Copyrights and its related Rights and Information Technology Related Intellectual Property Right

Ques.No.1 Give a detail account of licensing of a copyright with suitable examples. Ans.No.1: The Copyright Act and rules made there under contain elaborate provisions regarding licensing of Copyright. Licensing under the copyright law can be either voluntary or nonvoluntary. Licensing can be done not only with respect to the existing work but also with respect to the future works. Voluntary Licensing: The owner of the Copyright in any existing or future work may grant any interest in the right by license. As regards the future works the license shall take effect only when the works comes into existence. For a license to be valid it must be in writing and signed by either the owner or his duly authorized agent. Compulsory Licensing : Compulsory Licensing can be invoked under certain circumstances with respect to both published works and unpublished works. Compulsory licenses can also be obtained for the purposes of production and publication of the translation of works. The procedure for obtaining compulsory licensing with respect to the Indian works and foreign works is different. Published Works: With respect to the Indian works published or performed in public, compulsory licenses can be obtained by making a complaint to the Copyright Board on the ground that the owner has: Refused to re-publish or allow the republication of the work or has refused to allow the performance of the work in public and by reason of such refusal the work is withheld from the public. Refused to allow the communication of the work to the public by broadcast of the work or work in the sound recording on such terms, which the complainant considers reasonable. Procedure Before granting license, the Copyright Board shall give an opportunity of hearing to the Copyright owner. If the Board is satisfied that the reason for refusal is not reasonable, it shall grant license subject to payment of such conditions and such compensation as it deems fit.

Unpublished Works: Compulsory licenses can also be obtained with respect to the unpublished works by making an application to the Copyright board, if the author of the work:

Dead; or Is unknown; or Cannot be traced; or

Cannot be found Before making an application in respect of an unpublished work the applicant is required to

publish his proposal in one issue of a daily newspaper in the English language having circulation in major part of the country and also in one issue of any daily newspaper in that language. The procedure for license for unpublished work is same as that for translation of work Licenses for Translation of Works An application for production and publication of a literary and dramatic in any language can be made after a period of seven years from the date of first publication of the work. Where the translation of a foreign work in any language, in general use in India, is required for the purposes of teaching, scholarship or research, an application for license can be made after the expiry of three years form the date of first publication of the work. Where such a translation has to be made in any language not in general use in India, an application can be made after the expiry of one year from the date of publication of the work. In this case the license shall be granted subject to the conditions that the copies of the translation shall not be exported outside India and that every copy shall contain the notice in the language of translation that the copy is available for distribution only in India. In order to successfully prosecute the application for the grant of license, the applicant must establish the following facts:

The translation of the work in the language mentioned in the application has not been published by the owner or his authorized agent within a period of seven years, three years or one year as the case may or the copies are out of print.

The applicant had requested to the owner for authorization to produce and publish the work but was denied the authorization or was unable to find the owner after due diligence.

Where the applicant was not able to locate the owner, he had sent a copy of the request for such authorization to the published via registered airmail.

A period of six months has elapsed in case of an application for the translation of the work in any language and a period of nine months in case of translation of any foreign work in any language in use in India has elapsed since making of the application and the translation of the work in that language has not been published by the owner within that period.

The applicant is competent to produce and publish a correct translation of the work and posses the means to pay to the owner of the copyright the royalties payable to him.

The author has not withdrawn from circulation copies of the work.

Ques.No.2 Explain the following: a) Certifying authority and qualification of Certifying authority b) Subscriber and certifying authority and duties of subscriber c) Offences and penalties of IPR and Applicability of IPRs Ans.2(a) Certifying authority and its qualifications: Certifying authority, a trusted third-party organization or company that issues digital certificates used to create digital signatures and public-private key pairs. The Certificate Authority vouches for the identification of the business as an assurance to anyone exchanging personal information such as name, address, credit card, bank records or medical records. All such information is traded in encrypted form between the two parties, with the digital certificate acting as a positive ID of trust to the public. CAs are a critical component in data security and electronic commerce because they guarantee that the two parties exchanging information are really who they claim to be. Certification authorities Licensure Qualifications: 1) To obtain or retain a license, a certification authority must: (a) Provide proof of identity to the secretary; (b) Employ only certified operative personnel in appropriate positions; (c) File with the secretary an appropriate, suitable guaranty, unless the certification authority is a city or county that is self-insured or the department of information services;

