AARSHIYA CHOWDHARY ASSIGNMENT : COPYRIGHTS Ans.1.

Moral rights being necessarily of a

character personal to the author, he retains them even if he has transferred his economic rights. He must certainly retain them during his lifetime; countries which do not provide for a longer term at the time of accession to the Convention are exempt from the normal requirement that moral rights shall be maintained at least until the expiry of economic rights. (This exemption was necessary because, as we have seen, some countries provide for moral rights indirectly through their existing laws; the remedies available under such lawsfor example of defamation may not be available after the authors death.) It should be added here that moral rights are regarded as inalienable in some countries, though not necessarily so in others.

Ans.5. The Copyright Act, 1957 was obviously drafted in complete

oblivion of the phenomenon called the Internet. Even after its amendments in 1994 and 1999 it does not contain any express provision for determining or limiting ISP liability. However, some provisions in the Act could be interpreted to have some bearing on the liability of ISPs. ISPs allow their servers and other telecommunication facilities for storing users material and for transmitting that material. The computer servers and other telecommunication facilities are actually located at their business premises and hence they would verily come under the expression any place and could be held liable for the infringing activities of third parties whose material they store or transmit if other requirements are fulfilled. Further, the expression permits for profit means that to be held liable the activities of ISP should be for profit meaning thereby that he should be financially benefiting out of the infringing activities. So, the above two requirements are fulfilled by ISPs for most of their activities in case they transmit or store infringing material. The expression unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright is significant in the sense that ISPs are liable only if they have knowledge

of the infringing material stored or passing through their servers. ANS.4. Fair dealing: The term fair dealing is used in clauses (a) and (b) of sub-section (1).The American term fair use , which is often used in discussion of copyright law, is interchangeable with fair dealing.This is a general term, developed through case law, for cases where an author uses another work, not to exploit the latter directly but to make an acceptable use of it for the purposes of his own work; it would not be fair dealing to use so much of the other work, or to use the other work in such a way, as to create a substitute for it. Examples of such fair dealing include the use of quotations or extracts to illustrate or corroborate a point being made in ones own work: but a line would have to be drawn between this legitimate activity and the inclusion of extracts from anothers work as a substitute for creating ones own expression. Another long-established form of fair dealing is parody: this is a legitimate form of criticism, a parody is very much an original work, yet by its very nature it must make use of the work parodied. ANS.3. Section 57, Copyright Act: Section 57 of the Copyright Act, 1957 provides for the two forms of moral right mandated by the Berne Convention in substantially the same termsas the Convention. Under our Act, these rights are termed the authors special right, theterm copyright being reserved for economic rights. We may note the following additional points about this provision: The right of integrity may be exercised only before the expiration of the term of copyright, but there is no such restriction on exercise of the right of paternity. Failure to display a work, or to display it to the authors satisfaction, is not an infringement of the authors special right (Explanation to section 57). The most obvious application of this is to artistic works: a painter or sculptor, for example, would not be able to complain that his work had not been displayed, or displayed with sufficient prominence, by the owner of the original or any copy of it. The adaptation of a computer program to utilise it for the purpose for

which it was supplied (interoperability) or for purposes of backup would not infringe the authors special right. This may seem too obvious to have needed inclusion in the Act, but has clearly been inserted to prevent any possible obstruction of such legitimate adaptations to computer programs. Ans.2.The Copyright Act, 1957 does not specifically require fixation of the work as a precondition of protection. But in most cases, in practice, it would be difficult to pin down the identity of a work, and consider an allegation of infringement, if the work had not been fixed in material form.
These are countries of the common law group. Some of the major differences between national laws will be discussed later.
1

Originality: Copyright protects original works. This only means that to enjoy copyright in a work its author should have created the work rather than reproducing another work. It does not mean that the work has to be very novel or innovative: so we say that the standard of originality required for copyright protection is low. An author may borrow ideas and obtain factual content from any source including the works of other authors, but if an author gives expression to such facts and ideas in a new work, it is an original work: for example this course material contains no new ideas and no facts which will not be found in other, existing published works, yet it is an original literary work. If a work could be expressed in no other way, so that there is a convergence between its content and its expression, it may not be protected by copyright. This is sometimes called the merger principle. CASES. Cf Baker v Selden, Hollinrake v Truswell We may pause to consider why copyright protects original expression rather than content.

Patent laws do indeed protect ideas, but only very specific ones which are innovative and have an industrial application, besides being nonobvious, and the authorities concerned follow an elaborate procedure to determine the patentability of an invention. In the case of works protected by copyright, it would seldom be practicable to identify original ideas--or the provenance of facts--with any degree of certainty. Nor, assuming it were possible, would such a thing be at all desirable: it would obviously make it nearly impossible to produce an original work. There has to be some minimal creative, intellectual contribution in the arrangement or presentation of material to make something qualify as an original work. Recently, the Supreme Court of India in Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 held the as far as he judgments of Courts are concerned, there cannot be any claim as to copyright as the same is already in the public domain. In most cases there is unlikely to be much serious difference of opinion about this, but there are marginal cases (like a telephone directory) where courts may take differing views of the matter in different countries, or at different times. CASE: Feist Publications, Inc. v Rural Telephone Service 490 U.S. 340, 111 S.Ct. 1282, L.Ed.2d 358 (1991) The degree of intellectual contribution required may also vary somewhat according to the nature of the work: for example, questions are more likely to arise as to whether or not a particular article of everyday use qualifies for protection as a work of applied art, or a particular building as a work of architecture, than in many other cases.

 Since it is usually difficult to prove the actual act of copying, the courts have to consider the similarities between works to decide whether a work is original or has been copied from another. As a general rule, the courts will consider the overall impression created by two or more works to decide whether a work is original or is the reproduction of another.