by Vinutha Mallya
The World Book and Copyright Day is being celebrated the world-over today. In India, books and publishing have seen a boom in the last decade. The ushering in of the knowledge-based economy in the new millennium has contributed to the surge in the demand for books. But although book publishing and book reading are gaining in numbers, awareness about copyright remains woefully lacking.
To commemorate the World Book and Copyright Day, we present a snapshot view of Copyright – the concept, the legal framework, the role of publishing industry and emerging discussions on the idea of copyright.
What is Copyright?
A discussion about the term ‘copyright’ often begins with someone saying “copyright is the ‘right to copy’.” Nearly always a nervous laugh accompanies the joke – evidence that the concept is vague, not just to authors but even to professionals in media and publishing industries.
Copyright is a form of intellectual property (along with patents, trademarks etc), which is the bedrock of creative and cultural industries. It protects the rights of the creators of literary, musical, dramatic and artistic works, cinematograph films and sound recordings. Copyright rules vary for these different classes of works.
In the case of ‘literary work’, the term refers to the ‘exclusive right’ to reproduce the work, issue copies of it to the public, or perform the work in public, or communicate the work to the public. It also includes subsidiary rights, such as to make a cinematograph film or sound recording of the work, or to make a translation and adaptation of the work. In effect, copyright is exploited as an economic right. Copyright sustains the production and dissemination of creative works through a legal framework, by rewarding their creators, while also preventing unauthorised use of literary works.
Copyright ownership rests with the person responsible for creating the work in the first instance. It is possible for another party to become the copyright owner when the work is commissioned on work-for-hire and a fee is paid upfront or when the creator of work relinquishes her copyright and grants it to someone else.
When someone plagiarises a literary work, or uses it fully or partially without the copyright owner’s permission (“pirates” it), they infringe copyright. It is wrong to assume that a copyrighted work can be used without permission by simply attributing it to the author. Some exceptions are made in public interest – explained further below.
What is Copyrightable?
All tangible forms of an abstract idea can be copyrighted, such as handwritten or typed manuscripts, lectures, letters, maps, drawings, plans, photographs and even computer software (which is considered a ‘literary work’, but is accorded special rights in regards to sale or hire under the law). The work must be ‘original’.
Ideas or concepts are not protected by copyright, neither are historical facts or titles of books, names of publications, generic short-word combinations or plots.
Although it can be registered formally, copyright is automatic and comes into existence as soon as the work is created. If one chooses to register their copyright in the Register of Copyrights maintained by the Copyrights Office in New Delhi, it serves as prima facie evidence in the court of law.
Every country has the right to make its own copyright laws. In India, literary works are protected by the Copyright Act of 1957. Over the years, amendments have been effected to align the Act with international treaties and conventions that India is signatory to: Berne Convention, Universal Copyright Convention, WIPO Copyright Treaty (WCT) etc. The Copyright Amendment Bill of 2010 – that seeks to introduce new provisions for copyright protection in the digital environment, and defines the liability of internet service providers among other changes – is currently under consideration in the Parliament.
Copyright and the Publishing Contract
In the book-publishing industry, the terms under which a creative work is owned and exploited are enshrined in the publishing contract. “The bundle of rights under copyright includes the right to reproduce, translate, adapt and disseminate.” The author “assigns” the publisher the right to exploit this bundle of rights in return for royalty or license fees. Either all or some rights can be assigned and the assignment has to be in writing, i.e. as an agreement or contract. Oral contracts are not permissible under law. Yet, in many instances in India, copyrights have been given on the basis of trust through oral agreement, often leading to exploitation of authors or creating misunderstandings between authors and publishers.
The period of assignment is for five years by default unless an extension is mutually agreed upon. The time to publish, from when the manuscript is received by the publisher, if not mentioned, is one year by default. After which, rights revert back to the author. But it can be extended by mutual agreement.