(d) Use a trustworthy system; (e) Maintain an office in this state or have established a registered agent for service of process in this state; and (f) Comply with all further licensing and practice requirements established by rule by the secretary. (2) The secretary may by rule create license classifications according to specified limitations, and the secretary may issue licenses restricted according to the limits of each classification. (3) The secretary may impose license restrictions specific to the practices of an individual certification authority. The secretary shall set forth in writing and maintain as part of the certification authority's license application file the basis for such license restrictions. (4) The secretary may revoke or suspend a certification authority's license, in accordance with the administrative procedure act, chapter 34.05 RCW, for failure to comply with this chapter or for failure to remain qualified under subsection (1) of this section. The secretary may order the summary suspension of a license pending proceedings for revocation or other action, which must be promptly instituted and determined, if the secretary includes within a written order a finding that the certification authority has either: (a) Utilized its license in the commission of a violation of a state or federal criminal statute or of chapter 19.86 RCW; or (b) Engaged in conduct giving rise to a serious risk of loss to public or private parties if the license is not immediately suspended. (5) The secretary may recognize by rule the licensing or authorization of certification authorities by other governmental entities, in whole or in part, provided that those licensing or authorization requirements are substantially similar to those of this state. If licensing by another government is so recognized: (a) RCW 19.34.300 through 19.34.350 apply to certificates issued by the certification authorities licensed or authorized by that government in the same manner as it applies to licensed certification authorities of this state; and (b) The liability limits of RCW 19.34.280 apply to the certification authorities licensed or authorized by that government in the same manner as they apply to licensed certification authorities of this state.

(6) A certification authority that has not obtained a license is not subject to the provisions of this chapter, except as specifically provided. Ans.No.2 (b) Subscriber and certifying authority and duties of subscriber: Subscriber:
1. A person, company, etc., that subscribes, as to apublication or concert series. 2. A homeowner, apartment dweller, business, etc., that pays amonthly charge to be connect

to a television cableservice.
3. A person who promises to donate a sum of money, purchasestock, etc.

Duties of subscriber: 1) Generating key pair. Where any Digital Signature Certificate, the public key of which corresponds to the private key of that subscriber which is to be listed in the Digital Signature Certificate has been accepted by a subscriber, then, the subscribe shall generate the key pair by applying the security procedure. 2) Acceptance of Digital Signature Certificate. (a) A subscriber shall be deemed to have accepted a Digital Signature Certificate if he publishes or authorizes the publication of a Digital Signature Certificate(i) to one or more persons; (ii) in a repository, or otherwise demonstrates his approval of the Digital Signature Certificate in any manner. (b) By accepting a Digital Signature Certificate the subscriber certifies to all who reasonably rely on the information contained in the Digital Signature Certificate that(i) the subscriber holds the private key corresponding to the public key listed in the Digital Signature Certificate and is entitled to hold the same; (ii) all representations made by the subscriber to the Certifying Authority and all material relevant to the information contained in the Digital Signature Certificate are true; (iii) all information in the Digital Signature Certificate that is within the knowledge of the subscriber is true. 3) Control of private key.

(a) Every subscriber shall exercise reasonable care to retain control of the private key corresponding to the public key listed in his Digital Signature Certificate and take all steps to prevent its disclosure to a person not authorized to affix the digital signature of the subscriber. (b) If the private key corresponding to the public key listed in the Digital Signature Certificate has been compromised, then, the subscriber shall communicate the same without any delay to the Certifying Authority in such manner as may be specified by the regulations. Ans. No.2(c) Offences and penalties of IPR and Applicability of IPRs: Offense against intellectual property; penalties. (1) An offense against intellectual property is the intentional: (a) Destruction, insertion or modification, without consent, of intellectual property; or (b) Disclosure, use, copying, taking or accessing, without consent, of intellectual property. (2) Whoever commits an offense against intellectual property shall be punished, upon conviction, by a fine of not more than One Thousand Dollars ($1,000.00), or by imprisonment for not more than six (6) months, or by both such fine and imprisonment. However, when the damage or loss amounts to a value of One Hundred Dollars ($100.00) or more, the offender may be punished, upon conviction, by a fine of not more than Ten Thousand Dollars ($10,000.00) or by imprisonment for not more than five (5) years, or by both such fine and imprisonment. (3) The provisions of this section shall not apply to the disclosure, use, copying, taking, or accessing by proper means as defined in this chapter. Ques. No.3. Write note on the following: a) Work of joint authorship b) Nationality requirement for ownership of copyright. c) Assignment of copyright Ans. No.3 (a) Work of joint authorship: The "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. 1. This section applies to a literary, dramatic, musical or artistic work that is a work of joint authorship.

