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Copyright and its Owner
The following is an edited extract on Copyright from a
presentation on intellectual Property’ made at the Couva/Point Lisas
Chamber of Commerce.
THINK for a few minutes about your favourite song, book
or movie. Most probably, you know the name of the singer, the author or
the producer. But did you know that each of those individuals, the
singer, the author and the producer, has proprietary rights, that is,
rights of ownership in the work, which rights lie in the realm of
copyright
Copyright is the intellectual property right that
subsists in original literary, artistic, musical and dramatic works.
Various types of works are protected by copyright. These works include
books, writings, speeches, articles, newspapers, audiovisual works,
architectural works, choreographic works, works of mas, paintings,
photographs, sculptures, paintings, translations and databases. Related
rights are the proprietary rights that subsist in performances, sound
recordings and broadcasts.
Copyright is a form of intangible property. The right of
ownership to the tangible medium, for example, a CD, book or DVD does
not vest the user of the tangible medium with copyright According to the
German philosopher Immanuel Kant -
“The author and the owner of the copy may both say about
it with the same right: it is my book, but in a different sense. The
first regards the book as writing or speech; the second only as the mute
instrument that delivers the speech to him or the public, i.e. as a
copy. The right of the author is however no right to the thing, namely
the copy (since the owner may burn it before the author’s eyes), but an
innate right in his own person, that is, to prevent another from
delivering to the public without his consent...”
Copyright usually vests in the author or the creator of
the work. One of the exceptions to that rule is that copyright vests in
the employer if the work is created in the course of employment.
The copyright owner has exclusive economic and moral
rights in his work. Economic rights allow the copyright owner to control
the reproduction, distribution, public performance, communication to the
public and other uses of the work by any entity. In this regard, subject
to certain exceptions, if a third party wishes to exercise any of the
copyright owner’s economic rights, the copyright owner’s permission must
be obtained. Moral rights include the right to be named as the author of
the work, to object to any derogatory treatment of the work, to use a
pseudonym or remain anonymous.
The copyright owner’s permission is not required when the
use is for research or private study; educational purposes; use in
libraries and archives; quotation and news reporting. However, even in
those circumstances only a short part of the work may be reproduced and
in many cases, the source of the work and name of the author must be
identified.
In Trinidad and Tobago, copyright protection is
automatic. It arises as soon as an original work is created. Invariably,
most entities include a notice on their work such as “A© XYZ Limited,
2005. All rights reserved”. However, there is no legal duty for the
inclusion of such a notice.
Many industries use and create copyrighted works on a
daily basis. These include the advertising sector; entertainment and
music industry; motion picture and video industry; press and literature;
radio and television; photography; software industry; visual and graphic
arts.
Prior to using the copyrighted works of other parties,
entities should consider whether the consent of the copyright owner is
required for the proposed use. If you are in doubt as to whether or not
permission is required, out of an abundance of caution, you should seek
permission or refrain from using the material until you have clarified
whether or not permission is required. If the consent of the copyright
owner is necessary, the first step would be to identify the copyright
owner. For example, in the case of musical works, contact the relevant
collective management societies e.g. COTT or TTCO that deal with musical
works or in the case of literary works, the publisher. When the rights
owner is identified, a licence must be obtained prior to using the work.
Where a work is commissioned, for example, a photographer
is hired to take photographs or a videographer to tape an event,
copyright belongs to the creator of the work, specifically, the
photographer or videographer unless there is an agreement to the
contrary. Hence, an assignment of copyright should be negotiated with
the creator of the work and a written agreement formalized in that
regard, prior to the execution of the particular task, if you wish to
exercise any rights for which the copyright owner’s permission is
required. Once an assignment is obtained in your favour, you would then
be able to exercise all economic rights such as the reproduction of the
work. Additionally, a written waiver of moral rights may be obtained
from the creator of the work.
Common acts of copyright infringement include the sale of
pirated works; photocopying published information for sale or
distribution; plagiarism; the hosting of a public party at a venue where
there is no licence from the relevant collective management society. The
criminal sanctions for copyright infringement are a fine of $100,000.00
and imprisonment for 10 years or twice that penalty, where the person is
convicted of an act of infringement within 5 years of a previous
conviction.
Copyright and its related rights are essential for human
creativity by giving creators incentives in the form of recognition and
fair economic rewards. Creators of copyright works must be duly
compensated so that they will continue to produce works that facilitate
our interactions and make life more enjoyable. Buy or use an authentic
product, not a pirated version.
The above Article is reproduced
from Trinidad & Tobago Express Newspaper Wednesday, July 26th 2005 with
the permission of Tene A. Reece, Attorney at Law, Intellectual Property
Office, Trinidad & Tobago
For more information on Copyright
Issues e-Mail Ms.
Tene A. Reece: tene@wow.net
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