar year next following the year in which the work is published. [Section - 30] Broadcast reproduction right [s.33] Every broadcasting organization shall have a special right to be known as broadcast reproduction right in the respect of its broadcast.

o The broadcast reproduction right shall subsist until 25 years from the beginning of the calendar year next following the year in which the broadcast is made. Procedure to obtain Copyright However, to accord copyright, following factors are also to be taken into consideration o The work must not be copied from another work but must originate from the author; o Two authors independently producing an identical work will be entitled for copyright in the respective works; o The emphasis is more on the labor, skill, judgment and capital expended introducing the work. The Copyright Act 2000 laid down the broad scope of copyright protection. A copyright more or less gives the right to do and authorize the doing of any of the following acts o o o o o o o To reproduce the work in any material form; To publish the work To perform the work in public; To produce, reproduce, perform or publish any translation of the work; To make any cinematographic film or a record in respect of work; To communicate the work by broadcast or by any other similar instrument; To make any adaption of the work.

Registration of copyright [S. 56] The author or publisher or the owner of copyright or any other person interested in the copyright in any work may make an application in the prescribed form, subject to payment of prescribed fee, to the Registrar of the Copyrights for registering the work. Copyright Licenses by the owner [S. 48] The owner of the copyright in any existing work or the prospect owner of any future work may grant any interest in the right by license in writing signed by him or by his duly authorized agent. Copyright License is usually a contractual agreement between the copyright owner and the user and may be governed by Company Law, Competition Law and Contract Law. Copyright License can be exclusive or of limited use o Exclusive License - an exclusive license would enable the licensee to use the copyright work to the exclusion of all others;

o Limited use License - a license can relate to one or more of the economic rights and can also be limited in time or any other way. Registration of assignment etc. on the copyright [S. 57] Any person interested in the copyright either by assignment or license may make an application in the prescribed form accompanied by the prescribed fee, the original instrument of such grant and a certified copy thereof, to the registrar for entering the particulars of the grant in the registrar of copyright. International Copyright [S. 68 70] Copyright as provided by the Copyright Act of Bangladesh is valid only within Bangladesh. However, to secure protection to Bangladeshi works in foreign countries, Bangladesh has become a member of the following international conventions on copyright and neighboring rights o Berne Convention 1886 for the protection of literary and artistic works. Ratified by Bangladesh on May 4, 1999; o Universal Copyright Convention 1952 - ratified by Bangladesh on May 5, 1975; o Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) 1994, under WTO ratified by Bangladesh on January 1, 1995 as part of the WTO agreement. Therefore all works of Bangladeshi creators will get copyright protection in any of the member countries of aforesaid international conventions and agreements. What is copyright infringement (or piracy)? Copyright infringement occurs when any of the exclusive rights in a copyright are violated without the owners permission and no exceptions apply. Piracy most often refers to infringement through unauthorized copying and/or distribution, including downloading, of copyrighted works. Those who infringe copyrights are subject to both civil and criminal penalties. Furthermore, those that aid others in infringing may also be subject to penalties. For example, the owners of the original Napster, though they did not themselves download songs without the permission of the copyright owners, were held liable because the software allowed others to download songs illegally. As per S. 71, Copyright Act 2000, Bangladesh, when any person without a license granted by the owner of the copyright or the Registrar of the copyright, or in any contravention of the conditions of the license so granted or of any conditions imposed by a competent authority

o Does anything, the exclusive right to do which is conferred upon the owner of the copyright; or o Permits for profit any place to be used for communicating the work to the public via such communication constitute and infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. Where any person does any of the following acts, it will also be considered as infringement of copyrighto Make for sale or hire or sales or lets hire or by way of trade displays or offers for sale or hire any infringing copies of the work; o Distributes either for the trade or to such an extent as to affect prejudicially the owner of the copyright, any infringing copies of the work, or o Exhibits to public by way of trade any infringing copies of the work, or o Imports into Bangladesh infringing copies of the work. In general it is the commercial exploitation of the work in any form by a person without authority that constitutes infringement. However, copyright infringements can be divided into three different segments o Direct Infringement - wholesale reproduction and distribution; o Contributory Infringement - knowingly encouraging infringing activities; o Vicarious Infringement- deliberate un-supervision (for financial benefit). What is fair use or fair dealing? Another noteworthy exception to the exclusive rights previously described is referred to as the fair use doctrine. Fair use provides an absolute exception to the exclusive rights of the copyright owner when another uses the owners work in specific ways. In cases where the fair use exception applies, permission from the copyright owner to use the work is unnecessary. Generally, use of a copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research qualifies as fair use. While no bright line rules exist for determining whether a particular use is fair, courts rely on a four factor test. The factors are 1) The purpose and character of the use, including whether the use is commercial or for non-profit educational purposes;

