A guide to protect your Intellectual Property Rights
It is a topic over which not just companies but even entire nations fight. And with globalization becoming an irreversible reality to contend with protecting IPR is top priority for any knowsledge-driven organization. More so building an impressive portfolio of Intellectual Property Rights (IPRs) is a key competitive advantage necessary to the very survival and success of an increasing number of organizations across product and services segments.
First let me try to give you an idea of the different kinds of intellectual property protection available under law like:
1. Patents, for new and not obvious inventions – for example, Graham Bell got a patent when he invented the telephone.
2. Copyrights, for original expressions of art, literature, music, drama etc. – for example, Pepsi claims copyright over the expression “Yeh Dil Maange More”
3. Trademark protection for the brand name and logo that you use- for example, the name ‘Kodak’ is a protected trademark and only its owner can use it.
4. Design protection for aesthetic features in products – for example, a toothbrush with feet can get legal protection for its design.
5. Other confidential information and trade secrets can be protected by restricting physical access to that information and also imposing contractual obligations upon the persons dealing with that information – for example, the formula for making Coca Cola has been kept secret in this manner.
The procedure for obtaining and protecting your IPR depends upon the kind of subject matter that needs to be protected. Very often, a particular object or creation may have to be protected by a combination of different IPRs. Having listed the various options let me move onto the actual process of copyright protection.
Copyright protection is available for every original work of literature, music, art, sculpture, and architecture etc., including computer programs or new processes like the “One Click” model copyrighted by Amazon.com. The only criterion to determine whether you are entitled to copyright protection is originality in expression. In deciding whether a work or creation is entitled to copyright protection, its substance or quality is immaterial. For example, a web page may be very badly designed, but it is entitled to copyright protection as long as its layout, structure or design is original.
You have copyright over all original works created by you as well as those created by your employees during the course of their employment. If, however, you are getting work done or developed through third parties, you will get copyright over such work only if you have a contract or agreement clearly assigning such rights in your favour.
It is often said that copyright law protects the expression of an idea and not the idea itself. In other words, if the idea found in a copyrighted book is rewritten in a substantially different manner by another, there is no copyright infringement. However, it would amount to infringement if you adapt or translate a copyrighted work without obtaining a license from its owner. For example, if you want to make a movie based on a book, you have to obtain permission from the person/s who owns the rights to that book.
Copyright law does not prohibit a person from independently creating or developing something that is similar to a copyrighted work. For example, if a programmer, independently, using his/her own efforts, develops software that is similar to copyrighted software, s/he will not be guilty of infringement as long as s/he has not copied the same.
To get copyright protection for your work, it is not necessary to fulfil any legal formalities. However, it is advisable to go in for registration of your work before the Registrar of Copyrights, New Delhi. Registration will help you prove your copyright in case you need to establish the same in future. To register a work with the Registrar of Copyrights, you have to make an application in Form IV along with a payment of Rs.10/ and three complete copies of the work in respect of which you seek copyright protection.
As regards works in machine-readable form only, such as computer programs, it is sufficient to deposit “identifying portions” of the work. It is also advisable to display a notice on your work declaring your copyright over such work. In the case of computer software, such a notice could be printed on the physical medium on which the software is stored, in the operating manual and also be displayed on the computer monitor. To give such notice, it is sufficient if you use the symbol ã followed by the name of the copyright owner and the year of first publication. For example, ã indialawinfo 2001.
Additionally, you could state in words that you enjoy copyright protection in that work and that unauthorised use, copying, licensing, selling, offering for sale, hiring, importing, adapting and translating (and reverse engineering, in the case of computer software) of the work is illegal. A copyright notice would be prima facie proof of your copyright in the work, if you need to establish the same in court.
Your copyright is infringed if a person copies, sells, offers for sale, gives on hire, adapts, translates or otherwise reproduces or communicates your work to the public, without obtaining a license to do so. However, the law provides that “fair dealing” or “fair use” of a copyrighted work does not amount to copyright infringement. Some examples of such fair dealing are:
1. copying small portions of copyrighted work for non-commercial private use such as research
2. making back-up copies of computer programs
3. making copies or adaptation of legally acquired software for personal non-commercial use
4. using copyrighted work for the purpose of criticism or review
5. reproducing copyrighted work while reporting judicial proceedings or issuing certified copies
6. public recitation of a reasonable extract from a literary or dramatic work
7. reporting of current events in newspapers or magazines, which involves publishing copyrighted work or a lecture delivered in public
8. teachers and students using copyrighted material for educational purposes
9. a public library making photocopies (not more than 3) of a book that is not available for sale in India
10. an amateur club or society performing a literary, musical or dramatic work for a non-paying audience or for a religious institution
If your copyrighted work is reproduced without your permission and if such reproduction is not covered under the “fair dealing” exception, it amounts to copyright infringement.
To establish that your copyright has been infringed, you have to prove that -
1. the infringing work is substantially similar to your copyrighted work AND
2. the person who created or developed the infringing work actually copied your work
In the event of your copyright being infringed, you can approach the
courts and seek:
1. an order of injunction to prevent the continuation of the infringement
2. compensation for the losses that you have suffered
3. an account of the profits made by the infringer and claim such amounts
4. delivery of all infringing copies of the work which are in the possession of the infringer
You can also initiate criminal action against the infringers, which could result in imprisonment and/or imposition of fine. Criminal remedies are an effective mechanism for enforcement of your copyrights and are very often used in efforts to curb software piracy. A case in point is the civil raids conducted by NASSCOM in association with Business Software Alliance (BSA) to reduce software piracy. Having said that trade associations in your industry or segment are also good options to help in the area of copyright. Please also note that we have only covered the Indian legal point of view and not the global perspective. Considering the cross-border nature of many businesses it would be in the respective organization’s interest to assess the need to evolve a global IPR protection plan.
(The article is written by Sandhya of Indialawinfo.com, a legal portal based out of Bangalore. More queries can be addressed to: legal@businessgyan.com)
