Copyright: Protecting your Expressions

Priyanka Sardana and Vijay Sardana

Acording to Berne Union for the Protection of Literary and Artistic Property (Berne Convention) “Copyright” is a protection that covers published and unpublished literary, scientific and artistic works, whatever the form of expression, provided such works are fixed in a tangible or material form. This means that if one can see it, hear it and/or touch it - it may be protected. For example: design on your packaging, design of your company logo or design of your trade mark etc. come under purview of the copyright. Any advertisement script, an essay, a play, a song, a funky original dance move, a photograph, HTML coding or a computer graphic that can be set on paper, recorded on tape or saved to a hard drive, may be protected. Copyright laws grant the creator the exclusive right to reproduce, prepare derivative works, distribute, perform and display the work publicly. Exclusive means only the creator of such work, not anybody who has access to it and decides to use it.

A copyright is, therefore, a form of intellectual property that grants its holder the legal right to restrict the copying and use of an original, creative expression, such as a literary work, movie, musical work or sound recording, painting, computer programme, or industrial design for a defined period of time.

The rights enforceable under copyright protection cover the use only of intangible creations–the story told within a book is protected from misuse as opposed to the printed copy itself, or the form of a sculpture as opposed to the actual carved rock. Copyrights do not protect ideas, however, which are the domain of patents (if at all), but only the particular expression of an idea. A copyright on the cartoon character on packaging, for example, would not prevent others from creating cartoon character, but only from too closely copying the character and traits of that cartoon which is on your packaging in particular.

Copyrights function similarly to patents, in that both grant exclusive rights over their respective subject matter that is enforceable against everyone (with some exceptions, discussed below). This is in contrast to trademark protection, which is almost always only enforceable against competitors in the same product market, and only against certain limited commercial uses. Also in contrast to trademarks, copyright (and patent) protection is set for a limited, statutorily-defined number of years, during which the copyright owner does not actually have to make use of his work in order to keep others from doing so. After the expiry of the term, the copyrighted work enters the public domain and is available for anyone to freely.

What are the Rights of copyright holder?

A copyright holder typically has exclusive rights:

  • To make and sell copies of the work (including, typically, electronic copies)
  • To import or export the work
  • To make derivative works
  • To publicly perform the work
  • To sell or assign these rights to others

Meaning of the phrase “exclusive right” is that the copyright holder and only the copyright holder is allowed to do these things; everyone else is prohibited from doing them without the copyright holder’s consent. Copyright is often called a “negative right”, to stress that it has less to do with permitting people (e.g. authors) to do anything, and more to do with prohibiting people (e.g. readers, viewers, or listeners) from doing something: reproducing the copyrighted work.

Transfer of rights

Copyrights may be granted, sold, or relinquished. Very often, a copyright holder will, by contract, transfer his copyrights to a corporation. For example, a company can sell its designs to another company against consideration, a musician who records an album will sign an agreement with a record company in which the musician agrees to transfer all copyrights in the recordings to the company in exchange for royalties and other terms. One might ask why a copyright holder would ever give up his rights. The answer is that companies generally have production and marketing capabilities far beyond that of the author. In the digital age of music, music may be copied and distributed for a minimal cost through the Internet, but record labels attempt to provide the service of promoting and marketing the artist so that the work can reach a much larger audience. A copyright holder does not have to transfer all rights completely. Some of the rights may be transferred, or else the copyright holder may grant to another party a non-exclusive license to copy and/or distribute the work in a particular region depending upon the various commercial considerations and otherwise.

When does Copyright Protection begin, and what is required?

Copyright protection begins when any of the above described work is actually created and fixed in a tangible form.

Idea-expression divide

The idea-expression divide is a concept in copyright law which states that copyright does not protect ideas, information or function, but only the form of expression of ideas. Only the way in which something has been expressed is protectable by copyright.

For example, if a book is written describing a new way to design a package, a reader can freely use that method without being sued, but what is written in the book, the original expression of the idea, may not be copied. One might be able to obtain a patent for the method, but that is a different body of law. If there is art on the cover of the package, that art may also be copyrighted. If the book lists only facts, one might say that it is not original, but if the facts are selected and arranged in an original manner, the book may be copyrighted.

There are particular ideas that can only be expressed intelligibly in only one or a limited number of ways. Therefore even the expression in these circumstances is unprotected, or extremely limited to verbatim copying only.

When does Copyright Protection end, or expire?

If a copyright statement reads, “© Copyright 2005, Vijay Sardana.” does that mean that Vijay Sardana’s copyright expired in 2005? The dates that you see in a copyright statement do not refer to the dates that the owner’s material will expire and become public domain - they actually refer to the dates that the material was created.

When you see several dates in a copyright statement, it simply means that certain things were created in one year and modified later. It could also mean that new things were created and added in a later year. It most definitely does not refer to the date that a copyright will expire. Expiration of a copyright actually takes place much later, and this period of validity begins from the date that you see in the copyright statement. The Berne Convention establishes a general and minimum period that lasts the life of the author and fifty years after his (or her) death. Cinematographic works and photographic works have a minimum period of protection of 50 and 25 years upon the date of creation, respectively. This applies to any country that has signed the Berne Convention, and these are just the minimum periods of protection. A member country is entitled to establish greater periods of protection, but never less than what has been established by the Berne Convention.

The Famous © Symbol

Why does it say Copyright © 2005 Vijay Sardana? These are the dates of creation and/or modification of the layout, text, graphics and other material displayed in my literary work and saved it to my hard drive. That entitles the creator to claim copyright. Only the author and creator of this work, is entitled to use, reproduce and distribute this material unless someone else who wishes to use it obtains the prior written permission to use it as well, and only in the manner that the creator previously approves. What does this mean? That nobody may access the literary work and copy my layout, text or graphics unless a written permission is obtained. It means a consent to use the work, but only in the manner that is deemed appropriate.” This especially goes for those who want to use my material for business or any other lucrative purposes.

Would you let someone sell your design you’ve created for your business or any other purpose without your permission, and particularly without getting some of the profit? Anybody who uses copies or distributes your literary or design material in any manner, for commercial or personal purposes, without your written permission, would be committing an infringement of your copyright. If you, at any moment, detect a violation of your copyright by another individual or entity, you are entitled to assert a claim. It doesn’t matter if other party is a “newbie” or if they “don’t know any better”. As a principle of law states: “Ignorance of the Law does not make one exempt from compliance thereof.”


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