COPYRIGHT REGISTRATION IN INDIA

WHAT IS MEANING OF COPYRIGHT?

Copyright according to Section 14 of Copyright Act, 1957 is basically a exclusive right as to do or authorize the doing of any acts as specified follows;

(a) in the case of a literary, dramatic or musical work, not being a computer programme,—

(i) to reproduce the work in any material form including the storing of it in any medium by   electronic means;

(ii) to issue copies of the work to the public not being copies already in circulation;

(iii) to perform the work in public, or communicate it to the public;

(iv) to make any cinematograph film or sound recording in respect of the work;

(v) to make any translation of the work;

(vi) to make any adaptation of the work;

(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);

(b) in the case of a computer programme,—

(i) to do any of the acts specified in clause (a);

(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme:

Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]

(c) in the case of an artistic work,—

(i) to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

(ii) to communicate the work to the public;

(iii) to issue copies of the work to the public not being copies already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make any adaptation of the work;

(vi) to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

(d) in the case of a cinematograph film,—

(i) to make a copy of the film including a photograph of any image forming part thereof;

(ii) to sell or give on hire or offer for sale or hire, any copy of the film, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the film to the public;

(e) in the case of a sound recording,—

(i) to make any other sound recording embodying it;

(ii) to sell or give on hire, or offer for sale or hire, any copy of the sound recording, regardless of whether such copy has been sold or given on hire on earlier occasions;

(iii) to communicate the sound recording to the public.

Thus from lay man's view, a copyright essentially refers to either utilize the work for the benefit of the author himself either by way of re-producing, copying, dubbing in sound form, converting it in video form or installing or issuing to public or adoption of the same in any other audio or video or any other form. 

Copyright is very important category of Intellectual property and hence protection of the same is very important in order to secure the right of the author i.e. the person who creates the work. Copyright can subsist on any kind of intellectual work i.e. book, musical work, choreography, artistic work, painting, artbook, song, story, Computer programs, software etc. thus Copyright is nothing but bundle of rights. 

IS COPYRIGHT REGISTRATION MANDATORY? 

Copyright registration is absolutely not necessary. A author get the Copyright over a subject material as soon as the work comes into existence. There is no need of formality of copyright in order to create your claim w.r.t. that work. 

IF NO, THEN WHY REGISTRATION ?

When we register the work and get Certificate of Registration for the work under copyright, it is a conclusive proof of Copyright in the name of author and plays a very vital role in court if needed. Otherwise the author will have to fight hard just to prove, that the work belongs to him. Certificate of registration and entries made by the registrar in their record is a very strong and prima facie evidence in the hands of author to prove his title, whenever the dispute arises about the ownership. 

Thus, even though though the Copyright registration is not mandatory, we must recommend registration of the same for the sake of protection of the author or developer of the work. 

WHO IS OWNER OF THE COPYRIGHT?

According to section 17, a author of the work is the first owner of the work, however the rule has got some exceptions. Accordingly, work done on behalf of employer, as intern or apprentice of newspaper, for government or for or on behalf of any third person etc. In all such events the author is not the owner of the work. 

If you are working on behalf of a Employer, then you are not owner of the work, but your employer is the owner of the work. 

Similarly, if any work is developed by you on behalf of government, then government is the owner of that work. 

WHAT IS DURATION OF COPYRIGHT?

The protection under Copyright Act differs from type of work and author, accordingly following is the term of different copyrights;

1. In Case of literary, Dramatic, Musical or artistic work - Sixty years from the beginning of the calender year next following the year in which author dies.  
2. In case of anonymous or pseudonymous work - Sixty years from the beginning of the calender year next following the year in which work is first published 
3. In case of posthumous work - Sixty years from the beginning of the calender year next following the year in which work is first published or in case if any adaption of such work is published earlier, then beginning of following calender year followed by year of publication.
4. In case of photograph - Sixty years from the beginning of the calender year next following the year in which photograph is first published
5. In case of cinematographic films - Sixty years from the beginning of the calender year next following the year in which film is first published 
6. In case of sound recording - Sixty years from the beginning of the calender year next following the year in which sound recording is first published    
7. Inc case of government work - Sixty years from the beginning of the calender year next following the year in which work is first published    
8. Term of Copyright for International Organisations - Sixty years from the beginning of the calender year next following the year in which work is first published. 

Thus duration differs from type of author and work. Accordingly protection is secured for author. There is no renewal of Copyright. 

WHAT IS PROCEDURE FOR REGISTRATION?

This work flow is a master pies available of government portal which elaborates in detail the process for registration of a Copyright. This is precisely the procedure followed for registration of Copyright in India. 

Even though according to the the time schedule above, the process should complete by 2-3 months, in reality it take little more than a year or sometime 2 years. 

