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Copy right is the right in the literary property as recognized and sanctioned by positive law .It is intangible ,incorporate right granted to the author or originator of literary or artistic production whereby he is invested for a specified period with the sole and exclusive privilege of multiplying copies of the same and publishing and selling them .
Copy right is an exclusive right given by the law for a certain term of years to an author ,composer ,producer or his assignee or licensee to print ,publish or sell copies of his original works .
By virtue of Indian copy right act, the copy right shall subsist through out India in the following classes of works
The exclusive right includes the right to reproduce, to issue copies, to perform the work, to make any cinematography films, to make translation of of the work, to make any adaption of the work (adaption means conversion of a dramatic work into non dramatic work or vise versa)
ESSENTIAL CONDITIONS FOR THE SUBSISTENCE OF COPY RIGHT
In order to subsist copyright the following conditions should be satisfied
Registration is not a precondition for bringing an action for infringement of copyright .Registration serves the purpose of prima-facie proof of possession of copy right in the person.
What is protected under the copy right is not the original thought or information but the protection is to the original expression ,thought or information in some concrete form .If the theme is the same but presented and treated differently ,the subsequent work becomes a completely new work and the question of violation of copy right does not arise .Copy right act does not require that the thought must be original or novel .In order to get the copy right the work must not be copies from another work .The manner of expression of thought must be original
OWNER AND AUTHOR OF COPYRIGHT
In the absence of any agreement to the contrary,
· If the literary ,dramatic or artistic work is made by the author in the course of his employment by the proprietor of a news paper ,magazine or periodical under a contract of service or apprenticeship for the purpose publication ,the said proprietor will be the first owner of copy right
· In the case of photograph ,painting or portrait ,if a photograph is taken or a painting or portrait is drawn or engraving or a cinematograph film is made for valuable consideration at the instance of a person ,such person shall be the first owner of the copy right
· If any work is done in the course of author’s employment under a contract of service the employer will be the first owner of the copy right.
· If a person has any delivered any address or speech in public ,that person will be the first owner of the speech
· In case of a government work ,the government is the owner of the copy right
· In case of a work made or first published by any public undertaking such public undertaking shall be first owner of the copy right in the absence of an agreement to the contrary
· If an employee is teaching in a school ,college or university writes a book on the subject he teaches ,he is the owner of copy right
REGISTERATION OF COPY RIGHT
The author, publisher or any person interested in the copy right in any work may make an application for the registration shall be made in the prescribed form and should be accompanied by the prescribed fee. on a receipt of an application for registration ,the registrar shall hold necessary inquiry and enter the particulars of work in the register of copy rights .When a copy right is registered ,the name of the title of work and the name and address of author ,publisher and the owner shall be entered into the register of copyrights
TERM OF COPY RIGHT
INFRINGEMENT OF COPY RIGHT
A copy right confers exclusive right on the copy right owner to the production of work in a material form ,storing the work in any medium by the electronic means ,publication of the work ,performances of the work in public ,making of its adaptations and translations .These rights are conferred to the owner of the copy right to enable him to reap monetary benefits .If any of the above acts are carried out by a person other the owner of copy right without license from the owner it constitutes infringement of copy right
Copy right is granted for a specific period of time .Whether an act is infringement is not depend on the fact that whether the copy right is subsisting in the work or not .In case the copy right in the work has expired, the work falls in public domain and act of reproduction of the work by any person would not amount to infringement
If a person without the consent or license of the owner of copy right does or authorizes the doing of any of the following acts he will be guilty of infringement of copy rights in the work.
· Civil remedies
The owner of the copy right is entitled to the civil remedies by way of injunctions, compensations and accounts profit
· Criminal remedies
The infringement of copy right is an offence punishable with imprisonment which may extent from a minimum period of 6 months to a maximum period of 3 years and of fine of 50,000 to 2 lakhs
· Administrative remedies
The owner of copy right may apply to the registrar of copy right to ban the import of infringed copies to India when the infringing is by way of such infringement
The two kinds of moral rights are
· The paternity right –right to claim authorship
· The integrity right –right to protect his honor and reputation
A trade mark is a visual representation attached to goods for the purpose of indicating their trade origin .A trade mark is a visual symbol in the form of a word, a devise or label applied to articles of commerce with a view to indicate the buyers that the goods are manufactured by particular organization as distinguished from similar goods manufactured by others
The definition of trade mark given by Trade marks act
The most important functions of trade mark are the following
ESSENTIAL CHARECTERISTICS OF GOOD TRADE MARK
· A trade mark should be distinctive
· The word or name used should be easy to pronounce
· It must be easy to pronounce and easy to spell correctly
· It should be not descriptive
· It should be short
· It should appear to the eye as well as to the ear
REGISTERATION OF TRADE MARK
A person who wants to register his trade mark has to make an application for registration .Application can be given to the head office or branch office .The head office is at Bombay .After receiving an application for registrations the registrar shall give advertisement of the application .Any person, who claims an interest in registration the registrar decides either to register the trade mark or to reject the application.
An application of trade mark may be refused under the following circumstances
DURATION OF TRADE MARK
The registration of a trade mark shall be for a period of 10 years .It can be renewed for another period of 10 years by paying the renewal fees .By renewing, the duration can be extended for any number of years.
Collective Mark is a trade mark distinguishing the goods or services of members of an association of persons other than a partner ship which is the proprietor of the mark from those of others.
Certification trade mark means a mark capable of distinguishing the goods or services in connection with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services in the name as proprietor of certification trade mark of that person.
INFRINGEMENT OF TRADE MARK
Infringement of trade mark occurs when a person other than the registered proprietor uses the same mark or a deceptively similar mark in relation to the same goods or services for which the mark is registered .When there is infringement of trade mark the proprietor of trade mark can file a suit for infringement and obtain an order of injunction or damages .He can also sue for accounts of profit. A suit for infringement is to be instituted in a district court within 3 years.
Where there is an infringement of good will of another person the aggrieved person can file a suit for the tort of passing off .The defendant is liable for the tort of passing off under the following circumstances.
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