Historical Overview and an Introduction to Copyright

HISTORICAL OVERVIEW AND AN HISTORICAL OVERVIEW AND AN INTRODUCTION TO COPYRIGHT By Muhammad Nouman Shams, Advocate and Legal Consultant, Lahore INTRODUCTION Copyright law secures for the creator of a creative effort the exclusive right to control who can make copies, or make works derived from the original work. There are a lot of subtleties and international variations but that's the gist of it. If you create something, and it fits the definition of a creative work, you get to control who can make copies of it and how they make copies, with some important exceptions. You can also sell or license this right, or, if you do the work for somebody who hired you to do it, they buy this right in advance. I. DEFINITION i. A property right in an original work of authorship (such as a literary, musical, artistic, photographic, or file work) fixed in any tangible medium of expression, giving the holder the exclusive right to reproduce, adapt, distribute, perform, and display the work. (Black's Law Dictionary 7th edition)' ii. Exclusive right of an author of printing and publishing his literary performance. The right extends to books, letters, lectures, dramatic production, musical compositions, unpublished works of art, engravings etc. right of distribution, exhibition and exploitation of cinematography film is copyright within the meaning of section 1(2) (b) of British Copyright Act, 1991 (PLD 1963 Dacca 108) II. HISTORY (i) Dating back almost to the beginning of civilization, in ancient time, most authors were primarily teachers, hence the emphasis was on moral rights. The word "Plagiarist" meaning one who copies the work of another and passes it of as his own, is derived from the Latin "Plagiarius" meaning kidnapper. (ii) Legislation in England. (a) Early statute of Richard III, 1483. (b) Original charter of Stationer's Company, 1556. (c) Decrees of Star Chamber of 1556, 1585, 1637. (iii) First Licensing Act, 1640. (iv) The Ordinance of 1649. (v) Licensing Act, 1662. (vi) Ordinances of Stationer's Company. (vii) First Copyright Act, 8 Anne, c.19, 1709. (viii) The Engraving Copyright Act, 1766. (ix) Copyright Act, 1814. (x) Sculpture Copyright Act, 1814. (xi) Dramatic Copyright Act, 1833. (xii) Copyright Act, 1842. (xiii) Literary Copyright Act, 1842. (xiv) Copyright (Musical Compositions) Acts of 1882 and 1888. (xv) Fine Arts Copyright Act, 1862. (xvi) Musical Copyright Act, 1906. (xvii) Copyright Act, 1911. (xviii) Copyright Act, 1956. III. WORKS PROTECTED BY COPYRIGHTS: (Section 10 of the Copyright Ordinance, 1962). Copyright subsists only in specified description of work. (0 Original literary, dramatic, musical or artistic works: * Originality: all of the works, unlike the other categories of work of copyright must be original for copyright of subsists in them. The work does not have to be unique or even particularly meritorious. Rather originality is more concerned with the manner in which the work was created and is usually taken to require that the work in question originated from the author, its creator, and that it is not copied from any other work. "The word original does not in this connection means that the work must be an expression of original or incentive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and in case of a literary work, with the expression of thought in print or writing. The originality which is required relates to the expression of thought" (Peterson J. (1916) 2 Ch 601) * Work: for copyright to subsist in a literary, dramatic, musical or artistic work it must qualify as a "work" and one way of determining this is to consider the amount of skill or labour which has gone into its creation. Judges have displayed some inconsistency in the formulae they have used, for example "work or skill or expense" per Lord Pearce, "knowledge, labour, judgment or literary skill or taste" per Lord Atkinson and "skill and labour" per Lord Temple man. But nevertheless, it is clear that some measure of skill or effort must have been expended in the production of work before it can attract copyright protection. (a) Literary works: Literary work includes any written table or compilation and writing includes any form of notation whether by hand or by printing, type writing or any similar process. Literary work does not have to be a work of literature and this is implied by the inclusion of computer programmes and preparatory design material for computer programme in its category. "in Peterson J. view the words, literary work, cover work which is expressed in printing or writing, irrespective of the question whether the quality or the style is high. The word literary seems to be used in a sense somewhat similar to the use of the word 'literature' in political or electioneering literature and refers to written or printed matter". for a work to be an 'original literary work', it must accord with that phrase taken as whole. It is not sufficient that a work satisfies each word individually. . Examples of works which afforded literary copyright are books of telegraphic codes, examination papers, consignment notes, headings in trade directory, business letters etc. (b) Dramatic works: . An original dramatic work is in general the product of the mind of a human author, arrived at by the exercise of substantial independent skill, creative labour or judgment, which requires acting or dancing for its proper representation and is of a sufficiently definite and permanent nature as to be capable of being recorded in suitable notation. . Copyright in an original dramatic work does not arise until it is fixed in writing or some other material form. . A work of dance or mime is a dramatic work. . Matter of an impermanent, fluctuating or indefinite nature, such as acting style, business and the like, in short interpretation would not attract copyright protection since there is not sufficient certainty of subject-matter. . The test which is applied is whether