Philosophy and need behind Copyright

Society when developing, many people with amazing intellect are contributing for it's growth. These people in turn needs to be protected and cherished, because unless they are not protected, they will be afraid to come up and show their knowledge or findings or ideas. 

Everyone should be rewarded for his intellect. And at the same time everyone else should be prohibited from misusing or infringing the right of the Copyright owner, as unless this minimum protection is ensured, there will be no incentive for the authors to toil hard and produce wonderful and valuable works. 

Hence Copyright act is there. Its main objective is to protect the work and prevent the infringement against bonafide authors.   

NOTE: Image of work flow is from website for copyright of government of India. 

    

CLASSES FOR REGISTRATION OF TRADEMARK IN INDIA

In India trademark is registered in 45 classes according to Fourth Schedule to the Trade Mark Rule, 2002. The Classification is mainly based on two broad categories i.e. Manufacturer and Service Provider. First 34 Classes i.e. 1 - 34 are for Manufacturer whereas Class No. 35 - 45 are for various services. 

Following are the Classes as per Trade Mark Rules. 

         FOR MANUFACTURER

1. Chemical used in industry, science, photography, agriculture, horticulture and forestry; unprocessed artificial resins, unprocessed plastic; manure; fire extinguishing compositions; tempering and soldering preparations; chemical substances for preserving foodstuff; tanning substances; adhesive used in Industry.

2. Paints, varnishes, lacquers; preservatives against rust and against deterioration of wood; colourants  mordants  raw natural resins; metals in foil and powder form for painters; decorators; printers and artists

3. Bleaching preparations and other substances for laundry use; cleaning; polishing; scouring and abrasive preparations; soaps; perfumery, essential oils, cosmetics, hair lotions, dentifrices.

4. Industrial oils and greases; lubricants; dust absorbing, wetting and binding compositions; fuels(including motor spirit) and illuminant; candles, wicks.

5. Pharmaceutical, veterinary and sanitary preparations; dietetic substances adapted for medical use, food for babies; plasters, materials for dressings; materials for stopping teeth, dental wax; disinfectants; preparation for destroying vermin; fungicides, herbicides.

6. Common metals and their alloys; metal building material; transportable buildings of  metal for railway tracks; non electric cables and wires of common metal; ironmongery, small items of metal hardware; pipes and tubes of metal; safes; goods of common metal but not included in other classes; ores

7. Machines and machine tools; motors and engines (except for land vehicles); machine coupling and transmission components (except for land vehicles); agricultural implements other than hand-operated; incubators for eggs

8.  Hand tools and implements (hand-operated); cutlery; side arms; razors.

9. Scientific, nautical, surveying, electric, photographic, cinematographic, optical, weighing, measuring, signalling, checking (supervision), life saving and teaching apparatus and instruments; apparatus for recording, transmission or reproduction of sound or images; magnetic data carriers, recording discs; automatic vending machines and mechanisms for coin-operated apparatus; cash registers, calculating machines, data processing equipment and computers; fire extinguishing apparatus.

10. Surgical, medical, dental and veterinary apparatus and instruments,  artificial limbs, eyes and teeth; orthopaedic articles; suture materials.

11.Apparatus for lighting, heating, steam generating, cooking, refrigerating, drying ventilating, water supply and sanitary purposes.

12. Vehicles; apparatus for locomotion by land, air or water.

13. Firearms; ammunition and projectiles; explosives; fire works

14.Precious metals and their alloys and goods in precious metals or coated therewith, not included in other classes; jewellery, precious stones; horological and other chronometric instruments.

15. Musical instruments.

16. Paper, cardboard and goods made from these materials, not included in other classes; printed matter; bookbinding material; photographs; stationery; adhesives for stationery or household purposes; artists' materials; paint brushes; typewriters and office requisites (except furniture); instructional and teaching material (except apparatus); plastic materials for packaging (not included in other classes); playing cards; printers' type; printing blocks

17.  Rubber, gutta percha, gum, asbestos, mica and goods made from these materials and not included in other classes; plastics in extruded form for use in manufacture; packing, stopping and insulating materials; flexible pipes, not of metal.

18. Leather and imitations of leather, and goods made of these materials and not included in other classes; animal skins, hides, trunks and travelling bags; umbrellas, parasols and walking sticks; whips, harness and saddler.

19. Building materials, (non-metallic), non-metallic rigid pipes for building; asphalt, pitch and bitumen; non-metallic transportable buildings; monuments, not of metal.

20. Furniture, mirrors, picture frames; goods(not included in other classes) of wood, cork, reed, cane, wicker, horn, bone, ivory, whalebone, shell, amber, mother- of-pearl, meerschaum and substitutes for all these materials, or of plastics.