2. The right of attribution of authorship in respect of the work is a right of each joint author to be identified as a joint author. 3. An act of false attribution in respect of the work infringes the right of each joint author not to have authorship of the work falsely attributed. 4. The right of integrity of authorship in respect of the work is a right of each joint author. 5. The consent of one joint author to any act or omission affecting his or her moral rights in respect of the work does not affect the moral rights of the other joint author or other joint authors in respect of the work. Ans. No.3 (b) Nationality requirement for ownership of copyright: The Copy right Act does not lay down any condition that the author of a work in order to acquire ownership of copyright should be a citizen of India. However, the subsistence of copyright depends on the following nationality requirements: Published work: The work must be published in India or when published outside India, the author must be a citizen of India at the date of publication (if alive at that date) or if dead at the time of death. Unpublished work: (Other than architectural works). The author at the time of making the work must be a citizen n of India or domicile in India Where the making of an unpublished work is extended over a considerable period of time , the author of the work will be deemed to be a citizen of, or domicile in, that country of which he was a citizen or wherein he was domiciled for any substantial part of that period. Ans. No.3(c) Assignment of copyright: An assignment of copyright is an outright transfer of some or all of the rights of a copyright owner. (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof: Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. (2) Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not

assigned, shall be treated for the purposes of this Act as the owner of copyright and the provisions of this Act shall have effect accordingly. (3) In this section, the expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence. Ques. No.4. Write about the distinction between contract of service and contract for service. Ans.No.4 These are the common-law terms that are used to distinguish employees from persons who are self-employed. The terms are confusing and are not defined anywhere in legislation. The term: contract of service relates to a person in employment (as in the case of a domestic servant who is described as being in service) contract for services relates to a person who is self-employed and who provides services to clients. The term contract of service is, however, referred to in the employment and tax legislation. A person who works under a contract of service is:

an employee for payroll purposes, and an employee for employment rights purposes, and a worker for other employment rights purposes.

In contrast, a person who works under a contract for services, i.e. a self-employed person, is neither an employee nor a worker. There is no requirement for an employer to put such a person on the payroll; rather payment may be made on invoice. There is no entitlement to any of the employment rights available to employees and workers. Traditionally, there are two key tests to identify an employee, i.e. a person who works under a contract of service. These are:

mutuality of obligation, i.e. both parties to the contract have obligations to each other, the employee to perform work as directed, the employer to pay for the work performed the degree of control exercised by the employer over the work performed by the employee.

Other factors, however, have been taken into consideration when courts and tribunals have endeavored to distinguish between employment and self-employment. These include:

whether the individual must perform the work personally, or is able to send a qualified substitute the nature of the pay and benefits that are provided by the employer whether or not the individual has a business structure who decides on how the contract should be performed the extent of the financial risk borne by the individual who provides the materials and equipment necessary for the work.

The duration of the contract is also important; the longer the engagement, the more likely it is that the relationship is employment. Another simple way of distinguishing employment from self-employment is to consider what it is that the employer is buying:

if the employer is buying an employee, there will be a lengthy recruitment process in order to find just the right person

if the employer is buying a service, the person who will provide the service is likely to be selected by recommendation or simply by choosing an ad in Yellow Pages.

A person who is self-employed in one kind of work may also be an employee in some other kind of work. A self-employed tradesman who works in a pub in the evenings would have to go on the pubs payroll for that evening work. The fact that a self-employed person is registered as a subcontractor under the Construction Industry Scheme, or has a VAT registration number, or a self-employed reference number, does not mean that that person is self-employed in every job the person does. HM Revenue & Customs (HMRC) describes the process of assessing employment or selfemployment as picture-painting. In other words, a persons employment status cannot be properly identified unless the whole picture is considered. One particular factor, such as whether the employer or the individual provides the equipment and materials, does not, in itself, prove employment or self-employment. All of the relevant factors must be considered and, in all cases,

it is the employer that must make the decision. The employer has all of the liabilities if a person is wrongly identified as being self-employed. In most cases it is not difficult to correctly recognize employment and self-employment. The problem area is contractors, whose work often demonstrates factors that point to both employment and self-employment. If a self-employed person believes that a client has wrongly decided to treat the working relationship as a contract of service, there are two options: 1. Use the online interactive Employment Status Indicator provided by HMRC. It may be used by employers and individuals but its reliability depends on the accuracy by which the questions are answered. 2. The parties to the contract can ask for the situation to be reviewed by a Status Inspector in the employers tax office. At the end of the day, however, it is the employer who must decide whether a particular person is working under a contract of service or a contract for services and, in the event of a compliance audit by HMRC, bear the heavy financial consequences of getting it wrong. Ques. No.5. Explain the work for sculpture including caste and models and work of artistic craftsmanship. Ans. No. 5 Explain work for sculpture including caste and models: Sculptors are artists who mold and join materials including fabric, clay, plastic, glass, wire or metal to create threedimensional art. Sculptors also carve and cut images from blocks of plaster, wood or stone. Besides carving, sculptors may use welding or mold materials by hand using sculpting tools or caste and fire clay. Their finished products may range from realistic to stylized or abstract, depicting people, nature or events. Because they typically work with hard materials such as marble, bronze and stone, their work is generally durable and permanent. Sculptors feature two types of knowledge requirements, which include fine arts and design. Fine art knowledge pertains to theories and techniques needed for composing, producing and performing works of sculptor. On the other hand, design involves knowledge of design methods, including tools and principles needed for producing blueprints, precision technical plans, models and drawings. Work of artistic craftsmanship: Section 4(1): Copyright, Designs and Patents Act 1988 UK does not define works of artistic craftsmanship, however whether work qualifies for copyright

