CLASS NOTE

COURSE: B.A. LL.B. 6TH SEMESTER

ACADEMIC YEAR: 2022
SUBJECT: LAW OF COPYRIGHT
TOPIC: OBJECT OF COPYRIGHT LAW

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic works
and producers of cinematograph films and sound recordings. In fact, it is a bundle of rights
including, inter alia, rights of reproduction, communication to the public, adaptation and
translation of the work. There could be slight variations in the composition of the rights
depending on the work.1

Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, no
civilized society can afford to ignore the basic requirement of encouraging the same. Economic
and social development of a society is dependent on creativity. The protection provided by
copyright to the efforts of writers, artists, designers, dramatists, musicians, architects and
producers of sound recordings, cinematograph films and computer software, creates an
atmosphere conducive to creativity, which induces them to create more and motivates others to
create.

IMPORTANT OBJECTIVES OF COPYRIGHT LAW

1. Copyright Encourages and Promotes Creativity

The objective of copyright is to promote the public good by encouraging and promoting cultural
and scientific activity. Copyright protects cultural works, the creative expression of thoughts and
ideas. These works are in a variety of forms, art works, music, novels and poetry. They are the
expression of a culture – its heritage, which is built on by each generation adding their own
perspective to the existing culture, which will enrich the lives of generations to come. To
demonstrate its importance to culture and society, copyright is recognized as one of the Human
Rights in the Universal Declaration of Human Rights. Consequently, the value and benefits
associated with copyright and the systems which support it cannot be underestimated.2

2. Copyright provides reward/incentive to creator/author

1
http://copyright.gov.in/Documents/handbook.html
2
https://www.accu.or.jp/appreb/10copyr/pdf_ws0810/c2_02.pdf
The copyright law encourages authors, composers and artists in creation of original work by
incentivizing them with an exclusive right to reproduce the works. The creation by the author
and protection of their creative works is the whole and prime concern ofthe object of copyright
law. The rights are granted to the author for a limited period of time. The Philosophy beneath the
law granting copyright with economic benefit lies in the conviction of encouraging the individual
effort by personal gain and it is the best way to advance public welfare through the intellects of
authors. The jurisprudence of copyright that has evolved attempts to balance protection with
dissemination: fostering an environment that ensures a fair return to authors and inventors while
simultaneously promoting learning, progress and development.3
3. Copyright provides legal protection unauthorized reproduction of work

There is no doubt that a literary, artistic or musical work is the creative work of an author, the
fruit of his or her labour and thus, considered to be his or her property. Copyright is granted to
authors and artists to protect their creative expression against unauthorised copying or
reproduction. It provides protection against unlawful reproduction of the author’s work by
others. The extent to which the owner is entitled to protection in his work and the interest of the
public are matter which would depend upon the statutory provisions.

4. Copyright law is intended to find a balance between interests of owners and users

Achieving the right balance between protecting the rights of creators over their works and the
access to those works by others is one of the key objectives of copyright law. There are two key
tools to this balance. The first of these are the limited nature of copyright itself, and the second
the role of exceptions to copyright.
Some common examples of the limitations of copyright include:
(i) Term Copyright protection is limited in time. The time period varies, but generally a
copyright owner has control over their works for the life of the creator plus an
additional 60 years. Once the copyright term expires, the copyright material becomes
part of the public domain.
(ii) (ii) Copyright owners are only entitled to control some uses of their works. For
example, copyright owners in books and journals do not generally control the rental
or lending of their works.
(iii) (iii) Expression of Ideas Further and most importantly, copyright law only protects
the expression of ideas not the underlying ideas themselves. This is to encourage the
reuse, criticism or discussion of the ideas contained in copyright works.4

5. Copyright recognizes natural right to property

3
https://shodhganga.inflibnet.ac.in/bitstream/10603/64184/9/09_chapter%202.pdf
4
https://www.accu.or.jp/appreb/10copyr/pdf_ws0810/c2_02.pdf
Copyright is the right to recognise a property right as the work originates from the mind of an
individual author. Hence, a book written by an author will be seen as the product of his mind, the
intellectual effort and inspiration and hence should be treated as their property and copying as
equivalent to stealing. The work created by an individual reflects the unique nature ofthem as an
individual, the natural rights arguments require that law allows the creator by protecting the
work, because it is an extension ofthe persona of its creator.