the matter can be printed and published. (c) Musical works: . An original work is in general the product of mind of human author which is intended to be performed by the production of a combination of sounds to be appreciated by the ear for reasons other than linguistic content, the originality of the work resulting from the exercise of substantial .independent skill, judgment or creative labour expended on its creation as opposed to its mere interpretation. . Copyright in musical work does not arise until it is fixed in writing or some other material form. . Making an arrangement of an existing piece of music may attract its own copyright in addition to and running along side the copyright subsisting in the prior musical work. But this should be distinguished from mere interpretation in performance. There are normally three kinds of copyright in a record of music, first, the copyright in the words and music of the song, secondly, the copyright in actual sounds embodied in the record, thirdly, the copyright in musical arrangements. Whenever a question arises in the field of musical copyright such as originality copyright or infringement, scholarly may be useful but the impact on the ear is ultimately more important: what its sounds like matters more than the notes which are written down. (1963) Ch 587 (d) Artistic work: Artistic works include a graphic work, photograph, sculpture or collage, irrespective of artistic quality, a work of architecture being a building or a model for a building, or a work of artistic craftsmanship. The preparation of a finished production in the artistic field may involve the creation of more than one artistic work and hence be protected by more than one copyright. However such cases may require some care to identify what was the author's original contribution. Visual works may be artistic in character in the fine arts or aesthetic sense of that expression, or they may lack in that character. For a work to be work of artistic craftsmanship, some aesthetic element is necessary. All other types of artistic works can qualify be void of that element. Works which are protected by this right include Sculpture, works of architecture, typefaces, moving sound pictures, painting, computer generated works, drawing, map, chart or plan, engraving, etching, lithograph, woodcut and similar works. (ii) Sound recordings, films, broadcasts, or cable programmes. Sound recording is a recording of sounds from which the sounds may be reproduced or a recording of the whole or any part of literary, dramatic or musical work, from which sounds reproducing the work or part may be produced. Films are a recording of any medium from which a moving image may by any means be produced. A sound track is not included. Merely copying any old film does not bring a new copyright. A broadcast, which consists of visual images, sounds or other information, is a transmission by means of wireless telegraphy of them which is capable of being lawfully received by members of the public or which is transmitted for presentation to members of the public. The cable programme service is a transmission of the same by means of telecommunication system other than wireless telegraphy, for example by cables laid in the grounds. (iii) The typographical arrangement of published editions. The protection of typographical arrangement of published editions gives some protection to the publisher of a work which itself out of copyright and also gives some recognition to the skill expended in work such as selection of type styles, format and type setting. Artistic works are not included. To prevent publisher extending the life dared (Sic) not to subsist in the typographical arrangement of a published edition, it or to the extent that, it reproduces the typographical arrangement of a previous edition. III. RIGHTS OF A COPYRIGHT OWNER. (Section 3 of The copyright Ordinance, 1962). Copyright" means the exclusive right, by virtue of, and subject to, the provisions of this Ordinance:-- (a) in the case of a literary, dramatic or musical work, to do and authorize the doing of any of the following acts, namely: - i. to reproduce the work in any material form; ii. to publish the work; iii. to perform the work in public; iv. to produce, reproduce, perform or publish any translation of the work; v. to use the mark in a cinematographic work or make a record in respect of the work; vi. to broadcast the work, or to communicate the broadcast of the work to the public by a loudspeaker or any other similar instrument; vii. to make any adaptation of the work; viii. to do in relation to translation or an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (vi); (b) in the case of an artistic work, to do or authorize th e doing of any of the following acts, namely;- i. to reproduce the work in any material form; ii. to publish the work; iii. to use the work in a cinematographic work; iv. to show the work in television; v. to make any adaptation of the work; vi. to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv); (c) in the case of a cinematographic work, to do or authorize the doing of any of the following acts, namely:- i. to make copy of the work; ii. to cause the work insofar as it consists of visual images, to be seen in public and, in so far as it consists of sounds, to be heard in public; iii. to make any record embodying the recording in any p. of the sound track associated with the work by utilizing such sound track; iv. to broadcast the work; (d) in the case of a record, to do or authorize the doing I,' any of the following acts by utilizing the record, namely: i. to make any other record embodying the same recording; ii. to use the recording in the sound track of cinematographic work; iii. to cause the recording embodied in the record to be heard in the public; iv. to communicate the recording embodied in the record by broadcast. (2) Any reference in subsection (1) to the doing of any act in relation to a work or a translation or an