Booknomics

Publishing, Print on Demand, Self-publishing in India from Pothi.com Team

Copyright O’ Copyright! (Part I)

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I consider myself fairly good with spotting patterns and categorizing things. But the number of angles from which people can get confused about the copyrights confounds me. In general, it is not possible to give a quick, short, satisfying answer to copyright related queries. Because this is after all a legal issue and “if”s and “but”s are endless before you can make any statement.

So, if you have a query about copyright, I request you to read this blog post (and others to come on this) first, even if it is slightly longish and even if it does not come to the point you have in mind immediately. Because most likely, your point has to come through several “if”s and “but”s!

Since we are touching on a legal topic – a big and important disclaimer. This article is not written by a qualified legal expert. This is just our understanding of the copyright issues and should not be taken as a legal advice. If copyright questions are really worrying you, you should consult an Intellectual Property lawyer. Also, all the circumstances, examples, cases used in the article are completely hypothetical – and work of imagination. They may or may not stand a proper legal scrutiny. They are mentioned just to illustrate the idea and are not supposed to be actual legal cases.

So now, on to the real stuff.

A big nuance of law in general

Before we start on the copyright relates issues, there is something about law in general that we need to understand. There are always two aspects of law. One aspect talks about what should happen. The other governs, how do you go about enforcing that law. For simplicity let’s call them the theoretical and practical aspects of the law.And “theoretical” and “practical” should not be taken in the sense that “theoretical” is just that – the theory and “practical” is the main thing. No! Its just a nomenclature and does not carry any such loaded meaning.

  • Theoretical aspect will talk about what should happen. If X has murdered Y under ABC circumstances, then X should be punished with a life imprisonment. That’s what the theoretical law says.
  • Practical aspect is concerned with ascertaining what actually happened and which part of theoretical law is applicable. Did Y get murdered or did Y commit suicide? If it was indeed a murder, was it X who did it. If so, was X provoked in any way or did X do it for self defense and so on… How will these things be ascertained? Based on evidences. So, the law will say that a postmortem report from a government hospital can be an evidence to ascertain what was the cause of death and whether it is more likely to be a murder or a suicide. The law can say that the weapon of death being found in X’s house is not an evidence enough for claiming that X is the murderer and so on.

So, given the practical aspects of the law, whether or not the theoretical aspect gets observed in the end can never be predicted in advance. If in reality X was murdered under ABC circumstances, then he should have gotten life imprisonment. But with all the evidences and other nittigritties related to ascertaining the situation, it is a possibility that X gets away free because the circumstances could not be ascertained definitely. There is also a chance that X was not really guilty, but evidences got framed up in a way that he was punished.

Depressing as it may sound, it is a reality. The law is after all a human system and can not be fool-proof. (However, to practically compensate for that, most modern laws – specially criminal laws – follow the principle of letting the accused go if there is even the slightest doubt about the crime. Let go of a thousand guilty people to save even one innocent person).

The outcome of civil and business related legal conflicts are usually less fatal to individuals (we are normally not talking about murders and violence here). But the theoretical and practical aspects of the law are still there. So, the theoretical law may say that if company X has violated the patent of company Y, then they should compensate for the losses incurred and immediately pull their product out from the market. But the practical law has to go through the exercise of ascertaining a bunch of things here. Did Y have that patent? Has the patent really been violated? If so, how do we calculate the losses incurred (different parties would definitely have different calculations!)? What would pulling the product out mean? Can company X provide support to their existing customers and charge for it? Or would the customer also have to suffer? And so on…

Apart from unpredictability caused by the practical aspect of the law, there might be issues in the theoretical aspect of the law too. There may be laws that contradict with each other (legal systems are vast, complicated human systems, after all). Law may be vague about certain definitions. Certain concepts may just elude strict definitions and law has to depend on its interpreter to take a call on those. So, unpredictability reins all through!

The same nuance for copyright law

Similar situation exists for the copyright law as well. Law says certain things about what is copyright, in what circumstances is it violated, what is the punishment for violating the copyright and so on.

But if there is a practical conflict, the outcome can not predicted because the process of ascertaining the claims is not predictable. Just like in the murder case example taken earlier, someone might actually have violated the copyright and may still get away with it because the court could not ascertain whether or not the copyright belonged to the other person in the first place!

We should look at the remaining discussion, keeping the above in mind.

But let’s not be overly pessimistic. While the outcome is not quite predictable in case of an actual conflict, it does not mean that totally arbitrary things can happen to us. If we understand the important aspects of the law correctly, and follow some good practices, we should be fairly safe on copyright grounds.

The theoretical part of the copyright law

  • Copyright in actually a bundle of rights given to the creator of creative work – normally the works of literature, art, drama, music etc. The bundle of rights include things like right of reproduction, right of adaptation, right of translation etc. Given Pothi.com’s business, we will restrict our discussions to the copyright of literary works (computer code is also treated as literary work for the purpose of copyright, but we’d not include that in our discussions).
  • The copyright law grants certain protection to the owner of copyright. Typically for literary work, it means that all the rights from the bundle can not be exercised by anyone other than the copyright owner, unless there is an explicit permission or a right transfer has happened.
  • There is a provision for registering the copyright. However, it is not necessary to register the copyright to claim protection under it. Copyright and protection under copyright law comes into existence as soon as the work is penned down. Registration is optional. Registration serves as prima facie evidence, if there is a dispute in court. This means that it can be basis to file the case, but it does not mean conclusively that the case will be decided in favour of the person having registration. The other party can present other proofs, which can put the case in their favour.
  • In Indian copyright law, the copyright protection for literary work is available for up to 60-year period counted from the year following the death of the author. If the publication is done anonymously or with a pseudonym, the protection is available for 60 years from the date of publication.
  • Copyright mostly works like any other property you own. You can assign a copyright to someone else in a lifetime, you can assign it to someone starting from a future date (like after your death). If there is no explicit assignment, then like any other property, the copyright passes on to your legal heir after your death.
  • You can assign individual rights from the bundle of rights copyright law protects to other people/organizations while keeping the remaining with you. So for an English work of yours, you can give Spanish translation rights to one company, Hindi translation rights to a relative of yours and movie adaptation rights to a bollywood producer. The remaining rights will still remain with you. None of these assignments will entitle them to print and sell the copies of your original work.

Practical Parts to remember

  • Recall the theoretical and practical aspects of the law and apply it here. The law grants the protection, but that does not mean that someone who wants to, will not be able to violate your copyright. They may violate it and you have to keep track of them and take the legal recourse, if they don’t agree to stop the violation. Once the case starts, you will have to go through the process of proving that the copyright was yours and it was violated. You will have to produce evidence to this effect and so on. The outcome is not completely predictable.
  • The law does not say that any government body will actively monitor copyright violation irrespective of whether or not you have registered the copyright. That is something you will have to do on your own. There is no copyright police anywhere to actively monitor and stop illegal copyright violations!

In the next blog post on copyrights, we’d get into some of the practical things a self publishing author should look for while dealing with copyright issues.

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