To an artist, a copyright is a very important right to understand because every creative and economic decision undertaken with respect to their work depends on who owns the copyright.
Being unaware of a work’s copyright protection can lead to a host of problems, the worst of them ending in being slapped with an expensive copyright infringement suit. Alternatively, being unaware of your own work’s copyright can lead to you inadvertently giving up control over your work and its inherent economic and creative potential.
Even though copyright law is really important to artists, it is often difficult to find a simple explanation of how the law works. This is because the law relating to copyright is vast and often changing. To make things a little easier, here are some basics to remember about copyright.
This image has been taken from the flickr photostream of Horia Varlans and is protected under the Creative Commons Attribution 2.0 Generic License
What is a copyright?
A copyright is a type of property right that exists in any original work of a literary, musical, dramatic and artistic nature, sound recordings and cinematographic films. Being a copyright owner or holder, gives you certain further rights and these are the exclusive rights to:
- REPRODUCE the work in any format or the ability to make copies
- COMMUNICATE the work to the public by way of broadcasting
- ADAPT the work in order to use it or modify its contents
- TRANSLATE the work into a different format or language
These rights are well within your reach so long as you are the copyright owner, however if you do not own the copyright of a work, and you still want to use it, modify it, make copies of it, or translate it you need to get the permission of the actual owner of the work’s copyright. Prior permission from a copyright holder is important and can save a lot of your time, money and good will. Using copyrighted material without the copyright owner’s permission is called infringement (There are exceptions to this situation and this will be dealt with in a separate post on fair use or fair dealing). Sometimes copyright holders will be happy to let you use their work for certain purposes or for a limited time only, in exchange for a certain amount of money – this is called licensing.
Are all works eligible for copyright protection?
Copyright protection can be extended to nearly all kinds of work, so long as they are (1) original and (2) fixed in some kind of medium for a reasonable duration of time.
In the context of copyright law, originality does not mean novelty. In India the originality of a work would be determined using the skill and judgment test –one has to show that they exercised a degree of skill and judgment in the creative process. So, an original work need not be considered extremely creative, novel or out of the ordinary but at the same time, it must however involve the use of the author’s skill and judgment to an extent that can be considered greater than a mere mechanical application. Needless to say, determining this can be highly subjective and is usually left to be decided in a court of law.
Fixation essentially refers to the notion that the work has been expressed, and is not merely an idea (because ideas are not copyrightable!) Works can be fixed in a range of mediums – CDs, digital formats, canvases – the important thing to remember as an artist is that when you’re negotiating an agreement, make sure that you consider existing mediums and the ones that are still to be invented (or you may end up losing some of your rights in the future).
How do you get the copyright and how long do you keep it?
Unlike most other intellectual property rights, a work does not have to be registered in order have a copyright. In other words, a copyright inherently subsists in a work, the moment it has been created. Sometimes, through an agreement, the author will assign his or her copyright to a third party. Another way an author loses copyright protection of their work is on the expiration of the copyright term. Copyright protection on a work is only meant to last for a limited period of time. In India, the copyright on an original literary, dramatic, musical and artistic work last for the life of the author, and a period of 60 years following the author’s death. In the case of Cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, Government works and works of international organizations, the copyright last for a period of 60 years starting from the date of publication.
What happens after the copyright expires?
Once the copyright on a work expires, it goes into what is referred to as the Public Domain that essentially consists of works that no longer carry copyright restrictions on them, and thus can be used in any way without the need for prior permission from the work’s author.
So what should artists know?
Always remember that unless you have explicitly agreed to sign over your rights or unless you have been hired by someone to produce the work, YOU are the copyright owner and thus can exercise the rights that flow from it. Also remember that nothing is set in stone – all rights can be negotiated on. Ask for permission if you are using someone else’s copyrighted work and if someone has used your work without your permission, know that technically, they have violated your rights.
This is a very simplistic description of some basic questions of copyright law. To know more, be sure to stay tuned to this blog or if you have any specific question that can’t wait, feel free to leave me a comment or to contact me.