RV Institute of Technology & Management®

Rashtreeya Sikshana Samithi Trust

RV Institute of Technology and Management®

(Affiliated to VTU, Belagavi)

JP Nagar, Bengaluru - 560076

Department of CSE/ISE/ECE/ME

Course Name: RESEARCH METHODOLOGY & IPR

Course Code: BRMK557

V Semester

2022 Scheme

Prepared By:

Dr. Solaimuthu C and Dr. Anitha J,

Faculty, RVITM

Email: [Link]@[Link]
[Link]@[Link]
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MODULE -IV

Copy Rights, Related Rights and Trademarks

Copyrights ‘refer to the legal rights provided by law to the original creator of the work in the fields
of literature and computer software. The Related Rights ‘encompass the author ‘s work in the fields
of dramatics, sound recording, film/video recordings, paintings, architecture, etc. Copyrights and
Related Rights are one of the categories of IP and governed by the Copyright Act, 1957 of India.
This Act provides rights of reproduction, communication to the masses, adaptation and translation
of the work.

The words ‘author ‘and‘ work ‘need to be understood from the perspective of Copyrights. The
term ‘author’ refers to an individual who develops the content (of work). The author can be a writer
(literary work), computer programmer (software), composer (musical work), producer (cinema
films, sound recording), photographer (photos). The term ‘work’ is a task undertaken in the fields
of literature, dramas, music, artistic, cinematograph film and sound recording.

Classes of Copyrights

In India, following classes of Copyrights exist:

 Literature: Books, Essays, Research articles, Oral speeches, Lectures, Compilations,

Computer programme, Software, Databases.
 Dramatics: Screenplays, Dramas.
 Sound Recordings: Recording of sounds regardless of the medium on which such recording
is made e.g. a Phonogram and a CD-ROM.
 Artistic: Drawing, Painting, Logo, Map, Chart, Photographs, Work of Architecture,
Engravings, and Craftsmanship.

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 Musical: Musical notations, excluding any words or any action intended to be sung, spoken
or performed with the music. A musical work need not be written down to enjoy Copyright
protection.
 Cinematograph Films: Cinematograph Film ‘is a visual recording performed by any
medium, formed through a process and includes a sound recording. For example, Motion
Pictures, TV Programmes, Visual Recording, Sound Recording, etc.

Criteria for Copyright

To qualify for Copyright protection, a work must exist in some physical (or tangible) form. The
duration of the existence of the physical form may vary from a very short period to many years.

Virtually any form of expression which can be viewed or listened to is eligible to qualify as
Copyright. Even hurriedly scribbled notes for an impromptu speech are considered copyrightable
material. The Copyright work has to be expressed by the creator in his frame of thought. In other
words, the work has to be original i.e. the author created it from independent thinking void of
duplication. This type of work is termed as an Original Work of Authorship (OWA). It may appear
similar to already existing works but should not be the same. The original work may lack quality
or quantity or aesthetic merit or all these parameters; still, it will pass the test of copyrightable
work.

In addition to originality for the work, Copyright protection also requires at least some creative
effort on the part of the author. There is no minimum limit for the extent of creativeness. It is a
subjective matter. The minimal level of creativity needed for Copyright protection depends on the
judgment of the evaluator (adjudicated by the Office of Registrar of Copyright).

As an example, mere changing the dimensions of a book will not be granted Copyright protection.
Similarly, an address book of alphabetically arranged telephone numbers does not qualify for
Copyright protection as it involves a straightforward alphabetical listing of phone numbers rather
than a creative selection of listings.

Ownership of Copyright

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The Copyright laws clearly state the ownership of Copyright.

The person who created the work is considered as the first (original) holder (owner) of the
Copyright.

In case the author is an employee and has been contracted to do the work by a proprietor (of the
company/firm/society/organization, etc.), the owner of the Copyright shall be the proprietor.

The government will be the primary owner of the government work in the absence of any kind of
arrangement.

The person delivering a speech is the first owner of the Copyright. To obtain permission to use
copyrighted material, a request for the same should be made to the legal owner (of the copy righted
material), which could be the original author, the legal heir (in case of the death of the author),
publisher, etc.

The request must mention the following:

 Title, author and/or editor, and edition.

 Precise material to be used.
 The number of copies.
 The purpose of the material e.g. educational, research, etc.
 Form of distribution e.g. hard copy to classroom, posted on the internet.
 Whether the material is to be sold e.g. as part of a course pack.

Copyrights of the Author

The Copyrights of the creator/author are legally protected under Section 14 of the Copyright Act,
1957. The content (i.e. work) created by the author cannot be used or published by anyone without
the author ‘s consent.

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Copyrights provide exclusive rights to the author in the areas of publication, distribution, and
usage. A Copyright owner enjoys two types of rights i.e. Economic Rights (or Proprietary Rights)
and Moral Rights (or Personal Rights). Economic Rights are associated with financial benefits
accruing from the sale of copyrights. As per the Act,

 Copyright owners can authorize or prohibit:

 Reproduction of the work in any form, including printed publications or sound recordings.
 Distribution of copies of the work.
 Public performance of the work.

 Broadcasting/communicating the work to the public.

 Translating the work into other languages.
 Adaptation of the work, such as converting a novel into a screenplay.