Copyright protects moral rights of author

Moral rights are the author's or creator's special right which includes the right to paternity and
the right to integrity. The right to paternity is the right of the author to claim authorship over his
work and have it attributed to him. On the other hand, the right to integrity permits the author to
restrain or claim damages in the event of any distortion, mutilation, modification or any other
untoward act done to his work. However, it is essential that such act in question should prejudice
the honor and reputation of the creator or author and such act should be done before the expiry of
the term of copyright in the work.5

Copyright disseminates works to the public

It is considered a social requirement and the public interest that, authors and other right owners
should be encouraged to publish their works so as to permit the widest possible dissemination of
works to the public at large. The primary policy objective of copyright is fostering an
environment for the generation, dissemination and acquisition of knowledge.

CRITICISM OF COPYRIGHT6

Present copyright system do not justify the policy's costs to society.

Criticism of copyright, perhaps outright anti-copyright sentiment is a dissenting view of the
current state of copyright law or copyright as a concept. Critical groups often discuss
philosophical, economical, or social rationales of such laws and the laws' implementations, the
benefits of which they claim do not justify the policy's costs to society.
Advocacy for change in the current system:
Different groups have different ideas of what that change should be.
1. Shorter copyright term:Some call for remission of the policies to a previous state—
copyright once covered few categories of things and had shorter term limits, or

5
https://www.mondaq.com/india/copyright/537094/moral-rights-under-copyright-law#:~:text=Moral%20rights
%20finds%20expression%20in,and%20the%20right%20to%20integrity.
6
https://en.wikipedia.org/wiki/Criticism_of_copyright
 2. Expansion of fair use: They may seek to expand concepts like Fair Use that allow
permission-less copying.
3. Abolition of copyright: Others seek the abolition of copyright itself.
Examples of Advocacy:
Opposition to copyright is often a portion of platforms advocating for broader social reform.
1. Orphan Works: Lawrence Lessig, a free-culture movement speaker, advocates for
loosening copyright law as a means of making sharing information easier or addressing
the orphan works issue.
2. Limiting copyright term and free access to download after 5 years: The Swedish
Pirate Party has advocated for limiting copyright to five year terms in order to legalize
the majority of its members' downloading of modern works.
3. Peer to peer file sharing: Pirate Cinema and groups like The League of Noble Peers
advance more radical arguments, opposing copyright per se. A number of anti-copyright
groups have recently emerged in the argument over peer-to-peer file sharing, digital
freedom, and freedom of information; these include the Association des Audionautes and
the Kopimism Church of New Zealand.

4. Communism and copyright:

In 2003, Eben Moglen, a professor of Law at Columbia University, published The dot
Communist Manifesto, which re-interpreted the Communist Manifesto by Karl Marx in
the light of the development of computer technology and the internet; much of the re-
interpreted content discussed copyright law and privilege in Marxist terms.
The measures by which we advance that struggle will of course be different in different
countries, but the following will be pretty generally applicable:

I. Abolition of all forms of private property in ideas.

II. Withdrawal of all exclusive licenses, privileges and rights to use of
electromagnetic spectrum. Nullification of all conveyances of permanent title to
electromagnetic frequencies.
III. Development of electromagnetic spectrum infrastructure that implements every
person's equal right to communicate.
IV. Common social development of computer programs and all other forms of
software, including genetic information, as public goods.
V. Full respect for freedom of speech, including all forms of technical speech.
VI. Protection for the integrity of creative works.
VII. Free and equal access to all publicly-produced information and all educational
material used in all branches of the public education system.
By these and other means, we commit ourselves to the revolution that liberates the human
mind. In overthrowing the system of private property in ideas, we bring into existence a
truly just society, in which the free development of each is the condition for the free
development of all.

5. peer-to-peer file sharing and copyright issues:

 Peer-to-peer file sharing is the distribution and sharing of digital media using peer-to-peer
(P2P) networking technology. P2P file sharing allows users to access media files such as
books, music, movies, and games using a P2P software program that searches for other
connected computers on a P2P network to locate the desired content.
Peer-to-peer file sharing technology has evolved through several design stages from the
early networks like Napster, which popularized the technology, to later models like the
Bit Torrent protocol. Microsoft uses it for Update distribution (Windows 10) and online
playing games use it as their content distribution network for downloading data.
What kinds of activities are probable violations of the Copyright Law?
Any of the following activities, if done without permission of the copyright owner:
I. Copying and sharing images, music, movies, television shows or other
copyrighted material through the use of P2P technology.
II. Purchasing a CD or DVD and then making copies for others.
III. Posting or plagiarizing copyrighted material on your personal Web space.
IV. Downloading anything of which you don't already own a copy (software, MP3s,
movies, television shows, etc.).
Fair use Exception:
Fair use is a concept that allows use of limited portions of a copyrighted work,
without the permission of the copyright owner, for purposes such as scholarship,
research, and criticism. Fair use must be judged according to the four criteria in the
Copyright Act:
I. Purpose and character of the use (why do you want to use it?).
II. Nature of the copyrighted work (what kind of work is it?).
III. Amount and substantially used (how much do you want to copy?).
IV. Effect on the potential market for or value of the work (will your copying
contribute to decreasing the value or demand for the work?).
Folsom v. Marsh, 9. F.Cas. 342 (C.C.D. Mass. 1841)

