Origin And Development Of Copyright Law

Introduction

This chapter predominantly deals with the analysis of the Origin, History and Development of the Laws related to the protection of Intellectual Property in a Copyrighted Work.Intellectual property is the inventive, creative or ingenious work of human mind and intelligence. This property is primarily incorporeal or intangible in nature but may be reduced to pieces of information or data which can be incorporated into tangible objects and then may be disseminated across the world or may be converted in a digital form to facilitate the above mentioned purpose.

A right to intellectual property is an invisible or intangible right to a product of man's brain or mind such as a new invented product i.e. property of the mind as against a right for material things or tangibles i.e. goods such as a right to the invented goods. An Intellectual Property is at times described as 'knowledge goods'. Intellectual Property Rights protect the interests of innovators and creators by giving them rights over their intellectual creations.

The core impetus behind enactment of specific laws for the protection of intellectual property in copyright is to promote the progress in arts, science, literature and other creative works. It could be further stated that this protection for copyright also encourages and rewards ingenious forms of creativity.

Copyright is a form of intellectual property that provides legal protection against unauthorized copying of the producer’s original expression in products such as art, music, books, articles, and software. Like other forms of intellectual property, copyright is directed to the protection of cultural creations that are non-rivalrous and non-exclusive in nature.

Copyright is considered to be a natural and civil right although it is mainly a creature of statute. It is identified as a Property Right across almost all jurisdictions. In Jefferys (C) v. Boosey (T), Erle, J., observed: “........that the claim is not to ideas, but to. the order of words, and that this order has a marked identity and a permanent endurance. Not only are the words chosen by a superior mind peculiar to itself, but in ordinary life no two descriptions of the same fact will be in the same words, and no two answers to your Lordships' questions will be the same. The order of each man's words is as singular as his countenance, and although if two authors composed originally with the same order of words, each would have a property therein, still the probability of such an occurrence is less than that there should be two countenances that could not bo discriminated. The permanent endurance of words is obvious, by comparing the words of ancient authors with other works of their day; the vigour of the words is unabated; the other works have mostly perished. It is true that property in the order of words is a mental abstraction, but so also are many other kinds of property.........” The Madras High Court in Sulamangalam R. Jayalakshmi and Another v. Meta Musicals, Chennai and Others, stated that “Copyright Law is to protect the fruits of a man’s work, labour, skill or test from annexation by other people.”The Bombay High Court in Aamir Raza Husain and Another v. Cinevistaas Limited and Others, observed that “the idea in providing the copyright a statutory protection is to encourage art and originality and not to stifle it”Intellectual Property is primarily classified into two major branches:

Copyright

The Law of Copyright generally provides that the owner of copyright has the right to reproduce the work in any material form; to issue copies of the work to the public; to perform the work in public; or communicate it to the public; to make any cinematographic film or sound recording in respect of the work; to make any translation of the work; to make any adaptation of the work; etc.

Industrial Property

Industrial Property is a kind of intellectual property and thus relates to creations of the human mind. Such creations are mainly inventions and industrial designs. Inventions are new solutions to technical problems and Industrial designs are aesthetic creations determining the appearance of the Industrial products. Apart from this, industrial property includes trademarks, service marks, layout-designs of integrated circuits, commercial names and designations, as well as geographical indications, Plant Varieties, Trade Secrets, etc.The Intellectual Property plays an instrumental role in promoting the progress and growth of any nation and therefore its protection and promotion is sine qua non for economic, social and cultural development of any country. The achievement of prosperity and affluence by any developed country is to be largely attributed to the exploitation of their intellectual property.

The law of Copyright is a branch of the law relating to intellectual property. The latter includes also the law relating to patents, trademarks and industrial designs. All these differ in their essentials.

In particular, the benefit with respect of copyright protection is to reward and encourage the artists or authors whose labour reaps the work which is then disseminated in public domain for its utilization and consumption. The primary object of the copyright law is to provide the benefits derived by the genius and skill of individual to the public and also to provide incentive to the artists for further efforts to produce useful works. In Miller v. Taylor, Willes, J., stated:“It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most usual way of doing it, is, by securing to them the property of their own works. Nobody contributes, who is not willing; and though a good book may be run down, and a bad one cried up, for a time; yet sooner or later, the reward will be in proportion to the merit of the work. A writer’s fame will not be the less, that he has bread, without being under the necessity of prostituting his pen to flattery or party, to get it. He who engages in a laborious work, which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family”

Copyright law is concerned with the negative right of preventing the copying of physical material existing in the field of literature and arts. Patent, Trade mark and design legislation give to the registered proprietor an exclusive right to the registered material, even against a person who has reproduced such material innocently and from an independent source.

The Law passed to protect Copyright seeks to maintain a balance between the interest of the owner of the copyright in protecting his work and on the other hand the interest of the public to have access to that work. The extent of protection to which the owner is entitled vis-à-vis his work for which he has obtained copyright and the interest of the public is a matter which would depend upon the relevant statutory provisions.The Supreme Court in Eastern Book Company v. D.B. Modak observed, with respect of copyright, that:“…Copyright is a right to stop others from exploiting the work without the consent or assent of the owner of the copyright. A copyright law presents a balance between the interests and rights of the author and that of the public in protecting the public domain, or to claim the copyright and protect it under the copyright statute. One of the key requirements is that of originality which contributes, and has a direct nexus, in maintaining the interests of the author as well as that of public in protecting the matters in public domain. It is a well-accepted principle of copyright law that there is no copyright in the facts per se, as the facts are not created nor have they originated with the author of any work which embodies these facts. The issue of copyright is closely connected to that of commercial viability, and commercial consequences and implications.”