Moral Rights include ‘Right of Paternity ‘and‘ Right of Integrity ‘. The ‘Right of Paternity ‘- even
if the Copyright has been licensed to another party, the original author of the work retains the right
to claim authorship i.e. the name of the author/s will remain even though Copyrights have been
transferred to another party e.g. a book publisher. The ‘Right of Integrity ‘- the original author has
the right to prevent misuse of the work e.g. alterations/additions/deletions in work resulting in
misrepresentation of the said work or harming the honor and reputation of the author.

It is pertinent to mention that for a work, there can be more than one rights holder, for instance, a
musical sound recording has many rights holders, such as the lyricist, music composer, singer,
musicians and sound recorders.

Copyright Infringements

As per the Copyrights Acts, 1957, the following acts are regarded as an infringement of
Copyrights:

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Making copies for sale or hire or selling or letting them for hire without permission.

 Permitting any place for the performance of owned work (in public) where such
performance constitutes an infringement of Copyright.
 Distributing infringing copies for trade or to such an extent to affect the interest of the
owner of the Copyright prejudicially.
 Public exhibition of infringing copies for trade purposes.
 Importation of infringing copies.
 Translating a work without the permission of the owner.

Liability of Owner of an Auditorium/Hall

The owner of an auditorium/hall is liable for punishment if he knowingly allows his premises to
be used for communication of illegal copyright material (songs, music, dramas, etc.) to the public.

If a person permits for profit any place to be used for communicating the work to the public, where
such communication establishes an infringement of the Copyright unless he was not aware of and
had no reasonable ground for believing that such communication to the public would be an
infringement of Copyright, he will be deemed to have committed an offence under the Copyright
Act.

Copyright Infringement is a Criminal Offence

According to Section 63 of the Copyright Act, 1957, if any person knowingly infringes the
Copyright, he qualifies for the criminal offence. The punishment awarded for the infringement (of
Copyright) is imprisonment for six months with the minimum fine of ₹ 50,000/-. In case of a

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second and subsequent conviction, the minimum punishment is imprisonment for one year and a
fine of ₹ 1,00,000. There is a dedicated IP division to deal with Copyright cases. Also, there is a
Copyright Board constituted by the Central Government in 1958 to adjudicate certain claims about
Copyright.

Copyright Infringement is a Cognizable Offence

A police officer (rank of a sub-inspector or higher) can confiscate the infringed Copyright material
without issuing a warrant and produce the same in the court of law.

Fair Use Doctrine

Any person not possessing a valid license from the owner of the Copyright is not entitled to exploit
the said work. However, Section 52 of the Copyright Act, 1957, provides for certain exceptions to
the infringement of Copyright. As per the rule of law, Copyrighted materials cannot be used by
anybody without the proper consent of the legal owners (of the Copyright). However, limited use
of Copyrighted materials for teaching and research purposes is legally permitted, under ‗The Fair
Use Doctrine‘, which comprises of the four-part test: The character of the use - use of the work is
purely educational, non-profit and personal. Nature of the work - The use of work is factual in
nature and not imaginative.

Amount of the portion to be used - permission is not needed if only a small portion of Copyright
protected material is to be used. However, this parameter is debatable now.

Impact of use on the value of the Copyrighted material - If a small portion of the work is copied
and is not affecting the author‘s economic and moral rights, it will be excused from the
infringement.

Detailed information on the examples of the Fair Use Doctrine can be accessed from the official
website ([Link] [Link]).

A few examples are listed below:

 If the Copyrighted work is used for personal use i.e. studies or research.
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 Quotation mentioned in the Copyrighted work.

 Reporting of current events in the media, such as newspapers, magazines or
radios/television. Reproduction of the work by teachers or scientific researchers.
 Performance is free of charge by government officials in the performance of their duties
e.g. reproduction of any work for a judicial proceeding or a report of a judicial proceeding.
 Use of any work prepared by the Secretariat of a Legislature.
 Use of the work in a certified copy made or supplied in accordance with any law for the
time being in force.
 Making three or less than three copies of a book (including a pamphlet, sheet of music,
map, chart or plan).
 Bonafide religious ceremony, including a marriage function.

Copyrights and Internet

The twenty-first century is an era of digitization. The Copyrighted data is quickly transmitted via
the internet. This method of data transmission has brought amendments to the existing Copyright
laws. One should be careful of Copyright/fair use principles when downloading material from the
internet. There is growing concern about the ability to pull Copyrighted material from the internet
without permission. Note that material may have been placed on the internet without the author‘s
permission.

In general, posting material on the internet by the Copyright owner gives an internet user the right
to use that material for his personal use, but he cannot use the work for commercial purposes.
Electronic distribution of a Copyrighted work should mention the statement that This work is
protected by Copyright laws and is provided for educational instruction only. Any infringing use
may be subject to disciplinary action and/or civil or criminal liability as provided by law”.

As per Section 2(o) of the Copyright Act, 1957, ‘Literary Work ‘includes computer programmes,
tables and compilations, including computer databases. It is mandatory to supply ‘Source Code‘
and ‘Object Code ‘along with the application for registration of Copyright.