adaptation thereof shall include a reference to the doing of that act in relation to a part thereof.. (3) Entitlement to copyright in compilation of data or other material shall not extent to data or other material itself and shall be without prejudice to any copyright subsisting in the data or other material, that is to say, the copyright shall subsist to the extent of compilation only. V. DURATION OF COPYRIGHT: Chapter III of the Copyright Ordinance, 1962 i. Published literary, dramatic, musical and artistic work: within life time of the author until fifty years from the beginning of the calendar year next following the year in which the author died. ii. Posthumous work: fifty years from the beginning of the calendar year next following the year in which the book was first published or where an adaptation of the work is published in any earlier year, from the beginning of the calendar year next following that year. iii. Cinematographic works: fifty years from the beginning of the calendar year next following the year in which the work is published. iv. Records and photographs: fifty years from the beginning of the calendar year next following the year in which those were published. v. Anonymous and pseudonym works: fifty years from the beginning of the calendar year next following the year in which the work is published. vi. Government, where is the first owner and works of international organization: fifty years from the beginning of the calendar year next following the year in which the work is published. IV. INFRINGEMENT OF COPYRIGHT: I. Infringements; (Section 56 of The Copyright Ordinance, 1962) (i) Primary Infringements:-- (a) Copy the work; (b) Issues copies of the work to the public; (c) Perform, show or play the work in public; (d) Broadcast the work or include it in a cable programme; (e) Make the adaptation of the work or do any of the above in relation to adaptation. (ii) Secondary infringement: (a) Associated with criminal offence, in which some form of mens rea, established with objectivity on reasonable man's test is to be established. (b) Importing an infringing copy; (c) Transmission of work by telecommunication system; (d) Permitting the use of premises, being a place of public entertainment, for an infringing performance; (e) Possessing or dealing with the infringing copies; (f) Supplying a copy of sound recording or film used to infringe copyright. II. Exceptions to infringement: Section 57 of the Copyright Ordinance, 1962 The following acts shall not constitute an infringement, of copyright, namely:-- (a) a fair dealing with a literary, dramatic, musical o artistic work for the purpose of :- i. research or private study; ii. criticism or review, whether of that work or of any other work; (b) a fair dealing with a literary, dramatic, musical or artistic work for the purpose of reporting current events:- i. in a newspaper, magazine or similar periodical, or ii. by broadcast or in a cinematographic work or by means of photographs; (c) the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding; (d) the publication in a newspaper of a report of an address of political nature delivered at a public meeting unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given and, except whilst the building is being used for public worship, in a position near the lecture; but nothing in his clause shall affect the provisions as to newspaper summaries; (e) the reproduction of any literary, dramatic, or musical work in the certified copy made or supplied in accordance with any law for the time being in force; (f) the reading or recitation in public of any reasonable extract from a published literary or dramatic work; (g) the publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of educational institutions and so described in the title and in any advertisement issued by or on behalf of the publisher, of short passages from published, literary or dramatic works, not themselves published for the use of educational institutions, in which copyright subsists: Provided that not more than two such passages from works of the same author are published by the same published during any period of five years. Explanation,--In the case of a work of joint authorship references in this clause to passages from works shall include references to passages or by any one or more of those authors in collaboration with any other person; (h) the reproduction or adaptation of a literary, dramatic, musical or artistic work:- i. in the course and for the sole purpose of instruction whether at an educational institution or elsewhere where the reproduction or adaptation is made by a teacher or a pupil otherwise than by the use of a painting process; ii. as part of the questions to be answered in an examination; or iii. in answers to such questions; (i) the performance, in the course of the activities of an educational institution, of a literary dramatic or musical work by the staff and students of the institution, or of a cinematographic work or a record, if the audience is limited to such staff and students, the parents and guardians of the students and persons directly connected with the activities of the institution; (j) the making of records in respect of any literary, dramatic or musical work, if: i. records recording the work have previously been made 1 3 by or with the licence or consent of, the owner of the copyright in the work; and ii. the person making the records has given the prescribed notice of his intention to make the records, and has paid in the prescribed manner to the owner of the copyright in the work royalties in respect of all such records to be made by him, at the rate fixed by the Board in this behalf: Provided that in making the records such person shall not make any alterations in, or omissions from, the work, unless records recording the work subject to similar alterations and omissions have been previously made by, or with the licence or consent of the owner of .1 the copyright, or unless such