COPYRIGHT: STEPPING INTO PUBLIC DOMAIN

This article was written by Jessica Kaur a student of Symbiosis Law school, Noida.

Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work. [1]

The main objective of the Copyright Act was to instigate and encourage original and innovative ideas on which the author could exercise exclusivity in return of the labour, effort and time he/she has put into it. However, a restriction has been put to this by limiting the time period for which he/she can enjoy this exclusivity so that ultimately the public is benefitted from the work.

Why is Copyright protection necessary?

Creativity and innovation demands space, freedom and security. Copyright protection gives that much needed security to the author. It encourages new ideas and a favorable climate for authors to come up with unconventional and new ideas which secure their credit to their works and protect it from others copying or exploiting it as their own without giving the original author any benefit of it. Copyright protection gives exclusive control to the author to control and use of their work by making copies, performing in public, and broadcasting, use on-line, etc. in return of royalties’ and appropriate financial reward.

In the twentieth century, the internationally accepted term of Copyright since the Berne Convention, 1971 is: life of the author and 50 years post mortem auctoris(after the death of the author)[2].This was the term set out in India under the Copyright Act, 1911.

The Copyright Act, 1957, grants an author protection for a term of 60 years after the death of the author(section 22). Section 26 and 27[3] of the Copyright Act prescribe that copyright in cinematograph films and sound recordings respectively, shall subsist until 60 years beginning from the calendar year next following the year in which the film /sound recording is published. However, a copyright owner or their heirs can always reclaim their work from the public domain as long as the copyright protection period subsists.

Stepping into Public Domain:

The expiration of copyright protection is perhaps the most important means by which a work enters the public domain. As the work enters the public domain 60 years after the death of the author, people almost forget to keep track that their favorite work is now free from any copyright protection and they do not require to buy it. It is free for the public to access, use and interpret in any way they like.

This raises several repercussions as the work can be misused or misinterpreted, robbing away its pristine characteristics. For example this year the New Year saw the release of the two monumental autobiographies into the public domain, Hitler’s autobiography Mein Kampf and the Diary of Anne Frank.[4]  Considering the sensitive issues these work involve, there is possibility of them being misinterpreted and creating chaos.

The second issue that a copyright protection raises is the reasonable period of protection that it can enjoy. It is 60 years after the death of the author in India while in Europe its 70 years after the death of the author. To prevent expiration of the US works from falling into public domain, the Congress in the United States of America once again changed the term of copyright protection with the Copyright Term Extension Act, 1998 (Also known as Sonny Bono Copyright Term Extension Act of 1998 ).  This legislation lengthens the term of copyright for works created on or after January 1, 1978 to “lifetime of the author plus 70 years,” and extends copyright for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. The Act extended the Mickey Mouse copyright protection out to 2023 and hence is also known as Mickey Mouse Protection Act.[5]

Therefore, such difference in duration of copyright protection in different countries need to be adjusted and made uniform. An ideal copyright protection would mean that it benefits the author as well as the public by preventing monopoly over the work. Keeping this and the minimum period required by the author to take reasonable advantage and recover his costs, the term of copyright protection should be adjusted and made universal.[6]

The famous “Birthday Song” case:

The recent major development came from California district court, this time when a judge ruled that there was no evidence to suggest that Warner/Chappell, the publishing arm of Warner Music, owned the copyright over the iconic Happy Birthday song. On September 22, 2015, federal judge George H. King ruled that the Warner/Chappell copyright claim over the lyrics was invalid.[7] The 1935 copyright held by Warner/Chappell applied only to a specific piano arrangement of the song, not the lyrics or melody. On February 8, 2016, Warner/Chappell agreed to pay a settlement of $14 million to those who had licensed the song, and would allow a final judgment declaring the song to be in the public domain.

Mystery of Sherlock Holmes:

The world famous literary character, detective Sherlock Holmes entered into the public domain with much controversy. The real controversy began when the heirs of Sir Author Conn Doyle’s estate threatened to sue the editor of a book of original Holmes fiction if the author didn’t pay licensing fees. It was also in furtherance of a book which changed the character of Sherlock to be more amicable and friendly. [8] Though the 70 years period was over of the European copyright, out of a total of 56 short stories and four novels to feature Holmes, a final 10 short stories that Conan Doyle published between 1923 and 1927 are still protected by copyright in the United States. The US court stated that Sherlock was to remain in public domain. The court held that “Creating a longer term on copyright for characters would reduce the number of works flowing into the public domain. This, in turn, would make it more difficult or more expensive for future artists to work, since a great deal of art draws on earlier works”.[9]

Indian works such as the impeccable films of the Raj Kapoor and V. Shantaram, poems of renowned Punjabi poet Teja Singh are on the verge of falling into the public domain i.e. anyone in the world can commercially exploit these films once their copyright term expires. Making such inspirational and historical works accessible freely to the public after a reasonable period of time is necessary as it encourages young artists to bring forth their interpretations and work inspired from their idols without incurring huge expenses of licensing fee and royalties.

[1] World Intellectual Property Organization. “Understanding Copyright and Related Rights” (PDF). WIPO. p. 8.

[2] Berne Convention for the Protection of Literary and Artistic Works (1886) http://www.wipo.int/treaties/en/ip/berne/summary_berne.html

[3]  Indian Copyright Act ,1957

[4] http://www.selvamandselvam.in/blog/public-domain-day-the-day-that-copyright-endeth /

[5] http://naiknaik.com/public-domain-need-for-international-harmonization-of-copyright-term-of-different-countries/

[6] http://nopr.niscair.res.in/bitstream/123456789/3552/1/JIPR%2011%281%29%2043-52.pdf

[7] Rupa Marya, et al. v. Warner/Chappell Music, Inc., et al.” (United States District Court for the Central District of California. Case Number CV-13-4460-GHK.

[8] https://www.techdirt.com/articles/20150524/17521431095/sherlock-holmes-case-never-ending-copyright-dispute.shtml

[9] Leslie Klinger v. Conan Doyle Estate, Ltd., No. 14-1128 (7th Cir. 2014). Retrieved from http://law.justia.com/cases/federal/appellate-courts/ca7/14-1128/14-1128-2014-08-04.html