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Non-Copyright Work

The works not under the jurisdiction of Copyrights are as follows:

 The ideas, concepts, and principles themselves cannot be protected under Copyright; only
the form in which they are expressed can be copyrighted.
 Facts, such as scientific or historical discoveries, are not copyright protected. Any fact a
person discovers in the course of research cannot be Copyright protected.
 For example, an author of a book on Buddhism ‘takes ten-fifteen years to gather all the
necessary materials and information for his work.
 At a great expense, the author travels to various museums, libraries and excavations sites.
However, after the book is published, anyone is free to use the underlying facts, provided
they express the information on their own.
 Copyright does not protect titles, names, slogans, short phrases, short word combinations,
methods, or factual information.
 Certificates are not considered as Copyrightable subject matter as there is not much scope
for creativity.
 Digitally created works and Copyrighted works transformed into a digital format and
placed on the internet are Copyright protected.
 The Copyright registration for a website, as a whole, is not possible. However, different
components/rudiments of a website can be granted Copyright registration e.g. computer
programmes/software, compilations including computer databases (‘literary works ‘); photographs,
paintings, diagram, map, chart or plan (‘artistic works ‘); and works consisting of music including
graphical notation of such work (‘musical works ‘). However, a separate application for each
component of work has to be filed for seeking Copyright registration.
 A computer or mobile App qualifies for Copyright registration. An Application is a complete, self-
contained computer program that is designed to perform a specific task. An App usually has
dynamic content and is designed for user interaction. It may be used directly or indirectly in a
computer or handheld electronic device.

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 If someone swipes your picture/song/video from the internet and uses it for their purposes, it is a
Copyright infringement. By the way - the same is true if you nick some else ‘s material for your
purposes.

Copyright Registration

It is not necessary to register a work to claim Copyright. Once a work is created via any medium,
the work receives automatic Copyright safety. In other words, there is no formal request to be
submitted to the office of the Copyright, for acquiring Copyright. Copyright registration does not
confer any rights. It is merely a prima facie proof of an entry in respect of the work in the Copyright
register maintained by the Registrar of Copyrights. The certificate of registration serves as prima
facie evidence in a court in cases of disputes relating to ownership or creation of Copyright,
financial matters, transfer of rights, etc.

It is advisable that the author of the work registers for Copyright for better legal protection. In
India, Copyrights matters, including Copyright registration, are administered under the Copyright
Act, 1957 and Copyrights Rule, 2013. Below mentioned are prominent forms for copyright
registration ([Link]

FORM – XIV

Application for Registration of Copyright

To
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The Registrar of Copyrights, Copyright Office,

Boudhik Sampada Bhawan, Plot No. 32, Sector 14, Dwarka, New Delhi-110078
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SATEMENT OF PARTICULARS

S. NO Attributes Details
1. Registration number (To be filled in the Copyright
Office)
2. Name, phone, email, address and nationality of the
applicant
3. Nature of the applicant‘s interest in the Copyright of
the work
4. Class and description of the work
5. Title of the work
6. Language of the work
7. Name, address and nationality of the author and, if
the author is deceased, the date of his decease
8. Whether work is published or unpublished
9. Year and country of first publication and name,
address and nationality of the publishers
10. Years and countries of subsequent publications, if
any, and names, addresses and nationalities of the
publisher
11. Names, address and nationalities of the owners of the
various rights comprising the Copyright in the work
and the extent of rights held by each, together with
particulars of assignment and licenses, if any
12. Names, addresses and nationalities of other
persons, if any, authorized to assign or license the
rights comprising the Copyright
13. If the work is an ―artistic work‖, the location of the
original work, including name, address and
nationality of the person in possession of the work. (In
the case of an architectural work, the year of
completion of the work should also be shown)
14. If the work is an ‗artistic work‘ which is used or is
capable of being used in relation to any goods or
services, the application shall include a certificate
from the Registrar of Trade Marks in terms of the
proviso to sub-section (1) of section 45 of the
Copyright Act, 1957.]
15. If the work is an ―artistic work‖ whether it is
registered under the Designs Act 2000. If yes give
details.
16. If the work is an ―artistic work‖ capable of being
registered as a design under the Designs Act 2000,
whether it has been applied to an article though an

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industrial process and , if yes, the number of times it

is reproduced.
17. Remarks, if any Source:
[Link]

[Link]
Date

STATEMENT OF FURTHER PARTICULARS

(For Literary, including Software, Dramatic, Musical and Artistic Works only)

Sl NO Attributes Details
Attributes
1 Is the work to be registered
a) An original work?
b) Translation of a work in the public domain?
c) A translation of a work in which Copyright
subsists?
d) An adaptation of a work in the public domain?
e) An adaptation of a work in which Copyright
subsists?
2 If the work is a translation or adaptation of a work in
which Copyright subsists:
a) Title of the original work.
b) Language of the original work.
c) Name, address and nationality of the author of
the original work and, if the author is deceased,
the date of his decease.
d) Name, address and nationality of the publisher,
if any, of the original work.
e) Particulars of the authorization for a translation
or adaptation including the name, address and
nationality of the party authorizing.
Remarks, if any.

[Link]
Date

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Judicial Powers of the Registrar of Copyrights

The Registrar of Copyrights has the powers of a civil court when trying a suit under the Code of
Civil Procedure in respect of the following matters:

 Summoning and enforcing the attendance of any person and examining him on oath.
 Requiring the discovery and production of any document.
 Receiving evidence on affidavit.
 Issuing commissions for the examination of witnesses or documents.
 Requisitioning any public record or copy thereof from any court or office.
 Any other matters which may be prescribed.

A duly filled application (Form XIV) is submitted to the Copyright Office at the following address:
The Registrar of Copyright, Plot no. 32, Boudhik Sampada Bhawan, Sector 14, Dwarka, New
Delhi - 110075. The application can be submitted by post or online registration through the ‗E-
filing facility‘ ([Link]). Any person who is either an author of the work or assignee
of the concerned work can file an application for Copyright.