Royalty rates are listed for each scenario (sale of published book, sale of translation rights etc) set as percentages of ‘net receipts’ of the publisher. The publisher is obligated to disclose the quantity of the first print run and to fix the scheme for reprints.
When the creator of the work assigns publishing rights through a contractual agreement with a publisher, the publisher becomes the custodian of the copyright. In all cases, authors or creators of the original work enjoy ‘moral rights’ – to be identified as the creator of the work (‘right to paternity’) and to object to any distortion or modification of the work (‘right to integrity’).
The work submitted should not be plagiarised and should not violate any existing copyright, and the author has to indemnify the publisher from these.
The work by an employee produced in the course of an employment automatically becomes the copyright of the employer as in the case of journalists working for a newspaper. Any exception to this is only possible if an agreement is made to the contrary.
The Publisher’s Role and ‘Related Rights’
Books are traded as a product, and the publishing business is an industrial and economic activity. The role of the publisher needs to be understood in this context. Publishers add value to the author’s work by employing editors, designers, typesetters, sales and marketing professionals and (in big companies) publicists. They make the work fit for public consumption and market it to the ‘trade’, and become the link to the rest of the value chain – printers, wholesalers and booksellers. Traditional publishing business model has been dependent on this long-established value-chain.
For their investments, publishers enjoy ‘related rights’: they have the right over the edition they publish. The soft copy of layouts, films, plates, stocks and publicity material are the publisher’s property. The author is not allowed to produce a competing work that could harm the sale of the book while it is in print.
Balancing Commerce with Public Interest
The Article 27 of the Universal Declaration of Human Rights states:
(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Commercial aspects of publishing have brought the publishing industry in conflict with cultural imperatives, of knowledge sharing and information dissemination. The copyright law makes provisions for balancing the commercial and public interests in the production and dissemination of literary works.
‘Fair dealing’ refers to conditions under which a fair use of copyrighted material is permitted – for research, study, criticism, review, news reporting or in library and schools and in the legislature – without specific permission of the owners. The law has specified the uses under which exemptions are made.
There are two underlying principles to consider: one should not derive economic gain from the copyrighted work of someone else, unless the right is voluntarily surrendered; it is the right of the copyright holder to decide whether her work should be used fully or partially in instances where ‘fair deal’ is not applicable.
It is a mistaken notion that one can use a copyrighted work by simply attributing it to the author or the source.
The idea of ‘compulsory licensing’ was introduced in the international norms of the Berne Convention to facilitate access to information for developing countries. In the 1983 amendment to the Indian Copyright Act, provisions for compulsory license of “orphaned” works were introduced. This meant that if the author could not be traced or was not alive, a compulsory license could be obtained to publish the work, under certain conditions. A compulsory license can also be obtained for publishing a translation of a work, granted after a period of seven years from the first publication of the work.
The Copyright Board in India is authorised to issue a ‘compulsory license’ to publish works that are within copyright, under certain conditions: i.) an ‘orphaned work’ which is of public interest, but whose author or heir is unknown, untraceable or dead; ii) a work of national/public interest deliberately withheld from public by the author or her heirs; iii.) for publishing a translation of an existing work. Due to the lack of awareness of the law, the provision of compulsory licensing has rarely been invoked.
In the proposed amendment of 2010, the scope of this provision was extended, to bring works into formats suited to people with disabilities.
Copyright does not remain indefinitely. In India, the ‘term of copyright’ subsists for life of the author plus 60 years after that, irrespective of copyright ownership. When a work comes into the public domain, it loses restrictions of the copyright law. Such works can be copied, reused, shared or published without restrictions. An author could also donate her work to the public and make it available freely.
However, under the Indian law the moral rights to ‘paternity’ and ‘integrity’ are not applicable when works go out of copyright. The new amendment of the Copyright Act seeks to preserve perpetual right to claim authorship and to prevent texts from being mutilated or distorted.
Works that were created before formal copyright legislations were in currency are also available in the public domain.