History

The perception of ‘Creativity’ is only the trait of human beings. Invention, discovery and creation are restricted to the human race, as an intelligent being only humans are capable of creating something new. They can be artists, authors, directors, composers, designers, computer software programmers, etc, for the creation of their original works. Now, these original works needed legal protection as only the creators were alone entitled to enjoy the exclusive rights over their work and authorize others to do certain acts in relation to that work.Copyright is the right to prevent copying, or the issuing copies of the work to the public, or the right to prevent the making for sale or selling infringing copies of the work. It is incorporeal property, distinguishable from physical ownership of the work in which copyright subsists. It is the right to make copies of the work, to publish the work and to do various other acts.

Copyright constitutes an essential element in the development process of a country. The enrichment of the national cultural heritage depends directly on the level of protection afforded to literary, dramatic, musical and artistic works, cinematograph films and sound recordings. The higher the level, the greater the encouragement for the authors to create; the greater the number of a country’s intellectual creations, the higher its renown. In the final analysis, encouragement of intellectual creation is recognized as one of the basic prerequisites of all social, economic and cultural development. In prehistoric times, the artists, creative authors, musicians and composers wrote or performed their work for prominence and recognition rather than to make a living, thus, the question of copyright never arose. But, as time passed, money started gaining significance, now the authors wanted to restrict their works as to them and earn money out of that work.

The importance of copyright was recognised only post-printing press invention by a German named Gutenberg in 1436, which enabled the reproduction of books in large number possible. Earlier, hand copying was the only method for reproduction of any literary work but the invention of printing paved the path for copyright protection as now the literary works could be duplicated in bulk by the use of machines and the authors needed protection from such unwarranted duplication.In England, the concept of copyright was recognised, mainly, by the common law. The first Copyright Protection Act in England, which was as a matter of fact first Copyright Protection Act in the world, passed in 1709 called the “Statute of Anne” which provided that the author of any book already printed will have sole right over printing of that particular book. But, these exclusive rights were not provided in perpetuity. In Donaldson v. Beckett, 1774, the United Kingdom House of Lords denied the continued existence of a perpetual common law copyright and held that copyright was a creation of statute and could be limited in its duration.

A number of statutes were adopted thereafter to give effect to the copyright protection. In 1911, the Copyright Act was adopted which substantially codified the law and repealed some twenty legislations on the subject. Common law copyright was also abolished by the Copyright Act, 1911.

In United States, the revolution of 1776 gave a strong nationalistic flavor to the English concept of copyright and in 1790, the Copyright Act was passed. The Copyright Act has been updated several times, including, notably, the Copyright Act of 1976. The concept of copyright ultimately permeated the whole English speaking world. However, the norms of copyright were not universal as the practice of copyright was distinct in common law and civil law countries.There was a need for harmonisation of copyright laws at the global level which led to the formation and adoption of the ‘International Convention for the Protection of Literary and Artistic Works’ also known as “Berne Convention” on September 9, 1886. The Berne convention is the first and the oldest international treaty in the field of copyright which has been revised several times – ‘at Berlin in 1908; at Rome 1928; at Brussels in 1948; at Stockholm in 1967; and at Paris in 1971 in order to meet the various new challenges posed by the technological developments.’

Today, the norms of traditional copyright and neighbouring rights are embodied in an interconnecting network formed by the Berne convention, Universal Copyright Convention, the WIPO Copyright Treaty, Geneva , Brussels Convention and the WIPO Performances and Phonograms Treaty. The TRIPS agreement provides for the substantive and procedural norms of both copyright and neighbouring rights.

During the past three centuries great controversy has always been associated with the grant of property rights to authors, ranging from the notion that cultural creativity should be rewarded with perpetual rights, through the complete rejection of any intellectual property rights at all for copyrightable commodities. However, historically, the primary emphasis has been on the provision of copyright protection through the formal legal system. Europeans have generally tended to adopt the philosophical position that authorship embodies rights of personhood or moral rights that should be accorded strong protections. The American approach to copyright has been more utilitarian: policies were based on a comparison of costs and benefits, and the primary emphasis of early copyright policies was on the advancement of public welfare. However, the harmonization of international laws has created a melding of these two approaches. The tendency at present is toward stronger enforcement of copyrights, prompted by the lobbying of publishers and the globalization of culture and commerce. Technological change has always exerted an exogenous force for change in copyright laws, and modern innovations in particular provoke questions about the extent to which copyright systems can respond effectively to such challenges.

In India, the earliest statutory law on copyright was Indian Copyright Act of 1847, which was enacted during the East India Company’s regime. The Act passed by Governor-General of India affirmed the applicability of English copyright law to India. The Copyright Act, 1911 while repealing earlier statutes on the subject was made applicable to all the British colonies including India. In 1914, the Indian Copyright Act was enacted which modified some of the provisions of Copyright Act, 1911 and added some new provisions to it to make it applicable to India. The Indian Copyright Act, 1914 remained applicable on India until it was replaced by the Copyright Act, 1957.

Development

The concept of “Copyright” have assumed significance in the context of contemporary, scientific, economic, social, political and legal environment not only in India but also the entire world. The copyright law, today, not only protects the rights of the copyright owner and neighboring rights but also deals with the subject of public interest and tries to strike a balance between the two in this digital environment. The copyright law, thus, covered a long journey from its earlier days when it used to protect only literary and artistic works, and has entered a new world full of technological innovations e.g. computers, audio recording, video recording, reprography, cable television, satellite broadcasting and most recently Internet have posed challenges to copyright laws from time to time and forced the nations to amend their laws. If an intangible right whose situs (i.e. Site; position; location; the place where a thing is, considered) has to be determined is a statutory right and owes its existence to a statute enacted by a particular country, it