Usually, it takes around 2-3 months to get the work registered by the Copyright Office. After
applying, there is a mandatory waiting period of 30 days. If any person has any objection to the
claim/s made in the application, he can contact the office of the Registrar of Copyrights. After
giving an opportunity of hearing to both the parties, the Registrar may decide the case in favour or
against the author of the work. Once the objections (if any) are cleared, the application is evaluated
by the examiners. If any doubts/queries are raised, the applicant is given ample time (around 45

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days) to clear these objections. The elements included in Copyright filing to grant are depicted
below in the flow chart:

Figure 2.6: Flow chart for the process of Copyright registration.

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S. No. Name of Form Form No.

1. Application form for registration of Form-XIV

Copyright

2. Application form for registration of changes Form-XV

in particulars of Copyright

3. Registration of a Copyright Society Form-VIII

4. Application form for the relinquishment of Form-I

Copyright

Fee Structure

For each work, a separate application form needs to be submitted, along with the requisite fee.
The fee is not reimbursable in case the application for registration is rejected.

Table 2.6: Fee structure for Copyrights.

Attribute Fee (₹ )

For an application for registration or Copyright 500/- per work

Literary, Dramatic, Musical or Artistic work

For an application for registration of Copyright in a 5,000/-

Cinematograph Film

For an application for registration of Copyright in a 2,000/-

Sound Recording

Provided that in respect of a Literary or Artistic 2,000/-

work which is used or is capable of being used in
relation to any goods or services

Making any change in Literary, Dramatic, Musical 200/-

or Artistic work

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Provided that in respect of a Literary or Artistic 1,000/-

work which is used or is capable of being used in
relation to any goods or services

For an application for registration of change in 2,000/-

particulars of Copyright entered in the Register of
Copyrights in respect of Cinematograph Film

For an application for registration of changes in 1,000/-

particulars of Copyright entered in the Register of
Copyrights in respect of Sound Recording

For an application for prevention of importation of 1,200/-

infringing copies per place of entry

Copyright Symbol

It is not necessary to place the Copyright symbol © with your name and ‗year created‘ near your
published or printed materials - but if you do, it‘s easier to nail someone for infringement on your
Copyright if you go to court. The important things which may be mentioned as a Copyright mark
on Copyright creation are:

 The Copyright symbol © (the letter C in a circle), or the word. ‗Copyright‘, or the
abbreviation ‗Copr.‘

 In the case of compilations or derivative works incorporating previously published

material, the year with the date of the first publication of the compilation or derivative work
should be mentioned. The year date may be omitted for pictorial, graphic, sculptural work,
greeting cards, postcards, stationery, jewellery, dolls and toys.

 The name or the abbreviation by which the name can be recognized of the owner of the
Copyright, or a generally known alternative designation of the owner can be mentioned.

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 The elements for sound recordings generally require the same three elements, except the
symbol is ℗ (the letter P in a circle) instead.

Validity of Copyright

In general, the validity of Copyright is for 60 years. This period starts either from the year after
the death of the author (in case of literature, dramatic, musical and artistic works) or from the date
of publication of the work (in case of cinematograph films, sound recordings, photographs,
posthumous publications, works of government and works of international organisations).

Copyright Profile of India

A comparative five years (2015-20) study revealed a gradual increase in the number Copyright
applications in the first four years of the study, with a maximum number of applications (21,905)
recorded in the 2019-20 period (Fig. 2.7). The number of applications examined was
maximum (34,388) in 2017-18. However, it tapered down to 22,658 in 2018-19 and 19,460 in
2019- 20. A similar trend was observed in the number of Copyright registrations, with a peak
(19,997) observed in 2017-18.

Figure 2.7: Copyrights profile (India) for the period 2015-20.

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Copyright and the word ‘Publish’

A work is considered published when it is in the public domain on an unrestricted basis. For
example, a person writes an article called ‗Life in Himalayas‘ and distributes it to a few individuals
and/or societies/organizations with a restriction not to disclose the contents of the article. ‗Life in
Himalayas‘ has not been ―published‖ in the Copyright sense. If the author removes the condition
of non- disclosure or posts of this article on the internet (i.e. public domain), it would be considered
as published. It is to be noted that both published and unpublished works can be registered
under Copyright.

Transfer of Copyrights to a Publisher

The original authors of the Copyrighted work may not have the wherewithal to widely publicise
their work. Usually, they transfer their rights to publishers for financial benefits, which could be
a one-time lump sum amount or royalties or a combination of the two. However, transferring
Copyrights unconditionally to the publishers (or anybody else) may have some repercussions for
the owner of the Copyright. A publisher may prevent author/s from displaying their articles on
the institute‘s websites. The new owner of Copyright may not even allow the author to revise his

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work. In other instances, a publisher might print an insufficient number of hard copies and also
does not show interest in upload2.2.20. Copyrights and the Word ‘Adaptation’

In the world of Copyright, the word ‗Adaptation‘ signifies the creation of a similar work based
upon contemporary work. The Copyright Act defines the following actions as adaptations:

a) Transformation of a dramatic work into a non-dramatic work.

b) Changing a literary or artistic work into a drama.

c) Re-arrangement of a literary or dramatic work.

d) Depiction through pictures of a literary or dramatic work.

e) The making of a cinematograph film of a literary or dramatic or musical work.

Copyrights and the Word ‘Indian Work’

‗Indian work‘ means a literary, dramatic or musical work provided

 The author of the work is an Indian citizen.

