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FAQ’s and Guidelines forming part of the Intellectual Property Policy.
Copyrighting and Protecting Your Work
The information contained on this page constitutes information or indicative guidelines and not legal or professional advice. The user assumes all responsibility for any and all use of this information. Please consult a qualified lawyer for specific questions. This page may or may not be updated periodically to reflect changing laws and industry practices.
This page contains information to answer common questions Makers/Designers may have about copyright and intellectual property.
What is intellectual property?
Intellectual property is an umbrella term referring to commercially valuable creations of the mind or intellect. These creations include inventions, artwork, symbols, names, and designs. Intellectual property protection options include copyrights, trademarks, and patents or trade dress. The appropriate protection option depends on the work itself. Eg. a copyright may protect creative expression such as a painting, a book, or a jewelry design. A trademark may protect a word, logo, symbol, or design that identifies the creator of a product. A patent may protect new technological innovations.
What is a copyright?
In India the Copyright Act, 1957 (as amended by the Copyright Amendment Act 2012) governs the subject of copyright. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957 to accommodate the growing needs of the trade and services.
India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). But India is not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
Internationally, copyright is a form of protection given within a legal framework for original works of authorship fixed in a tangible medium of expression. Copyright protects, for example, literary, dramatic, musical, and artistic works, such as paintings, sculptures, poetry, novels, movies, songs, computer software, and architecture. Copyright covers both published and unpublished works. With exception, copyright protection exists from the moment of creation and lasts until 60 years after the death of the creator. This can be different lengths in different countries eg. 70 years in the United States.
How is a copyright different from a patent or a trademark?
Internationally, copyright protects “original works of authorship,” while a patent protects inventions or discoveries. Copyright protects creative expression, whether that expression is in the form of, for example, a painting, a book, or a sculpture. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.
For example, A copyright or trademark enables a consumer to relate a product or service to a business by its name, style, presentation or typography. This helps a customer what to expect in terms of quality, durability, or other parameters which in turns assists the buying the experience related with that. The logo on a Product packaging is probably a trademark while the artistic design on the box is probably a copyright. The product itself in terms of its technology or design may constitute a patent.
When I have a copyright, what rights do I have?
Generally, the owner of a copyright has the exclusive right to and to authorize others to:
What is a derivative work?
A derivative work is a copyrightable creation, which is based on one or more existing works. Only the holder of the copyright of the original can produce or give permission to another to create the next version. A derivative work usually involves a transformation. For example, a film based on a book is likely a derivative work.
What is not protected by copyright? Copyright protects expression. Copyright does not protect ideas. Copyright does not protect facts, systems, or methods of operation, although it may protect the way these things are expressed. Copyright does not protect titles, names, short phrases, slogans, familiar symbols or designs, mere variations of typographic ornamentation, lettering, coloring, or mere listings of ingredients or contents.
Copyright does not protect the mechanical or utilitarian aspects of a design. A “useful article” is an object having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. Examples are clothing, furniture, machinery, dinnerware, and lighting fixtures. A useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair might be protected by US copyright, but the design of the chair itself might not be protected by copyright. Some designs of useful articles may qualify for protection under the US federal patent law.
Finally, copyright usually does not protect works that are too old, and therefore have fallen into the public domain.
In India, copyright protection generally begins at date of creation and lasts for 60 years after the death of the author or from the date of first publication (in some cases). After this time, the work loses protection and falls into the public domain. Certain works that are expressly xcluded from the coverage of the Copyrights are also deemed to be in Public domain.
Even if a work is in the public domain, under private-property laws, the owner may still restrict access to the work. This kind of restrictions may apply to works of many Designers and artists. So it will always be wise to check with the owners or their estate, or their rights management office if in doubt of infringement.
What is protected by Copyright – The Idea or the expression of an Idea?
Pursuant to the idea/expression doctrine most copyright laws protects only the expression of the idea and not the idea itself. It may be difficult to draw the line between an idea and expression. It will be good to consult a copyrights Lawyer if at anytime that you are in doubt of where your use falls.
Is Registration mandatory?
No. In most countries, copyright protection automatically exists from the moment the work is created. However, it is suggested to register your work with the copyrights office. It is highly suggested to register your work within 2-3 months of publication (posting an image on the Internet may constitute publication).
Should I register my work if copyright protection is automatic?