6. The grey album controversy:

The Grey Album is a mashup album by Danger Mouse, released in 2004. It mixes an a
cappella version of rapper Jay-Z's The Black Album with samples from The Beatles' self-
titled ninth album, commonly known as "The White Album".The Grey Album gained
notoriety when EMI attempted to halt its distribution despite approval of the project from
Jay-Z and the two surviving Beatles, Paul McCartney and Ringo Starr.
Reportedly over 400 sites participated including 170 that hosted the album with some
protesters stating that The Grey Album illustrates a need for revisions in copyright law to
allow sampling under fair use of copyrighted material, or proposing a system of fair
compensation to allow for sampling.

Jay-Z offered his thoughts on the album during an interview on NPR. "I think it was a
really strong album. I champion any form of creativity, and that was a genius idea—to do
it. And it sparked so many others like it … I was honored to be on—you know, quote-
unquote, the same song with The Beatles."
 Paul McCartney whilst commented:
It was really cool when hip-hop started, you would hear references in lyrics, you always
felt honored. It's exactly what we did in the beginning – introducing black soul music to a
mass white audience. It's come full circle. It's, well, cool. When you hear a riff similar to
your own, your first feeling is "rip-off." After you've got over it you think, "Look at that,
someone's noticed that riff."

McCartney said of EMI's reaction: "I didn't mind when something like that happened
with The Grey Album. But the record company minded. They put up a fuss. But I was
like, 'Take it easy guys, it's a tribute.’’
Jonathan Zittrain, professor of Internet law at Harvard Law School, comments that

As a matter of pure legal doctrine, the Grey Tuesday protest is breaking the law, end of
story. But copyright law was written with a particular form of industry in mind. The
flourishing of information technology gives amateurs and home recording artists
powerful tools to build and share interesting, transformative, and socially valuable art
drawn from pieces of popular cultures. There's no place to plug such an important
cultural sea change into the current legal regime.

7. Association des audionautes:

French group Association des audionautesproposes for France to legalise peer-to-peer
file sharing and to compensate artists through a surcharge on Internet service
provider fees (i.e. an alternative compensation system). Wired magazine reported that
major music companies have equated Ridouan's proposal with legitimising piracy.
The Association des Audionautes is a French lobby group founded by Aziz Ridouan,
Quentin Renaudo and Jean-Baptiste Soufron in October 2004 that supports Internet users
sharing files, including copyrighted material, over peer-to-peer networks.
It provides legal information to Internet users accused of copyright infringement.
8. decriminalisation of file sharing:
In January 2008, seven Swedish members of parliament from the Moderate Party (part of
the governing coalition), authored a piece in a Swedish tabloid calling for the complete
decriminalisation of file sharing; they wrote that "Decriminalising all non-
commercial file sharing and forcing the market to adapt is not just the best solution.
It's the only solution, unless we want an ever more extensive control of what citizens
do on the Internet."

9. In June 2015 a WIPO article named "Remix culture and Amateur Creativity: A
Copyright Dilemma" acknowledged the "age of remixing" and the need for a copyright
reform while referring to recent law interpretations in Lenz v. Universal Music Corp.
and Canada's Copyright Modernization Act.
Lenz v. Universal Music Corp., 801 F.3d 1126 (9th Cir. 2015), is a decision by the United
States Court of Appeals for the Ninth Circuit, affirming the ruling in 2008 of the US District
Court for the Northern District of California, holding that copyright holders must consider
fair use in good faith before issuing a takedown notice for content posted on the Internet
Stephanie Lenz posted on YouTube a home video of her child dancing to Prince's song "Let's
Go Crazy". Universal Music Corporation (Universal) sent YouTube a takedown notice
pursuant to the Digital Millennium Copyright Act (DMCA) claiming that Lenz's video
violated their copyright in the "Let's Go Crazy" song.

10. Public copyright license:

Groups that argue for using existing copyright legal framework with special licences to
achieve their goals, include the copyleft movement and Creative Commons. Creative
Commons is not anti-copyright per se, but argues for use of more flexible and open
copyright licences within existing copyright law.