 The work is first published in India.

 In the case of an unpublished work, at the time of the making of the work, the author of the
work was a citizen of India.

Joint Authorship

‘Work of Joint Authorship‘ means a work produced by the collaboration of two or more authors
in which the contribution of one author is not distinct from the contribution of the other author or
authors.

Copyright Society

Many a time, authors and other owners of Copyrights are either unable or lose track of all the uses
of their work, including the collection of royalties, infringement issues, etc. To overcome these

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hurdles, Copyright Societies have cropped up. As per Section 33 of the Copyright Act, 1957, a
Copyright Society is a registered collective administration society formed by authors and other
owners of the Copyright. Society can perform the following functions:

 Keep track of all the rights and infringements related to their clients.

ing the soft copy of the work on the internet. Hence, one must be careful in signing an agreement
with the publishers. The author may not transfer all the legal rights bestowed upon him as an
author. An agreement may be signed permitting only the print and sale of hard copies by the
publishers while retaining digital rights for the said work. An author may also put a time limit for
the printing and sale of the books/articles, etc.

Before the digital era, authors used to rely completely on publishers for the dissemination of their
work. However, in the internet era, the dependency on publishers has almost diminished. The
author is in a position to bypass the publishers and bring his work in to the public domain. But this
freedom cannot be enjoyed by those who are already under the publishing contract.

Even though the author has completely and exclusively licensed out his work, the Copyright Act
has a provision under ‘termination of transfer’ to reclaim his Copyright. Under this provision,
certain Copyright agreements can be terminated after 35 years of the agreement. This statutory
termination right applies even though it is not incorporated in the agreement. It is strongly advised
that authors must apply their mind while signing the Copyright agreement.

 Issue licences in respect of the rights administered by the society.

 Collect fees in pursuance of such licences.

 Distribute such fees among owners of Copyright after making deductions for the
administrative expenses.

A Copyright Society can be formed by a group of seven or more copyright holders. The term of
registration of a Copyright Society is for five years. The registered Copyright Societies in India
are:

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 Society for Copyright Regulation of Indian Producers for Film and Television (SCRIPT)
135 Continental Building, Dr. A.B. Road, Worli, Mumbai 400 018, (for cinematograph
and television films).

 The Indian Performing Right Society Limited (IPRSL), 208, Golden Chambers, 2nd Floor,
New Andheri Link Road, Andheri (W), Mumbai- 400 058 (for musical works).

 Phonographic Performance Limited (PPL) Flame Proof Equipment Building, B.39, Off
New Link Road, Andheri (West), Mumbai 400 053 (for sound recordings).

Copyright Board

The Copyright Board is a regulatory body constituted by the government, to perform judicial
functions as per the Copyright Act of India. The Board comprises of a Chairman and members (2-
14) to arbitrate on Copyright cases. The Chairman of the Board is of the level of a judge of a High
Court. As per the Act, the Board has the power to:

 Hear appeals against the orders of the Registrar of Copyrights.

 Hear applications for rectification of entries in the Register of Copyrights.

 Adjudicate upon disputes on the assignment of Copyrights.

 Grant compulsory licenses to publish or republish works (in certain circumstances).

 Grant compulsory license to produce and publish a translation of a literary or dramatic

work in any language after seven years from the first publication of the work.

 Hear and decide disputes as to whether a work has been published or about the date of
publication or the term of Copyright of a work in another country.

 Fix rates of royalties in respect of sound recordings under the cover-version provision.

 Fix the resale share right in original copies of a painting, a sculpture or a drawing and
original manuscripts of a literary or dramatic or musical work.

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Copyright Enforcement Advisory Council (CEAC)

In 1991, the Government set up a CEAC to review the progress of enforcement of the
Copyright Act periodically and advise the Government regarding measures for improving the
enforcement of the Act. The term of the CEAC is three years. The CEAC is reconstituted
periodically after the expiry of the term.

International Copyright Agreements, Conventions and Treaties

Any creative work is not protected and enforced automatically worldwide because Copyright
laws are territorial by nature i.e. Laws are valid only in the country in which they have been
created. To secure protection to Indian works in foreign countries, the author needs to apply
separately to each country or through dedicated international ‗Conventions on Copyright and
Neighboring (related) Rights‘, provided a country is a member of such Conventions. India is a
member of the following Conventions:

 Berne Convention for the Protection of Literary and Artistic Works, 1886.
([Link]

 Universal Copyright Convention, 1952.

([Link] ve-
industries/copyright/universal-copyright-convention/).

 Rome Convention for the Protection of Performers, Producers of Phonograms and

Broadcasting Organizations, 1961. ([Link]

 Multilateral Convention for the Avoidance of Double Taxation of Copyright Royalties,

1979. ([Link]

00%20AM/Ch_XXVIII_01_ap.pdf).

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 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, 1995.

([Link]

In India, Copyrights of foreign authors, whose countries are members of the Berne Convention
for the Protection of Literary and Artistic Works (1888), Universal Copyright Convention
(1952) and the TRIPS Agreement (1995) are protected through the International Copyright
Order.