Digital technology and the Internet have given a boost to knowledge sharing in the public domain. The Project Gutenberg (www.gutenberg.org) founded in 1971 in the United States is one such successful example, which offers 38000 free ebooks online, and collaborates with a number of affiliates and partners to make them available.
Recently, activists around the world have called for disallowing copyrighting of traditional knowledge texts and works of cultural heritage.
The internet and other digital technologies have fostered changes in access, production and distribution of literary works and “content”. The restrictive nature of copyright law in giving access to information and knowledge has been hotly debated. The ‘copyleft’ principle, which emerged from the free and open-source software initiatives (FOSS), encourages authors to voluntarily allow any person to access, reproduce, adapt or distribute her work, based on an open licensing framework. Of the several copyleft licenses available today, the six Creative Commons (CC) licenses are most popular for literary works.
The Creative Commons licenses have been developed by a US-based not-for-profit organisation of the same name. The organisation aspires to create a “richer public domain”. Creative Commons licenses provide for both, non-commercial as well as commercial uses of the literary work, depending on the option selected by the copyright holder who wishes to make her content available openly (‘open content’).
These licenses consist of four major condition modules: Attribution (BY), requiring attribution to the original author; Share Alike (SA), allowing derivative works under the same or a similar license (later or jurisdiction version); Non-Commercial (NC), requiring the work is not used for commercial purposes; and No Derivative Works (ND), allowing only the original work, without derivatives. These modules combine to form six major licenses.
The licenses were first drafted in compliance with the US legislations, but since the year 2010 localised licenses have been developed for enforcing in various jurisdictions. The Creative Commons India affiliate housed at the IIT-Bombay has developed the CC license suite for India.
Open publishing is the process of creating open content in transparent manner. Readers can view, contribute, as well as view the editorial decisions made by others. Wikipedia is an example of this. The content on wikipedia is accessible under the Creative Commons Attribution-Shared Alike license (CC BY-SA), which allows anyone to share and adapt the work under the condition that it is attributed and any resulting work is distributed in the same way.
Open Access Publishing
With public access to the world wide web becoming widespread in the new millennium, this form of distribution technology spawned the Open Access movement.
In particular, academic institutions and universities, which create and disseminate research have had to rethink their priorities when it comes to publishing. The Open Access debate has stemmed from the need to make publicly-funded research freely accessible through internet platforms. Unlike in open publishing, in open access publishing, peer-reviewed scholarly journal articles are kept intact retaining the authorship of one or a fixed group of authors. It is the barrier of access, in the form of subscription fees, site licenses and pay-per-view etc, which is removed. CC licenses are often used to specify usage rights. Some traditional scholarly journals allow their issues to become open access after a certain time period.
There is an ongoing debate over the economics and reliability of distribution models for Open Access, among universities, researchers, librarians, funding agencies and government officials and publishers.
The Way Forward
Copyright is an evolving concept and new developments, especially those in the technology domain, are compelling us to rethink it more than ever before. Traditional publishing models are facing several challenges in this context and the resulting complex landscape is making it difficult for authors and publishers to comprehend the gamut of options that lie before them. Since copyright is also a cultural idea, rooted in the country of its origin, it is equally important to view it from different facets. What is vital is that publishers and authors in India need to work together to understand copyright and locate it within the changing nature of the publishing industry.
Copyright Office of India: copyright.gov.in
Indian Copyright blog: copyright.lawmatters.in
Centre for Internet & Society: cis-india.org
Creative Commons: creativecommons.org
Copyright for Librarians: cyber.law.harvard.edu/copyrightforlibrarians/Main_Page
UNESCO page on World Book and Copyright Day: http://www.unesco.org/new/en/unesco/events/prizes-and-celebrations/celebrations/international-days/world-book-and-copyright-day-2012
Vinutha Mallya is Senior Editor at Mapin Publishing, Ahmedabad.