In today's globalised world, the creations of Indian authors, artists, and creators are no longer confined to national boundaries. Whether it is literature, music, film, or digital content, Indian creators have a significant global audience. This widespread dissemination of creative works necessitates a robust international copyright protection system to ensure that creators can safeguard their rights and receive fair compensation for their creativity worldwide.
The copyright law of every country is territorial in nature and there is no single International Copyright Law to protect an author's work across all nations. The principles governing international copyright protection flow from a bunch of treaties and conventions entered into by nations to ensure minimum standard of protection of their works in other member states.
Indian Copyright Law: Overview
The Copyright Act, 19571
The legislation governing copyright in India is the Copyright Act, 1957. It outlines the types of works that can be copyrighted, the rights granted to copyright holders, and the duration of these rights, as well as remedies for copyright infringement, including civil and criminal actions, which serve as a deterrent against unauthorised use of copyrighted material.
Key provisions of the Act include:
- Economic rights: These rights allow creators to control the use of their works, including the right to sell, store, reproduce, publish, translate, distribute, perform, and communicate the work to the public. Creators can license or assign these rights to others, enabling them to generate income from their creations.
- Moral rights: Moral rights protect the personal and reputational interests of creators in their work. These include the right to be credited for their work (right of attribution) and the right to object to any mutilation or derogatory treatment of their work that could harm their honour or reputation (right of integrity).
- Duration of copyright: Generally, copyright protection lasts for the lifetime of the creator plus 60 years after their death. For works like cinematographic films, sound recordings, photographic works and anonymous or pseudonymous works, the duration varies but typically extends to 60 years from the date of publication.
Understanding International Copyright Laws
Today, owing to technological advancements, the creations of artists, writers, and innovators can reach a global audience almost instantly. International copyright laws are crucial because they provide a consistent standard of protection of creative works across different countries. Without such laws, creators would face significant challenges in protecting their works from unauthorised use in foreign markets. These laws help maintain the economic value of creative works and encourage further innovation by ensuring creators receive proper recognition and compensation for their works.
Several key treaties govern international copyright protection, of which the most significant are the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
Berne Convention2
The Berne Convention for the Protection of Literary and Artistic Works, adopted in 1886, is one of the oldest and most comprehensive international agreements on copyright. Adopted by 181 countries as of July 2024, the Berne Convention was instrumental in laying down the foundation for international copyright principles and fostering a system that ensures authors can control their works around the globe. The Berne convention is loosely based on the following three basic principles:
Principle of national treatment- This principle requires the contracting states to give the same protection to nationals and works of other contracting states as it grants to its own nationals and their works.
Principle of automatic protection – The protection extended under the convention is not made contingent upon any formality requirement like registration of the work or other compliance. This condition precludes the member countries from imposing any obligations for enforcement of copyright.
Principle of independent protection -This principle stipulates that protection in the contracting states is not dependent on protection in the state of origin of the work.
The Berne Convention thus outlines fundamental rights such as the right to control the reproduction, translation, public performance and communication, broadcasting or transmitting, rights of adaption, arrangement, and distribution of works.
Universal Copyright Convention3
The Universal Copyright Convention (UCC) is an international treaty established by UNESCO in 1952. Historically, the UCC played a vital role in the post-World War II era, promoting international cooperation and cultural exchange. The purpose of establishing the UCC was to provide an alternative and flexible framework to the nations that could not accede to the Berne Convention. The flexible standards introduced by UCC were particularly attractive to developing countries, including India. It stipulated that the presence of the © symbol along with the name of the copyright owner and year of first publication in all copies of the work would be sufficient to consider that all formalities required by national laws of any member state have been met. The minimum term of protection under the UCC is the life of the author plus 25 years, although countries can provide longer terms.
A key principle of the UCC is national treatment, ensuring that work from one member country receives the same protection as work from all other member countries in their home country. This principle facilitates the international distribution and recognition of Indian creative works.
TRIPS Agreement4
Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement), administered by the World Trade Organization (WTO), is another crucial treaty in the realm of international copyright protection. It came into effect in 1995 and set minimum standards for copyright protection and enforcement that all WTO member countries must follow. While the Berne Convention primarily dealt with copyright protection for literary and artistic works, the TRIPS Agreement envisages minimum standards of protection for intellectual property related to trade, such as trademarks, trade secrets, patents, industrial designs, and geographical indications. TRIPS incorporates many principles of the Berne Convention and extends them to include additional intellectual property rights, thus providing a more comprehensive framework for global copyright protection.
A few key improvements made by TRIPS over the Berne Convention were that while the latter did not extend protection to computer programs or databases, the TRIPS Agreement provides protection to computer programs, whether in source or object code, as any other literary work (Article 10(1)). Likewise, although Article 2(5) of the Berne Convention covers literary and artistic works, it did not specifically mention databases. TRIPS Agreement, on the other hand, lays down that "compilations of data or other material, whether in machine-readable or another form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such" (Article 10(2)). Such protection, however, does not cover the contents or data but the particular arrangement or structure of compilation. Further, under TRIPS, the member states are required to impose strict sanctions upon infringers and violators, unlike the Berne Convention, which lacked provisions for strict enforcement.
Ensuring Protection Across Borders
These treaties and conventions play a vital role in ensuring that creators receive consistent protection for their works across different countries. By adhering to these international agreements, countries commit to upholding certain standards of copyright protection, which helps prevent unauthorised use and ensures that creators can benefit economically from their works. This international cooperation is essential for fostering a global environment where creativity and innovation can thrive, providing creators with the confidence that their rights will be respected no matter where their works are distributed.