Interesting Copyrights Cases

David vs. Macaques, Indonesia, 2011 - In 2011, a UK-based photographer David Slater put
his camera on a tripod in the wildlife sanctuary to click the photograph of Macaques monkeys.
The Macaques were very curious about the equipment and they found the flashlight
fascinating. One monkey clicked a selfie photograph which became very famous and legally
controversial on the matter of Copyright. Theoretically, the monkey is the holder of Copyright
as he clicked the photo. Practically, David Slater was the claimant of the Copyright. The
dispute entered judicial quarters between People for the Ethical Treatment of Animals (PETA)
and David Slater. Now, the settlement has been concluded. The photographer i.e. David Slater
withholds the Copyright of the picture for having a substantial contribution, but he would pay
25% of the royalty share to the wildlife sanctuary where the monkey lives ([Link]
[Link]/ wipo_magazine/en/2018/01/article_0007.html).

‘Happy birthday to you’ case law - According to the Guinness World Records, 1998, it is the
most recognized song in the English language. The melody of ‗Happy Birthday to You‘
originates from the song ‗Good Morning to All‘, which has traditionally been attributed to
American Sisters, namely Patty Smith Hill and Mildred J. Hill, in 1893. The sisters composed
the melody of ‗Good Morning to All‘ to make it more interesting for the children. In 1935,
Summy Company registered the Copyright on the Piano Setting on the Song. In 1999
Warner/Chappell acquired the company and started taking royalty for the happy birthday song
and earned a huge amount. After mediation by the Federal court, Warner Music, through its

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publishing subsidiary Warner/Chappell, agreed to pay the settlement to a class of ‗thousands

of people and entities‘ who had paid licensing fees to use the song since 1949 because only the
melody was registered and not the lyrics. Now the song is in the public domain.

Amitabh Bachchan to lose Copyrights over his father’s works in 2063 - Father of renowned actor
Mr. Amitabh Bachchan, (late) Shree Harivansh Rai Bachchan was a noted poet and Hindi writer.
His most famous work was Madhushaala (1935). He was the recipient of the Sahitya Akademi
award and the Padma Bhushan. He also did Hindi translations of Shakespeare‘s Macbeth and
Othello. He passed away on 18th January 2003, at the age of 95. As per the Copyright Act, 1957,
the rights over his work will be completed in the year 2063 (rights remain with the author for his
lifetime plus 60 years).

Trademark

In simple language, a Trademark (or Trade Mark) is a unique symbol which is capable of
identifying as well as differentiating products or services of one organization from those of others.
The word ‗Mark‘ stands for a sign, design, phrase, slogan, symbol, name, numeral, devise, or a
combination of these. Essentially, the Trademark is anything that identifies a brand to a common
consumer.

Eligibility Criteria

For goods/services to be legally classified as Trademark, they need to pass the following
conditions:

Distinctiveness - The goods and services for which the protection is sought should possess
enough uniqueness to identify it as a Trademark. It must be capable of identifying the source of
goods or services in the target market.

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Descriptiveness - The Trademark should not be describing the description of the concerned goods
or services. Descriptive marks are unlikely to be protected under Trademark law. However,
descriptive words may be registered if they acquire Secondary meaning‖, such as the brand name
‗Apple‘ is used by a USA based multinational company that manufactures electronic gadgets.

Similarity to the prior marks - The mark should be unique and should not be having similarity
to the existing marks.

Who Can Apply for a Trademark

Any person who is a proprietor of the Trademark is eligible to apply for registration of Trademark.
The mark can be filed collectively by two or more applicants and for that purpose, support
documents need to be submitted. An organization or association can file for the collective mark
and the same can be used by its members. The most appropriate example for this mark is the

‗Reliance‘ symbol, which indicates all products falling under the organization.

Acts and Laws

In India, Trademarks are governed under The Trademarks Act, 1999

([Link] [Link]).The
Trademark rules are governed by Trademarks Rules, 2002, ([Link]
data/Portal/IPO Rule/1_56_1_1_59_1_tmr_rules_2002_1_.pdf). The Acts and Rules have been
amended from time to time. The latest amendments were done in 2010 and 2017 for Trademarks
Acts and Trademarks, [Link] administration of matters pertaining to Trademarks is
carried out by the Office of CGDPDTM, GoI.

Designation of Trademark Symbols

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Classification of Trademarks

Goods and Services under Trademarks are classified as per the

‗Nice Agreement‘ (1957) administered by WIPO. A total of 149 countries (84 state parties who
are signatory to the Agreement and 65 additional states who are following this classification for
the Trademarks) and others (African Intellectual Property Organization, African Regional IP
Organization and Trademark Office of European Union) are using the same Trademark
classification.

Trademark classification comprises of 45 classes, out of which 34 are for goods and 11 are for
services. Two examples of the classes are:

Class 1 is for Chemicals for use in industry, science and photography, agriculture, horticulture
and forestry; Unprocessed artificial resins, unprocessed plastics; Fire extinguishing and fire
prevention compositions; Tempering and soldering preparations; Substances for tanning animal
skins and hides; Adhesives for use in industry; Putties and other paste fillers; Compost,
manures, fertilizers; Biological preparations for use in industry and science.

Class 45 is for legal services; Security services for the physical protection of tangible property and
individuals; Personal and social services rendered by others to meet the individuals‘ needs.

The Vienna codification established under the Vienna Agreement (1973) is an international
classification of the figurative elements of marks. The relevant Vienna code class can be

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searched on the link: [Link] nivilo/ vienna/[Link]?lang=EN#.