21. Household or kitchen utensils and containers(not of precious metal or coated therewith); combs and sponges; brushes(except paints brushes); brush making materials; articles for cleaning purposes; steel wool  non worked or semi-worked glass (except glass used in building); glassware, porcelain and earthenware not included in other classes.

22. Ropes, string, nets, tents, awnings, tarpaulins, sails, sacks and bags (not included in other classes) padding and stuffing materials(except of rubber or plastics); raw fibrous textile materials

23. Yarns and threads, for textile use

24. Textiles and textile goods, not included in other classes; bed and table covers.

25.  Clothing, footwear, headgear.

26. Lace and embroidery, ribbons and braid; buttons, hooks and eyes, pins and needles; artificial flowers

27. Carpets, rugs, mats and matting, linoleum and other materials for covering existing floors; wall hangings (non-textile).

28. Games and playthings, gymnastic and sporting articles not included in other classes; decorations for Christmas trees

29. Meat, fish, poultry and game; meat extracts; preserved, dried and cooked fruits and vegetables; jellies, jams, fruit sauces; eggs, milk and milk products; edible oils and fats.

30. Coffee, tea, cocoa, sugar, rice, tapioca, sago, artificial coffee; flour and preparations made from cereals, bread, pastry and confectionery, ices; honey, treacle; yeast, baking powder; salt, mustard; vinegar, sauces, (condiments); spices; ice

31. Agricultural, horticultural and forestry products and grains not included in other classes; live animals; fresh fruits and vegetables; seeds, natural plants and flowers; foodstuffs for animals, malt.

32. Beers, mineral and aerated waters, and other non-alcoholic drinks; fruit  drinks and fruit juices; syrups and other preparations for making beverages

33. Alcoholic beverages(except beers)

34. Tobacco, smokers' articles, matches

FOR SERVICE PROVIDERS 

35. Advertising, business management, business administration, office functions.

36. Insurance, financial affairs; monetary affairs; real estate affairs.

37. Building construction; repair; installation services.

38. Telecommunications.

39. Transport; packaging and storage of goods; travel arrangement.

40. Treatment of materials.

41. Education; providing of training; entertainment; sporting and cultural activities.

42. Scientific and technological services and research and design relating thereto; industrial analysis and research services; design and development of computer hardware and software.

43. Services for providing food and drink; temporary accommodation.

44. Medical services, veterinary services, hygienic and beauty care for human beings or animals; agriculture, horticulture and forestry services.

45. Legal services; security services for the protection of property and individuals; personal and social services rendered by others to meet the needs of individuals.  

At the time of filing we have to select the class under which our product or service falls. The Fees is charged on the basis of per class, hence in case of multiple classes we need to pay that much fees.

Parts of an article or appartus are, in general classified with the actual article or appartus, except wheresuch parts constitute articles included in other classes

In case of Confusion, reference can be made to the Registrar of Trademarks. Applicant can prepare the trademark application with the class detail confirmed by the Registrar.

TRADE MARK REGISTRATION IN INDIA

Trade Mark is the mark capable of distinguishing the goods manufactured by  one manufacturer or service provider from that of others. We need to have protection over our Trade Mark as it represents our organization to the world. We today are very brand conscious and trade mark is certainly very precious and significant if we wish to create brand. 

Benefits of Registration of Trademark

1. Trademark provides nationwide protection to the businessman. 
2. It ensures that the name of Business entity remains protected as others can not use it for their business. Registered Trademark acts as a constructive notice to all other persons that they shall be refrained from using the trademark as their own. 
3. Once trademark is registered it prevents likelihood that any other party claims as its their trademark.
4. Once the trademark is registered, it is visible on trademark portal @ www.ipindia.nic.in and also easily searched on the same by agents or attorney, so that they shall not proceed with the registration of same or similar trademark. 
5. Registered trademark holder can sue any other person for infringement, if that person uses the trademark without consent of owner for his benefit.  
6. Trademark is significant from the point of view of the layman as, it is very important that brands remain protected or else anyone will come up in the market and start his own product in the name of reputed brand and confuse the consumer.
7. It also plays vital role as to protect creditworthiness of the brand created by a businessman by prolonged quality. If the protection is not there any person with substandard goods may hamper the good credentials of businessman. 

Section 27 of The Trademarks Act, 1999

No Action for infringement of unregistered trademark.  

1. No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark.
2. Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof.

Interpretation to section 27 of Trademarks Act, 1999 

Accordingly any person whose logo or mark is not registered, is not entitled to bring suit against any other person for infringement of his mark nor he can ask for any compensation for that same. However it recognizes the common law rights of the trade mark owner to take action against any person for passing off goods as the goods of another person or as services provided by another person or the remedies thereof.

Procedure for Registration of Trademark.

Following are the steps for registration of Trademark in India. 