protection as a work of artistic craftsmanship requires the claimant to satisfy the requirements that the work has: 1. Artistic quality and 2. Craftsmanship. Artistic quality is generally considered to be satisfied by some real or aesthetic appeal with the resultant work being a work of art. Craftsmanship is characterized by sound workmanship, demonstrated by skilful labour and pride in the production of the work taking into account the materials used and tooling to produce the article. Craftsmanship may be demonstrated in works created by a handicraft and equally by using a lathe and computer. The critical and deciding factor into whether a work is considered a work of artistic craftsmanship is the original intention of the artist in creating the work. Craftsmanship which attracts copyright, and that copyright is in the person who exercises that craftsmanship provided it is artistic. Artistic is defined as a work (which) appeals to the aesthetic tastes of those who observe it, even if such an article is utilitarian. And craftsmanship is defined as a a useful handmade object Consequently, a work of artistic craftsmanship is defined as a practical utility which (derives) its owner value because of its artistic character, as opposed to its commercial operation. a work of artistic craftsmanship must not turn (to) assessing the beauty or aesthetic appeal of a work or assessing any harmony between its visual appeal and its utility. The determination turns on assessing the extent to which the particular work's artistic expression, in its form, is unconstrained by functional considerations. Ques. No.6 Give a detailed account on the cinematographic film and sound recording. Ans.No.6 Cinematographic film: Cinematography (from Greek: kinema- "movement" and graphein- "to record") is the making of lighting and camera choices when recording photographic images for cinema. "cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. Term of copyright in cinematograph films.-In the case of a cinematograph

film, copyright shall subsist until 67 years from the beginning of the calendar year next following the year in which the film is published. "Sound recording" means a recording of sounds from which such sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. Sound recording and reproduction is an electrical or mechanical inscription and recreation of sound waves, such as spoken voice, singing, instrumental music, or sound effects. The two main classes of sound recording technology are analog recording and digital recording. Term of copyright in records.-In the case of a 68[sound recording], copyright shall subsist until 69 years from the beginning of the calendar year next following the year in which the 70 [sound recording] is published. Ques.No.7 Explain the following:
a) artistic and dramatic works

b) musical works c) work of architecture Ans. No. 7 (a) Artistic works means- a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, an architectural work of art; and any other work of artistic craftsmanship. The work need not possess any artistic quality but he author must have bestowed skill, judgment and effort upon the work. A poster used in advertisement is an artistic work. But advertisement slogans consisting of a few words only are not copyright matter. "Dramatic work" includes any piece for recitation, choreographic work or entertainment in dumb show, the scenic arrangement or acting form of which is fixed in writing or otherwise but does not include a cinematograph film. (b) Musical works: A musical work consists of the musical notes and lyrics (if any) in a musical composition. [1] A musical work may be fixed in any form, such as a piece of sheet music or a compact disc. [2] Musical works may be "dramatic," i.e., written as a part of a musical or other dramatic work, or "nondramatic," i.e., an individual, free-standing composition.

A holder of a musical work copyright is typically a composer, who authors the work, or a music publisher, who purchases copyrights from composers and exercises the rights of those composers. Holders of copyright in musical works have the right to do or to authorize the:
1. reproduction of the copyrighted musical work; 2. preparation of derivative works based on the copyrighted musical work; 3. distribution of the musical work to the public by sale, rental, lease or lending; 4. performance of the musical work publicly; and 5. display of the musical work publicly.

(c) Work of architecture: "work of architecture" means any building or structure having an artistic character or design, or any model for such building or structure Which one of the statements below follows logically from the statements in the passage? (1) Unobtrusive architecture is both inviting and functional. (2) Modern architects who let their strong personalities take over their work produce buildings that are notunobtrusive. (3) An architect with a strong personality cannot produce buildings that functional well for the public. (4) A work of architecture that takes second place to the environment functions well for public use. (5) A work of architecture cannot simultaneously express its architects personality and be functional for public use.