Joginder Singh Toor

PROPERTY generally known, is tangible or intangible property i.e. any possessions, resources, assets, lands, houses, belongings, moveable or immovable. It includes the most valuable one, the intellectual property, comprised of the quality of mind, the attribute, the virtue, the ability, the power arising out of idiosyncrasy, quirk or intellect. It is the least known and less-sort after. The trends are changing with the daily increasing awareness and legal protection being offered.

It’s different kinds and attributes are protected under different laws. The Copyright Acts in different countries with considerable variations, protect literary, artistic, dramatic and musical works. It does not cover historical or geographical or other subjects. The Patents Act cover and grant absolute monopoly in its term, to the inventor/producer. The Industrial Designs Act protects the shape, pattern, configuration or ornamentation of articles which the eyes can see. Similarly, the Trademarks Act covers and protects the mark, style or presentation of goods under trademark which distinguishes one trader or the service provider from the other trader or the service provider.

The copyright consist of right to print, publish and multiply copies of any original, literary, artistic, dramatic or musical work under the authority from the author, performer or the producer.

There has been controversy over the nature of the copyright as to whether it is a natural right, a civil right or a statutory right and also whether it is covered under property law or the law of torts. The consensus is that it is a statutory and an exclusive right conferred by the Act on the copyright owner. It has the power to refrain others from exercising any such right or doing of any such act to publish, perform or multiply the product of art without authority.

As of natural law the producer of anything has never been denied the right to its ownership even when no statute existed, but with passage of time, the means of production and communication ever changing and expanding the owner, the author, the performer had to be protected by law. There is however, an opposite view that the creation of an artist or a performer leaves effect on so many persons because of his intellect. According to this view it is to be treated as an addition to the common stock of knowledge for the benefit of the whole mankind without giving any benefit to the creator. As against it, the statutes protecting intellectual property rights have been considered as a balancing act to provide some return to the author, the creator, the performer in the shape of the benefits. That is why the laws have fixed a term for deriving benefits under the statute. The term varies form country to country. In India it was 20 years which has been increased to 50 years after which the copyright ceases to exist.

In Canada the term of a copyright is the lifetime of the author, the artist or the performer and the remainder of the calendar year in which he dies plus a period of 50 years after he dies ending with the calendar year. In the case of a work of which an author is unknown the term starts from the date of first publication of the work and 50 years following that date ending with the calendar year, or remainder of the earlier calendar year in which the work was made and 75 years thereafter. Where the identity of the author, artist or performer, in the meanwhile becomes publically known, the conditions applicable to a living author apply. Almost similar are the terms of copyright incase of anonymous and pseudonymous works of joint authorship. In cases of post humus works the term is also defined almost similar to anonymous works. These are subject to other transitional provisions.

Copyrights unlike patent rights do not grant absolute monopoly. Two identical works produced at the same time but independent of each other can be published by different publishers at the same time. Otherwise than this and for all other purposes it is a monopoly right subject to conditions imposed by the owner or the statute.

Besides the term, the author has got certain moral rights over his works such as a right to integrity with the work or to be associated with it or remain anonymous if he so wishes. The author has the right to have the essence of the work and the personality of the characters protected even if he sells his copyrights. A producer of a film in India having purchased absolute copyrights and having paid the entire consideration to make a film based on the novel “App ka Bunty” written by Mannu Bhandari, when the film was shown to the author she objected to the essence of the novel having been changed and the character of Bunti mutilated. The Delhi High Court restrained the film maker.

The scope of the act is being widened with the change of time and global conditions. The international conventions, the bilateral or multilateral treaties are redefining the terms and conditions.

Canada has amended its copyright laws as to the person who will be protected under the Copy right Act. Earlier the copyrights where accorded on the basis of residency and place of publication. Now nationality is also one of the factors. The author has to be a citizen or a subject of or a person ordinarily resident in, a treaty country. There are other conditions applying to corporations claiming copyrights as to there having headquarters in treaty countries.

With passing of the Free Trade Act with U.S.A. certain terms have been redefined and their scope widened. Industrial designs are covered under the design protection act, but the drawings of the industrial design are protected under the copyright act.

The main thing that upsets in the global aspect is that the intellectual property laws are not uniform whereas the affect is global and uniform. It seriously requires uniformity. The infringement of copyrights attracts penal as well as civil action, with country to country variations. The offender has to suffer penal action under the criminal law and has also to pay compensation. He is bound to render accounts to the owner for his unauthorized actions.

The Act day by day is drawing attention of the legislators as its need is being felt with greater intensity because of the value of the intellectual property being more than the value of any other property. Its effect involves greater number of people worldwide and leaves greater impact besides huge benefits to the author. The uniformity in laws is the urgent need of the day.

[Joginder Singh Toor is a senior advocate based in Chandigarh 91-9815133530. jogindersingh_toor@yahoo.com]

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