The classification is used to divide all figurative elements into categories (from 1 to 29), divisions
(from 1 to 19) and sections (from 1 to 30). For example, the representation of "a little girl eating"
belongs to Category 2 (Human beings), Division 5 (Children), Main Section 3 (Girls). If auxiliary
sections are used, the figurative element can be identified additionally with the Auxiliary Section
18 (Children drinking or eating, Code A 2.5.18). The codification of this example will be then
indicated as 2.5.3, 18 (main and auxiliary sections).

Registration of a Trademark is Not Compulsory

Although, registration of a Trademark is not compulsory, registration provides certain advantages

to the proprietor of the Trademark, such as:

 Legal Protection – prevents the exploitation of the Registering Trademark by other

companies/organizations/individuals, without proper authorization by the legal owner/s of
the Trademark. In case of legal suits, a registered Trademark can serve as a potent evidence
of the lawful proprietorship of the Trademark.

 Exclusive Right - grants the Trademark owner full rights to use it in any lawful manner to
promote his business.

 Brand Recognition - products/ services are identified by their logo, which helps create
brand value over time. A strong brand is a huge pull for new customers and an anchor for
existing customers. Registering a Trademark early and using it will create goodwill and
generate more business for the brand owner.

 Asset Creation - registered Trademark is an intangible property of the organization. It can

be used for enhancing the business of

 Table 2.8: Territorial jurisdiction of Trademark registration offices.

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S. No. Office States

Location

1. Mumbai Maharashtra, Madhya Pradesh, Chhattisgarh and Goa.

2. Ahmedaba Gujarat and Rajasthan and Union Territories of Daman, Diu, Dadra
d and Nagar Haveli.

3. Kolkata Arunachal Pradesh, Assam, Bihar, Orissa, West Bengal, Manipur,

Mizoram, Meghalaya, Sikkim, Tripura, Jharkhand and Union
Territories of Nagaland, Andaman & Nicobar Islands.

4. New Delhi Jammu & Kashmir, Punjab, Haryana, Uttar Pradesh, Himachal
Pradesh, Uttarakhand, Delhi and Union Territory of Chandigarh.

5. Chennai Andhra Pradesh, Telangana, Kerala, Tamil Nadu, Karnataka and

Union Territories of Pondicherry and Lakshadweep Island.

Process for Trademarks Registration

To seek Trademark registration, the proprietor of the Trademark has to fill an application. The
proprietor may choose to hire an agent to fill and submit the application on his behalf. Before
applying, the applicant needs to conduct a prior art search to ensure the registration criteria.

Prior Art Search - Prior to applying for Trademark registration, it is always prudent to check
whether the intended Trademark is already registered or not. Also, it is ascertained whether the
intended Trademark is not similar to the ones already registered. The requisite search can be
carried out using various web portals, such as:

 Public search for Trademarks by CGPDTM

 WIPO‘s Global Brand Database

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 Trademark Electronic Search System (TESS).

([Link] 7u.1.1)

 MARKARIA Trademark Search Engine ([Link]

[Link]/en/asia/india-trademark-search).

 VAKIL Search ([Link] search/trademarks?search=bajaj).

Once the ‗prior art search‘ is over and the applicant is convinced about the distinctiveness of the
Trademark, he can proceed to fill the application form for registration (TM-A). The application is
filed at the Trademarks Office subject to the jurisdiction of the applicant. The steps involved in
the registration process are as follows:

 After the prior art search has been conducted, the applicant can apply for the registration
on his own or with the help of a certified agent.

 The application is assigned an application number within a few days. The same can be
tracked online at [Link] [Link]/tmrpublicsearch/[Link].

 The application is scrutinized by a professional examiner. If everything is in order, the

particulars of the application are published in the official Trademark journal
([Link] [Link]/[Link]). Otherwise, he will send the objections to the
applicant for rectification. Based on the satisfactory response, the examiner would
recommend the revised application to be published in the journal. If the application is
rejected, the applicant may approach the Intellectual Property Division to challenge the
rejection of an application by the examiner.

 Once the Trademark is published in the official journal, the public has an opportunity to
file an objection, if any, within 90 days. After hearing both the parties, the officer decides
whether to proceed further for the grant of Trademark or disallow the grant of Trademark.
In case of unfavorable outcome, the applicant has the right to contest the decision in front
of the IPAB.

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 Once the application has successfully completed all formalities, a Trademark registration
certificate is issued in the name of the applicant.

Fig. 2.8: Flow chart for the process of Trademark registration

One should keep in mind that while filing an application for the registration of a Trademark,
an English translation of the non- English words has to be provided. If the applicant wishes to
claim the priority from an earlier-filed application, he has to provide details like application
number, filing date, country and goods/services of that application.

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Table 2.9: Fee and forms related to Trademarks.

Entry Contents Amount (₹ ) Form No.

No.
Physical E-filing TM-A
Filing

1. Where the applicant is an Individual / 5,000 4,500

Start-up/Small Enterprise.

In all other cases. 10,000 9,000

2. Opposition/Application for 3,000 2,700 TM-O

Rectification of the

Register/Counter statement / Refusal or

invalidation of a Trademark.

3. For renewal of registration of a 10,000 9,000 TM-R

Trademark.

4. On application to register a subsequent 10,000 9,000 TM-P

proprietor in case of assignment or
transfer for each Trademark.

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5. Application for registration of 5,000 4,500 TM-U

Registered User/Variation of Registered
User/Cancellation of

Registered Users and Notice of intention

to intervene in proceeding in
cancellation/variation.

6. Request for search and issue of the 10,000 9,000 TM-C

certificate.