2) The nature of the copyrighted work itself, in which courts typically evaluate whether the work is factual, scientific, or artistic in nature; 3) The quantitative amount and substantiality, interpreted as the qualitative amount, of the work that is copied; and 4) The effect of the use upon the potential market for or value of the work. Generally speaking, uses for non-commercial purposes that will not diminish the copyright owners ability to make money from the work are considered fair use. As a result, permission from the copyright owner for those uses is unnecessary. As per Section 72, Copyright Act 2000 the following acts shall not constitute an infringement of copyright o A fair dealing with literary, dramatic, musical or artistic work for the purpose of o Private use, including research; o Criticism or review; o Reporting current events in a newspaper, magazine, or periodical, by broadcast or in a cinematograph film; o For use in judicial proceedings; o Academic discussion, for education and research purpose, etc. Copyright Society A copyright society is a registered collective administration society, which as a separate legal entity safeguards the interest of the owners of the work in which copyright subsists. In fact, the author of a creative is assured of commercial managements of his/her work by these societies. Section 41 47 of the Copyright Act 2000 provides for the formation and management of the copyright society in Bangladesh. As per section 41 (3), Copyright Act 2000, only one society shall be registered to perform its designated activities in respect of the same class of work. Function of the Copyright Society As per section 42 (3), Copyright Act 2000, a copyright society may o Issue licenses in respect of the rights administered by the society; o Collect fees pursuant to such licenses; o Distribute such fees, minus administrative cost, among the copyright owners; Moral Rights

Besides, conferring economic benefits copyright also confers Moral Rights on the author. Moral rights protect the personality and reputation of the Author. It cannot be transferred or assigned. The Moral Right of an author includes the following o Right to be identified as the author of the work; o Right to object to derogatory treatment of the work; However, the Copyright Act 2000 have not used the term Moral Rights rather it has given similar rights to authors under them term of Authors Special Right, which is laid down in section 78 of the Act. As per section 78, Copyright Act 2000, the author even after the assignment of the or copyright will enjoy the following rights o To claim authorship of the work; o To restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work, distortion, mutilation, modification or other act would be prejudicial to its owner or his reputation (Right to Integrity); Amarnath Sehgal v. Union of India (2005) 30 PTC 253 (Del): This is a case which has widen the scope of moral rights in India. The Court in this case went on record by interpreting Section 57 in its wider amplitude to include right against destruction of a work of art. In this case the government of India, though it is the owner of the work, was held to have no right to destroy the work against the will of its author. Suits, remedies, etc. for Copyright Infringement Remedy under Criminal Procedure: Criminal proceedings are available in order to punish the persons who have violated the Copyright Law. As per section 82, Copyright Act 2000, Copyright Infringement is a cognizable offence and is punishable with imprisonment for a period extending from 6 months to 4 years and a fine ranging from Tk. 50 thousand to Tk. 2 lac only. Remedy under Civil Procedure [S. 76]: Where copyright in any work has been infringed, the owner of the copyright shall be entitled to all such remedies by way of injunction, damages, and accounts and otherwise as are or may be conferred by law for such infringement. The suit or other civil proceedings relating to infringement is to be filed in the Court of District Judge, whose jurisdiction the plaintiff resides or carries on business or where the cause of action arose. The owner of the copyright may seek relief such as an Anton Pillar Order (search order). The Anton Pillar Order Any plaintiff seeking an Anton Pillar order must place before the court all the information they have relating to the circumstances of the defendant which they can suggest points to the

probability that in the absence of such an order, material which should be available will disappear. Recognizing and realizing the capability of and infringer to readily destroy the evidences of infringement and thereby defeat the ends of justice, the courts of law have created various remedies to offset the same. The Anton Pillar Order is one of them envisaged by the judicial system to help strengthen the position of an injured party by enabling him to secure evidences of infringement from a particular competitor or pirate. The genesis of Anton Pillar Order may be found in Anton Pillar v. Manufacturing Processes, where the British Court of Appeal gave its endorsement to a procedure whereby a plaintiff is to be allowed to approach a Court in camera without any notice to the defendant, for an order that the defendant permit him to inspect the defendants premises and to seize, copy or photograph material relevant to the alleged infringement. Further, the defendant may be asked to deliver up the infringing goods, keep infringing stocks or incriminating papers and even to give information, for instance, about his source of supply, or destination of stock passing through his hands. This is also followed by the courts of Bangladesh. It is however a fallacy to think that a Court would upon mere allegation of infringement, present the plaintiff with such an order. A Court would not generally bestow such an order unless there per-exists three conditions for making an Anton Piller Order, they are: 1. Existence of strong prima facie case; 2. Potential or real damages; 3. Presence of clear evidence must exist that the defendants or things and that there is real possibility that they may destroy such material before any proceeding inter parties can be made.