11. Creative Commons: takes the position that there is an unmet demand for flexibility that
allows the copyright owner to release work with only "some rights reserved" or even "no
rights reserved." According to Creative Commons many people do not regard default
copyright as helping them in gaining the exposure and widespread distribution they want.
Creative Commons argue that their licences allow entrepreneurs and artists to employ
innovative business models rather than all-out copyright to secure a return on their
creative investment.

12. Economic arguments against copyright

Artificial scarcity

Copying Is Not Theft.

Copying is Not Theft by Nina Paley

There is an argument that copyright is invalid because, unlike physical property,

intellectual property is not scarce and is a legal fiction created by the state. The argument
claims that, infringing on copyright, unlike theft, does not deprive the victim of the
original item.

13. Historical comparison

It is unclear that copyright laws are economically stimulating for most authors, and it is
uncommon for copyright laws to be evaluated based on empirical studies of their impacts.

14. Information technology related concerns

One of the founders of Piratbyrån, Rasmus Fleischer, argues that copyright law simply
seems unable to cope with the Internet, and hence is obsolete. He argues that the Internet,
and particularly Web 2.0 have brought about the uncertain status of the very idea of
"stealing" itself. He argues that in an attempt to rein in Web 2.0, copyright law in the 21st
century is increasingly concerned with criminalising entire technologies, leading to recent
attacks on different kinds of search engines, solely because they provide links to files
which may be copyrighted. Fleischer points out that Google, while still largely
uncontested, operates in a gray zone of copyright (e.g. the business model of Google
Books is to display millions of pages of copyrighted and uncopyrighted books as part of a
business plan drawing its revenue from advertising).[citation needed] In contrast, others
have pointed out that Google Books blocks-out large sections of those same books, and
they say that does not harm the legitimate interests of rightsholders.

Fleischer's central argument is that copyright has become obsolete with regards to the
Internet, that the cost of trying to enforce it is unreasonable, and that instead business
models need to adapt to the reality of the Darknet.

Cultural arguments
Freedom of knowledge

"Free Beer" demonstrator supporting the "freedom of knowledge" idea: "Copyright is

preventing access to knowledge" (2007).
Groups such as Hipatia advance anti-copyright arguments in the name of "freedom of
knowledge" and argue that knowledge should be "shared in solidarity". Such groups may
perceive "freedom of knowledge" as a right, and/or as fundamental in realising the right
to education, which is an internationally recognised human right, as well as the right to a
free culture and the right to free communication. They argue that current copyright law
hinders the realisation of these rights in today's knowledge societies relying on new
technological means of communication and see copyright law as preventing or slowing
human progress.

Authorship and creativity

Lawrence Liang, founder of the Alternative Law Forum, argues that current copyright is
based on a too narrow definition of "author", which is assumed to be clear and
undisputed. Liang observes that the concept of "the author" is assumed to make universal
sense across cultures and across time. Instead, Liang argues that the notion of the author
as a unique and transcendent being, possessing originality of spirit, was constructed in
Europe after the Industrial Revolution, to distinguish the personality of the author from
the expanding realm of mass-produced goods. Hence works created by "authors" were
deemed original, and merges with the doctrine of property prevalent at the time.

Liang argues that the concept of "author" is tied to the notion of copyright and emerged
to define a new social relationship – the way society perceives the ownership of
knowledge. The concept of "author" thus naturalised a particular process of knowledge
production where the emphasis on individual contribution and individual ownership takes
precedence over the concept of "community knowledge". Relying on the concept of the
author, copyright is based on the assumption that without an intellectual property rights
regime, authors would have no incentive to further create, and that artists cannot produce
new works without an economic incentive. Liang challenges this logic, arguing that
"many authors who have little hope of ever finding a market for their publications, and
whose copyright is, as a result, virtually worthless, have in the past, and even in the
present, continued to write." Liang points out that people produce works purely for
personal satisfaction, or even for respect and recognition from peers. Liang argues that
the 19th Century saw the prolific authorship of literary works in the absence of
 meaningful copyright that benefited the author. In fact, Liang argues, copyright
protection usually benefited the publisher, and rarely the author.

Ethical issues
The institution of copyright brings up several ethical issues. Selmer Bringsjord argues
that all forms of copying are morally permissible (without commercial use), because
some forms of copying are permissible and there is not a logical distinction between
various forms of copying.

Edwin Hettinger argues that natural rights arguments for intellectual property are weak
and the philosophical tradition justifying property cannot guide us in thinking about
intellectual property.

Shelly Warwick believes that copyright law as currently constituted does not appear to
have a consistent ethical basis.

FACULTY: KRISHNENDU ROY SARKAR

Email: krishnenduroysarkar@gmail.com
Mobile: +91-7602366330