WHAT IS COPYRIGHT: ALL YOUR QUESTIONS ANSWERED

Part 1

Copyright defined as is literally the word itself – “the right to copy”. A person who owns a copyright in a work is the only person who can copy that work or grant permission to someone else to copy it. Copyright is automatically created when a person creates a copyrightable work i.e. if you write an original poem on a piece of paper, you have created a copyrightable work. 

To understand copyright better, we have addressed some important common questions below.

A. What are the requirements for a work to be eligible for copyright protection?

There are three basic requirements that a work must meet to be protected by copyright. They are:

1. Originality: work must be created independently by the creator. In other words, the work cannot be copied from another work.
2. Creativity: a work must possess some minimal degree of creativity to satisfy this requirement.
3. Fixation: work must be fixed in a tangible medium of expression i.e. the work must be captured in a permanent or stable medium such that the work can be perceived, reproduced or communicated for more than a transitory period of time. Copyright protection attaches automatically to an eligible work the moment the work is fixed.

Example: a songwriter pens down fresh lyrics for a composition. Here, the songwriter created the work (lyrics) independently, without copying lyrics from existing songs and fixed the work in a tangible form (wrote it on paper). Thus, the work (lyrics) is eligible for copyright protection.

B. What type of works are protected under copyright law?

As mentioned above, copyright law protects original works of authorship. A non-exhaustive list of copyrightable work includes:

1. Literary works – such as novels, poems, periodicals, essays, articles and so on. It also includes computer programs/software.
2. Musical works including any accompanying words – this category of works includes any work that consists of musical notes and lyrics in a musical composition.
3. Motion pictures and other audiovisual works – such as videos, motion pictures and television shows and so on.
4. Sound recordings – a sound recording is a work that results from the fixation of sounds without a visual component, whether musical or spoken. This category of works includes podcasts, recorded speeches.
5. Pictorial, graphic, and sculptural works – this category of works includes two and three-dimensional works of fine, graphic and applied art, maps, and diagrams.
6. Dramatic works including any accompanying music – a dramatic work is one in which a series of events is presented to an audience by characters through dialogue and action. This category of works includes plays, operas, and musicals.
7. Pantomimes and choreographic works – such as a dance routine or dance choreography.
8. Architectural works – this category includes architectural plans, buildings, and any associated drawings.

In addition to this list of works the copyright law also protects certain compilations and derivative works. A derivative work is a new work created from a pre-existing copyrighted work. In simple terms, a derivative work is a “new version” of existing work. They include musical arrangements, motion pictures, art reproductions, sound recordings, translations, adaptations, functionalization, and dramatization. Only the copyright owner of the original work has the right to create derivative works unless such right is assigned or licensed by the owner to another person/entity. Example: a Spanish translation of the original English Harry Potter books or Harry Potter movies based on the original Harry Potter books.

C. What is NOT protected under copyright law?

Copyright does not protect the following:

1. Ideas
2. Procedures, methods, systems, processes, concepts, principles and discoveries
3. Works that are not fixed in a tangible form such as an improvisational speech that is not written down
4. Titles, short phrases, and slogans
5. Familiar symbols or designs such as “STOP” sign
6. Mere variations of typographic ornamentation, lettering, or coloring
7. Mere listings of ingredients or contents

D. Who is an author?

The creator of the original expression in a work is its author, for example, the songwriter is the author of the lyrics of a song. The author is also the owner of copyright unless there is a written agreement by which the author assigns the copyright to another person or entity.

E. How long does a copyright subsist?

In general, a copyrighted work is protected for the length of the creator’s life plus another 70 years after the creator’s death. In the case of joint works i.e. work having multiple creators, the term lasts for 70 years after the death of the last surviving creator. Works made for hire, anonymous and pseudonymous works are protected for a term of either 95 years from the year of first publication or 120 years from the year of creation, whichever is shorter. 

When the term of protection for a copyrighted work expires, the work enters into the public domain whereby anyone is free to use the work without taking permission from the creator.

F. What are the exclusive rights of a copyright owner?

The Copyright Act grants copyright owners certain exclusive rights. They are:

1. Right to reproduce the copyrighted work in copies or phonorecords (physical or digital format)
2. Right to create derivative works based upon the copyrighted work i.e. make a new work using preexisting copyrighted work.
3. Right to distribute copies or phonorecords of the copyrighted work to the public by sale, rental, lease or lending
4. Right to display copyrighted work publicly – only literary, musical, dramatic, choreographic works and pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual works are granted this right
5. Right to public performance i.e. the copyright holder has control over when the work is performed publicly
   • Only literary, musical, dramatic, choreographic works and pantomimes, and motion pictures and other audiovisual works are granted the right to public performance
   • In the case of sound recordings, the right to public performance is granted to perform the copyrighted work only by means of a digital audio transmission

G. What are “works made for hire”?

Typically, ownership of the copyright initially resides in the creator of the work. However, this rule has exceptions where the creator is not the initial owner of the copyright — (1) when a work is created by an employee within the scope of their employment, and (2) when a work is created upon a special order or commission. In such cases, the employer, not the creator, is considered to be the copyright owner. Such works are called “works made for hire.”

1. When a work is created by an employee within the scope of their employment: To qualify as “work made for hire” under this exception, a work must be a result of employee-employer relationship i.e. within the employee’s scope of employment. Employees are usually made to sign an agreement by employers stating that any works resulting from their employment are works made for hire. However, signing the agreement alone does not qualify as an employee-employer relationship. Factors like employee benefits, the tax treatment of employees, method of payment, skills required to create work, employment duration and so on play a very important role in deciding whether a work qualifies as “work made for hire” under this exception. 

Example: if a software developer creates a new software program as a part of his job at a company, then the company will own the copyright in the software program. On the other hand, if the software developer creates a song at work, the song will not be a work made for hire since it is outside the developer’s scope of employment, and the company will not own the copyright in the song.

2. When a work is created upon a special order or commission: To qualify as “work made for hire” under this exception, a work must (a) be specially ordered or commissioned, (b) there must be a written agreement between the parties stating that the work is a work made for hire and (c) the work must be used in one of the categories listed in the Copyright Act. The law states that in order to qualify as specially ordered/commissioned work made for hire, the work must be used as:

• a contribution to a collective work
• a part of a motion picture or other audiovisual work
• a translation
• a supplementary work
• a compilation
• an instructional text, test, answer material for a test
• an atlas

Example: a company commissions a sculptor to create a sculpture. Irrespective of whether the sculptor signed an agreement with the company, the work (sculpture) will be owned by the sculptor, not the company because the sculpture is not included among the uses mentioned above.