Challenges Faced by Indian Creators
Indian creators, like their global counterparts, encounter several challenges in protecting their copyrights on the international stage. Understanding these obstacles is crucial for devising effective strategies to safeguard their creative works.
Piracy
Piracy is a significant challenge faced by creators in the protection of their works. Unauthorised copying and distribution of copyrighted materials have become rampant in the advancing age of the internet. It is now easier to make unauthorised use of copyrighted digital content, with something as common as a smartphone, which has added to the woes of creators. Indian creators often find their works being illegally reproduced and shared without their consent, leading to substantial financial losses and dilution of their intellectual property. Enforcing effective checks and measures to deter such activities, especially on a global scale, is a challenging task.
Varying legal provisions:
Provisions of the Copyright Law are different in each country, starting from the preliminary formalities to advanced aspects like the extent and scope of works covered, duration of protection, the legal recourse available, enforcement proceedings, etc. To an Indian author or creator, unversed with the domestic laws of the infringer's nation, prosecuting the infringers in multiple jurisdictions is often a time-consuming and daunting task, needless to mention, the language barriers and financial burdens that can further complicate these disputes.
FairUse:
The doctrine of fair use is one of the most misused exceptions of copyright laws that allows for limited use of copyrighted material without acquiring permission from the author, subject to being put to fair use, such as research, news reporting, criticism, teaching, scholarship, etc. It is often a challenging task to determine whether or not an unauthorised use of a work constitutes fair use, especially when the infringer is from a different country.
Domestic systems:
Different countries have varying levels of commitment and resources dedicated to upholding copyright laws, making it difficult for Indian creators to pursue cross-border legal action effectively. While advanced nations may have rigorous enforcement measures, other nations may not have the necessary financial wherewithal to support a robust prosecution system to curb infringements.
Need for Stronger Enforcement Mechanisms
Despite the existence of international treaties, there is a pressing need for stronger enforcement mechanisms. International cooperation among countries is essential to ensure that copyright laws are not just on paper but are actively enforced. This includes better collaboration between law enforcement agencies, streamlined legal processes for cross-border cases, and more stringent penalties for offenders.
International Cooperation
International cooperation plays a vital role in addressing these challenges. Countries must work together to create a cohesive and effective system for protecting intellectual property rights. This includes sharing best practices, providing mutual legal assistance, and fostering a global culture of respect for copyright laws. For Indian creators, engaging with international bodies and participating in global forums can help advocate for stronger protections and support.
Strategies for Indian Creators to Protect Their Works Internationally
Indian creators can protect their works globally through various strategies:
- Understanding international copyright laws: Familiarise with treaties like the Berne Convention and TRIPS to ensure cross-border protection.
- Seeking legal counsel: Consult IP lawyers for guidance on navigating international copyright laws, drafting agreements, and resolving disputes.
- Registration: Registering works adds legal security, aiding in enforcement and claiming damages internationally. It also facilitates easier enforcement of rights and enhances the creator's credibility, aiding negotiations with foreign publishers, distributors, or collaborators. A registered copyright simplifies legal action and damage claims, which is crucial for protecting intellectual property globally.
- Joining Collective Management Organizations (CMOs): CMOs are organisations that helps copyright owners in management and protection of copyrights as well as collection of royalties for their work. Indian creators can consider membership in CMOs to manage rights, facilitate licensing, and ensure fair distribution worldwide. As India is a member of the key treaties concerning international copyright protection, joining such CMOs can facilitate easier management of all crucial aspects across multiple countries.
Frequently Asked Questions
1. How do I file a copyright internationally?
Copyright registration is typically a national process, and there is no provision for international copyright filing. To ensure protection of one's work internationally, it is recommended to first secure registration in the home country. The work will automatically receive protection in other countries that are members of international copyright treaties, such as the Berne Convention. For enhanced protection, one can register their work and comply with the legal requirements, at least in important jurisdictions where the work is intended to be monetised. This process may involve different procedures and fees depending on the country's copyright office.
2. What is an international application of copyright?
An international application of copyright refers to the principle where a creator's copyright is recognised and enforced in multiple countries. This recognition is primarily achieved through international treaties like the Berne Convention and TRIPS. These agreements ensure that a work created in one member country is automatically protected in all other member countries without the need for separate registrations in each country.
3. What is the framework of international copyright?
The international framework of copyright consists of treaties and agreements designed to provide standardised protection for creators worldwide. Key components include the Berne Convention, which mandates automatic protection and national treatment for foreign works, and TRIPS, which sets minimum standards for copyright protection among World Trade Organization members. These frameworks ensure that creators' rights are respected across borders, facilitating global commerce and cultural exchange while protecting intellectual property.
4. Can a single application for Copyright be filed for protection in multiple countries simultaneously?
No, in order to secure registration in more than one country, independent applications have to be filed before the appropriate office of each country.
International copyright protection is crucial for Indian creators to safeguard their works in a globalised market. Understanding and adhering to international copyright laws and treaties, such as the Berne Convention and TRIPS, ensures that their intellectual property is respected and protected worldwide. It is essential for Indian creators to stay informed about these international frameworks to navigate the complexities of copyright law effectively. By taking proactive steps, such as registering their works and seeking legal counsel, Indian creators can secure their rights and enhance their ability to protect and monetise their creations globally. This proactive approach fosters a robust and secure creative environment.
Footnotes
1. The Copyright Act, 1957
2. https://www.wipo.int/treaties/en/ip/berne/ ( last accessed on 10/06/2024 )
3. https://wipolex-res.wipo.int/edocs/lexdocs/treaties/en/unesco1/trt_unesco1.pdf ( last accessed on 04/07/2024 )
4. https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm ( last accessed on 10/06/2024 )
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.