alterations and omissions are reasonably necessary for the adaptation or the work to the records in question; (k) the causing of a recording embodied in a record to be heard in public utilizing the record,- (i) at any premises where persons reside, as part of the amenities provided exclusively or mainly for residents therein, or (ii) as part of the activities of a club, society or other organization which is not established or conducted for profit:-- (1) the performance of a literary, dramatic or musical work I by an amateur club or society, if the performance is given to a non-paying audience, or for the benefit of a religious, charitable or educational institution; (m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the owner of copyright of such article has expressly reserved to himself the right of such reproduction; (n) the publication in a newspaper, magazine or other periodical of a report of a lecture delivered to public; (o) the making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a public library or a non-profit library available for use by the public free of charge or a library attached to an educational institution for the use of such library if such book is not available for sale; (p) the reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access: Provided that where the identity of the author of any such work, or in the case of a work of joint authorship, of any of the authors, is known to the library, museum or other institution, as the case may be, the provision of this clause shall apply only if such reproduction is made at a time more than fifty years from the date of the death of the author or, in the case of a work of joint authorship, from the death of the author whose identity is known or, if the identity of more authors than whose identity is known or, if the identity of more authors than one is known, from the death of such one of those authors who dies last; (q) the reproduction or publication of-- (i) any matter which has been published in any official Gazette, or the report of any committee, commission, council, board or other like body appointed by the Government unless the reproduction or publication of such matter or report is prohibited by the Government; (ii) any judgment or order of a court, tribunal or other judicial authority, unless the reproduction or publication of such judgment or order is prohibited by the court, tribunal or other judicial authority, as the case may be; (r) the making or publishing of a painting, drawing, engraving or photograph or an architectural work of art; (s) the making or publishing of a painting, drawing, engraving or photograph or a sculpture or other artistic work if such work is permanently situate in a public place or and premises to which the public has access; (t) the inclusion in a cinematographic work of- i. any artistic work permanently situate in a public place or any premises to which the public has access; or ii. any other artistic work, if such inclusion is only by way of background or is otherwise incidental to the principal matters represented in the work; (u) the use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him for the purpose of the work: Provided that he does not thereby repeat or imitate the main design of the work; (v) the making of an object of any description in three dimensions of an artistic work in two dimensions, if the object would not appear, to persons who are not experts in relation to objects of that description to be a reproduction of the artistic work; (w) the reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed: Provided that the original construction was made with the consent and licence of the owner of the copyrights in such drawing or plans ; (x) in relation to a literary, dramatic or musical work recorded or reproduced in any cinematographic work, the exhibition of such work after the expiration of the term of copyright therein: Provided that the provisions of sub-clause (ii) of clause (a), sub-clause (i) of clause (b) and clauses (f), (g), (m), and (p) shall not apply as respects any act unless that act is accompanied by an acknowledgment- i. identifying the work by its title or other description; and ii. unless the work is anonymous or the author of the work has previously agreed or required that no acknowledgment of his name should be made, also identifying the author. Explanation. For the purposes of clause (a) or clause (b) of this subsection-- i. in relation to a literary or dramatic work in prose, single extract up to four hundred words, or a series of extracts (with comments interposed) up to a total or eight hundred words with no one extract exceeding three hundred words; and ii. in relation to a literary or dramatic work in poetry, an extract or extracts up to a total of forty lines and in no case exceeding one fourth of the whole of any poem may be deemed to be fair dealing with such work: Provided that in a review of a newly-published work, reasonably longer extracts may be deemed fair dealing with such work. (2) The provisions of subsection (1) shall apply to the doing of any act in relation to the translation of a literary, dramatic or musical work or the adaptation of a literary, dramatic, musical or artistic work as they apply in relation to the work itself. V. REMEDIES: (a) Civil remedies: i. Damages; ii. Injunctions; iii. Accounts of profit; iv. Additional damages; v. Delivery up. (b) Search Warrants and other criminal remedies provided in statute: VI. INTERNATIONAL COPYRIGHT: (Chapter XI of The Copyright Ordinance, 1967) Copyright protection granted by statute is territorial in nature. In nineteenth century, trend towards international cooperation in copyright matters was developed. 1885-multilateral convention was agreed and, in UK International Copyright Act, 1886 was passed. Universal Copyright Convention supported by UNESCO helped to develop international protection to the Copyright. Such protection, however, will be governed by the domestic law.