If registration is made within 2-3 months of publication (posting an image on the Internet may constitute publication) and prior to an infringement of the work, it will be easier to claim damages and costs in case of a court action. Since Statutory damages are set by law and therefore are easier to prove than actual damages, where burden of proof is on the author, for example, lost profits, reputation etc. its best to be a situation where your rights are protected by statute. In other words, if you register for copyright before your work has been on the market for considerable time (2-3 months), and someone infringes, it may be easier to prove that you've been harmed.
If you register after the reasonable window, you will not necessarily be entitled to statutory damages or costs of the action. You will have a heavier burden of proof as you will have to show actual damages, which are difficult to prove.
Also, when you register for copyright you will receive a certificate of registration and registration creates a public record (so that anyone can look it up). In essence a registered mark is far more valuable in case of protection rather than a un-registered mark.
You might have created it, but you may not own the copyright.
If you prepare a work as within the scope of your employment (a work made for hire) your employer might be the “author” of the work for all commercial exploitation purposes. Also, if you prepare a custom commissioned work for certain uses and you expressly agree in a signed written instrument, the work may be considered a work made for hire. In these cases, your employer/Customer or the person who commissioned the work might be entitled to the copyright rights. The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.
How do I register for copyright protection?
Visit the site http://www.copyright.gov.in to know all the details of registration.
What is a copyright notice? Do I need to put one on my work?
A copyright notice is a placed on a work in order to inform others of copyright ownership. You may place a copyright notice on your work even if your work is not registered with the copyright law. A copyright notice generally consists of the symbol or word “copyright” or the symbol “©” and the name of the copyright owner, and the year of first publication, for example, © 2016 Direct Create. In most countries it is not necessary to mark your piece as being copyrighted, although it is suggested. Just because a work does not have a copyright marking or copyright notice does not necessarily mean it is in the public domain and free to use without obtaining prior permission of its author.
Am I liable if I sell counterfeit (knockoff) goods?
Direct Create prohibits the selling of counterfeit goods or services. Please do not sell them. A Maker/Designer/seller may be held liable for selling counterfeit products/Services if the seller knows or has reason to know that the products are counterfeit, liftoff, fake or unauthorized use of a third party Copyright or Patent. If the Maker or seller fails to inquire about the authenticity of his marks, or the designs he uses in his products or services, for fear of what such inquiry may yield, this will constitute knowledge. A reseller of counterfeit products may also be held liable for counterfeiting.
How do I allow someone to use my work?
The Copyright owner has the exclusive right to reproduce, distribute, perform, publicly display and make a derivative work. The copyright owner may enter into an agreement with another individual and grant this person one or more of these rights. It’s up to the two parties to agree upon the details, for example, what rights to grant, what timeline is appropriate, and what, if any, fees to charge.
When I sell an item, what happens to my copyright?
When you sell or give away a copyrighted item, unless you have a contract specifying a transfer of one or more of your copyright rights, you are only selling the physical item, not any of your rights. For example, generally when you sell a uniquely designed furniture, you are only selling the piece of furniture. The buyer is not entitled to the right to duplicate the furniture without your express permission.
However, pursuant to the first sale doctrine, the buyer of a lawfully made item may re-sell that item or otherwise dispose of the possession of that copy without the express permission of the copyright holder. For example, when an individual buys a Jewelry from a Maker, that person may re-sell that jewelry without getting any permission from the Maker.
What is fair use/fair deal?
In India the doctrine of fair deal (aka the fair use defense in many countries) is a way to defend an allegation of copyright infringement. In essence it’s like acknowledging that one infringed, but with a valid or fair explanation The fair deal/use defense rests on the presumption that an individual should be excused due to public policy reasons such as the copying benefits of society due to educational purposes or if the copying is considered commentary, criticism, news reporting or scholarly reports. If the copying is for commercial use (if an artist copies and sells the work), this defense may not be available. Many artists use the fair use defense as a loophole to copy. This is very unwise. Artistic uses are not explicitly protected by fair use. The fair use defense is complicated and difficult to prove.
Use of another’s work?
In some cases, courts will permit copying (getting inspired), if the amount copied is extremely small (called de minimis use). The theory is that this type of copying does not rise to the level to constitute infringement. A court may examine whether an average audience would recognize an appropriation as a qualitatively and quantitatively significant portion of the copyright holder’s work as a whole. Just like with fair use, there is no bright line test for determining a de minimis use.
When is a copyright infringed?
Generally, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Someone may infringe even without a commercial use or the infringer not making money.
What are the remedies for the copyright infringement?