7. Application/Request for any 1000 9,000 TM-M

miscellaneous function in respect of a
Trademark Application/

Opposition/Rectification.

8. On application for registration of a 5,000 4,500 TM-G

person as a Trademark agent.

Important Queries/Facts About Trademarks

Can any correction be made in the application or register Yes, The rectifications are possible,
but the applicant has to ensure that the corrections made in the Trademark do not alter its identity
significantly.

Can a registered Trademark be removed from the register -Yes, it can be removed if:

 Trademark was registered without any bona fide intention of

using it.

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 If the Trademark is not being used for a continuous period

of 5 years from the registration date or 3 months prior to
filing the application for registration.

 Registered Trademark was disallowed but inadvertently

existed in the official register.

 Trademark Registrar has the power to terminate a registered

Trademark on a suo moto basis.

Is the sound or smell registrable as a Trademark - Yes, sound or smell is registrable as a mark,
as long as it is distinct and can be reproduced graphically. The Trademark, ‗4711 cologne‘ has
been registered as a chemical formula. The sound can be registered as a Trademark, provided it
can be recorded in MP3 format and depicted graphically.

Can a registered user restrain the third party from usingan identical or similar mark which is
not registered -

There is no clear cut answer for such situations. It depends on the circumstances of the matter. But
ordinarily, a registered user cannot restrain the third party from using identical or similar marks if the
third party has been continuously using the mark concerning the same goods or services from a date
prior to the date of use of the registered mark or date of registration.

According to the Trademarks Act, 1999, the rights and protection in the form of remedies are
not only to the registered mark but also to the unregistered Trademarks. Although, a registered
Trademark has been given a statutory remedy under section 28 of the Act, but 27(2) of the Act
provides a remedy for an unauthorized use of unregistered Trademark. Passing off is a common law tort
which is most commonly used to protect goodwill that is attached to the unregistered Trademarks. The
action of passing off is available to both registered and unregistered Trademarks, but a suit for
infringement is available for only registered Trademarks.

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[Link]. Seeking Trademark protection in a foreign country - To file the Trademark in a foreign
country, there are two options available for the applicant. He can either file the Trademark application
with the Trademark Office of the country in which he wishes to seek protection, or he can use WIPO‘s
Madrid System through which the registration can be filed in multiple countries by claiming priority
of one of the signatory countries. This priority has to be claimed within six months of the first filing.
The applicant can file a single application for seeking protection in any number of countries that are
members of WIPO by paying a single set of fee. List of jurisdictions that can be accessed through
Madrid Protocol for filing Trademark is available at [Link] wipo.i nt/
treaties/en/[Link]?treaty_id=8.

2.3.12. Trademarks Statistics

Figure 2.9 represents the statistics for Trademarks (filed, examined and registered) for the period
2010-20. During this period, an increase of 95%, 65% and 154% was observed in the parameters of
trademarks filed, examined and registered, respectively. Overall, a gradual increase was seen in the
number of TM filed, but a zig-zag curve was observed for the TM examined for the period 2010-16.
The highest number of TM applications (5,32,230) were examined in 2016-17 followed by dip (nearly
two folds) in the following year (2017-18). The following two years (2018-20) showed some
recovery, with 3,38,551 applications examined in 2019-20. In case of TM registration, first, five years
(2010-15) showed a downward trend. But, a significant leap of nearly four-folds was observed in the
next year i.e. 2016-17. The maximum number of TM (3,16,798) were registered in the year 2018-19.

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550000
500000
450000
400000
350000
300000
250000
200000
150000
205065
100000
50000
0

2010 - 11 2011 - 12 2012 - 13 2013 - 14 2014 - 15 2015 - 16 2016 - 17 2017 - 18 2018 - 19 2019 - 20
YEAR

Fig. 2.9: Trademarks profile (India) for the period 2010-20.

International Treaties and Conventions

There is a provision to file an international application for the Trademarks to seek protection in
other Convention countries. The rules and regulations to file international applications in
Convention countries are concluded under the following treaties and agreements administered by
WIPO.

 The Madrid Agreement for International Registration of Marks (1891)

([Link]/treaties/en/registration/madrid/).

 The Nice Agreement for International Classification of Goods and Services (1957).

([Link]

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 The Trademark Law Treaty (TLT) (1994) ([Link] int/

treaties/en/ip/tlt/summary_tlt.html).

 Vienna Agreement (1973) for the Classification of Figurative Marks

([Link]

Famous Case Law:

Coca-Cola Company vs. Bisleri International Pvt. Ltd.

‗MAAZA‘, a popular mango fruit drink in India, is a registered Trademark of an Indian company,
Bisleri International Pvt. Ltd. The company transferred the rights (formulation, IPR and goodwill,
etc.) to a beverage company, Coca-Cola, for the Indian Territory. However, in 2008, the Bisleri
Company applied for registration of Trademark ‗Maaza‘ in Turkey and started exporting the
product with the mark ‗MAAZA‘. This was unacceptable to the Coca-Cola Company and thus
filed a petition for permanent injunction and damages for passing-off and infringement of the
Trademark.

It was argued on behalf of Plaintiff (Coca-Cola Company) that as the mark ‗Maaza‘ concerning
the Indian market was assigned to Coca-Cola, and manufacture of the product with such mark,
whether for sale in India or for export, would be considered as an infringement. After hearing both
the parties, the court finally granted an interim injunction against the defendant (Bisleri) from
using the Trademark MAAZA in India as well as for the export market, which was held to be an
infringement of Trademark.

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