1. Soft Search: It is very important to take soft search of the logo or mark proposed to be registered. Previously Trademark authorities provided the facility for physical search by them on payment of Rs. 500/-, however after updation of Trademark portal, physical search facility is no longer available and applicant must make a soft search w.r.t. trademark proposed to be registered. 
2. Preparation of Application: After search completed and on being satisfied that prima facie same or similar mark is not registered under same class, applicant can process ahead for registration. 
3. The application has to be made in prescribed form. The forms should be filled up as per the formats provided under Trademark Rules and forms. 
4. Along with application, fees has to be paid as prescribed by Trade mark authorities.  Currently its Rs. 3500/-
5. After making application to the trademark authorities, scrutiny is done by registering authorities. If any incomplete information is given, same is notified to the applicant. 
6. After acceptance of application we get the application number for future reference. 
7. After that the Trademark is published in trademark journal.
8. If at the time of publication of trademark in journal, no objection is received then trademark shall be processed and registered. 
9. If any opposition is received on the trademark so published, then Registrar issues applicant notice of opposition. 
10. On receipt of this opposition letter, applicant needs to file his reply for the same. If necessary Registrar issues order for hearing on the same. 
11. After hearing the Registrar shall give his decision.
12. If case is decided in favor of applicant, the Registrar shall issue Certificate of registration otherwise application for registration shall be rejected.   

Effect of Registration of Trademark

Once the trademark is registered the owner of the same gets absolute right w.r.t that trademark and no other person is allowed to copy or otherwise make use of same or similar trademark. The owner shall get the right to sue any person for infringement of the same or receive the compensation from the person infringing the trademark.    

INDEPENDENT DIRECTOR - An Overview

INDEPENDENT DIRECTOR

Independent Director is that Non-Executive Director of the Company who does not have any material or pecuniary transaction with the Company, Directors, Promoters, senior managers, holding or subsidiary Company or associates apart from receiving managerial remuneration.

Independent Director under Clause 49 of Listing Agreement.

As per new circular, ‘independent director’ means non-executive director who :

1. Apart from receiving director’s remuneration, does not have any material pecuniary relationships or transactions with the company, its promoters, its directors, its senior management or its holding company, its subsidiaries and associates which may affect independence of the director. 
2. Is not related to promoters or persons occupying management positions at the board level or at one level below the board
3. Has not been an executive of the company in the immediately preceding three financial years
4. Is not a substantial shareholder of the company i.e. owning two percent or more of the block of voting shares.
5. Is not a material supplier, service provider or customer or a lessor or lessee of the Company, which may affect independence of the Director.
   
6. Is not a partner or an executive or was not partner or an executive during the preceding three years, of any of the following :

      (i) The statutory audit firm or the internal audit firm that is associated  

          with the company, and 

        

       (ii) The legal firm(s) and consulting firm(s) that have a material                

          association with the company

Appointment of Independent Director

• The Board of directors of the company shall have an optimum combination of executive and non-executive directors with not less than fifty percent of the board of directors comprising of non-executive directors.

• Where the Chairman of the Board is a non-executive director, at least one-third of the Board should comprise of independent directors and in case he is an executive director, at least half of the Board should comprise of independent directors.

Provided that where the non-executive Chairman is a promoter of the company or is related to any promoter or person occupying management positions at the Board level or at one level below the Board, at least one-half of the Board of the company shall consist of independent directors.

Role of Independent Directors

Independent Director plays a very vital role in the Company. He is placed with fiduciary duty of maintaining standard level of corporate governance in the Company and prevents non compliance. He is watchdog of the Company and works in risk management, corporate governance, improving credibility etc.

In case of listed Companies, it is mandatory to set up Audit Committee which should comprise of two third Independent Directors.        

Important functions of Independent Director:

Following are some of very important functions of Independent Directors in the Company. 

1. Consideration and review of annual financial statements of the Company before it is placed before the Board for its finalization. Review of changes in application of accounting policies, major changes impacting Company’s position etc.  
2. Assisting the Board by recommendation in matters of appointment, reappointment and in some cases removal of statutory Auditor of the Company.
3. Consideration of financial reporting process. 
4. Consideration of quarterly financial statements. 
5. Consideration of Internal Audit process and make recommendations for improving the same. 
6. Place before the Board findings about the fraud, material non-disclosures etc, came to the knowledge of Independent Director. 
7. Consideration and analysis of reasons for the same. 
8. Special Review relating to related party transactions, transactions between subsidiary-holding company transactions and investments made between them, internal control procedure weakness etc.
9. At all the times he should act in good faith and impartially.

Conclusion:

In order to sum up we can say, Independent Directors are expected to play role of a torchlight for development and maintenance of Corporate Governance in a Company. For listed Company, he is statutorily a very important person. He is expected to act as scrutinizer, who will ensure adequate measurements placed for proper disclosures in financial reporting of the Company and maintenance of high standards of internal auditing.