It can be frustrating to discover a similar work of art or design to yours being sold on the market, without your permission. However, ideas are generally free to copy and the line between an idea (unprotectable via copyright) and expression (protectable via copyright) may be difficult to draw. Artists may be inspired by other artists, previous art, and the world around them. Also, most copyright protection laws does not preclude another author from creating independently authored, yet identical, works. Copyright does not protect everything. For example, copyright does not protect facts, processes or utilitarian aspects of a design.
If you see infringement of your copyrights or other intellectual property rights on Direct Create, you may contact the other person to try to work it out or talk to an Lawyer. You may also provide Direct Create with the information specified in Direct Create's Intellectual Property Policy. Direct Create cannot provide you with legal advice or legal representation. Please speak with a licensed attorney in your jurisdiction for legal advice.
If I receive a communication from Direct Create about intellectual property infringement, what should I do?
Direct Create takes intellectual property concerns very seriously. Allegations of infringement can have serious consequences for everyone involved. If you have questions or concerns about the infringement claim, we encourage you to directly contact the party that provided the notice to Direct Create (their contact information is included in the email that you received from Direct Create when we removed the material) or contact a Lawyer. We hope you can resolve any issues directly with the complaining party. As an online marketplace, Direct Create cannot provide you with insight or information about whether the issue is resolved. We will let you know when the complaining Party withdraws their complaint in which case you have a choice to restore your listing or follow any course of action that your resolution with the complainants allow.
Please remember, Direct Create is a Platform to hundreds of thousands of products and services and we cannot directly monitor, screen or evaluate any infringement. Infringing Material is removed based upon a proper notice in accordance with our Notice and Takedown policy. Our policy also states that we may revoke account privileges if we continue to receive notices of infringement about a particular shop, Maker, Designer or Organisation.
My Listings were removed but I think I have not infringed any IPR.
If Direct Create contacted you about intellectual property infringement, it simply means that we were notified about certain infringing material in your shop, listing or other data or content that you have provided on Direct Create. In accordance with our policy, we have to remove the material that was brought to our attention, until a resolution is reached between the Parties to the allegation and defense or you provide Direct Create with legally valid documentation of ownership or claim to the material objected (for eg. a Copyright/Trademark registration certificate/a Patent filing). Since our site operates Internationally This policy is based on general Indian and International intellectual property laws and widely accepted rules such as but not limited to DMCA. If you have questions or concerns about the infringement claim, we encourage you to directly contact the party that provided the notice to Direct Create (their contact information is included in the email we sent when we removed the material) or contact a Lawyer.
Can I repost the allegedly infringing material after making small amendments?
Direct Create s a venue or marketplace and we simply are not the right place for you to give you any professional advice or the acceptance about changing infringing material and re-posting it in your listing. Only a person authorized to speak and/or act on behalf of the intellectual property owner, or a lawyer, can decide whether certain changes are acceptable. For this type of information or advice, you might choose to directly contact the party that provided the notice to Direct Create. Direct Create hopes that you can resolve this with the appropriate party.
While there are various other similar Listings or content, why should my listing alone be removed for potential infringing claim?
What if Direct Create receives multiple copyright or intellectual property policy complaints about me over time?
If Direct Create receives multiple complaints of IP infringement in your account, we would analyze your account and its contents in the light of the complaints being received and our policy may be requiring us to suspend or terminate your account. We will give you an opportunity to present your side of the case and see if we can refer you to a professional who you can work with to resolve your complainant’s issues with your content.
Please don't purposely infringe. Even if you do not have substantial assets, you may be forced to cease publication, shut down your shop, or even be forced to destroy all copies of art that include copyright infringement by the law enforcement.
It’s a myth that the law allows you to change a certain percentage of someone else’s work for you to be able to claim a copyright in that work. This is a myth. Only the owner of the copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. Accordingly, without the owner’s consent you cannot claim copyright to another’s work, no matter how much you change it.
This information relates to the Indian law. However, in essence this applies to most countries as they are all signatories to Internally accepted copyright regulations under the WIPO, TRIPS and WTO and as a result of these agreements, the countries honors copyrights of many other foreign regimes.
I can’t find answers to my specific question?
As you're probably aware, the law is very complicated and may vary from situation to situation, place to place, and even judge to judge. These topics have been argued and theorized by legal researchers, attorneys, and judges for many years. And laws are always evolving. Sometimes a factor that may seem unimportant may be actually very important. As always, do your research, exercise good faith, treat others as you would want to be treated. If you need further assistance, talk to a licensed attorney. This page may be periodically updated to incorporate new issues that arise.
Where can I get more information?
For more information on copyright law visit www.copyright.gov.in For more information on patent and trademark law visit