IP Policy Faq

IP Policy Faq

Introduction
IP Policy

FAQ’s and Guidelines forming part of the

Intellectual Property Policy

DirectCreate, ("DirectCreate", "our, "us" or "we")
Copyrighting and Protecting Your Work

Disclaimer: The following information merely represents indicative guidelines. The user assumes all responsibility for any and all use of this information. The page should not be used as a substitute for competent legal advice from a qualified lawyer. Please consult a qualified lawyer for any specific questions. This page may or may not be updated periodically to reflect changing laws and industry practices.

This page contains rudimentary information pertaining to common questions Crafters/Makers/Designers may have about Copyright and Intellectual Property.

What is Intellectual Property?

Intellectual Property is an umbrella term that refers to commercially valuable knowledge, creative ideas or expressions of the human mind. These creations include inventions; literary and artistic, artwork, symbols, names, images and designs. Intellectual Property protection options include Copyrights, Trademarks or trade dress, Patents or Registered Designs. The appropriate protection depends on the nature of the work itself. Example: A Copyright protects original works of authorship such as a painting, a book, or a jewelry design. A Trademark protects a brand name, word, logo, symbol, or design that identifies the creator of a product. A Patent protects innovations/inventions.

What is a Copyright?

A Copyright In India is governed as per the Copyright Act, 1957 (as amended by the Copyright Amendment Act 2012). The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957 to meet with the national and international requirements.

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 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 Copyright covers both published and unpublished works.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. The length of protection may vary in different.

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). The 2012 amendments make Indian Copyright Law complain with the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).

Since, India is a signatory to the Berne Convention, a Copyright registered within the Indian territory would be protected in 177 signatory countries out of 195 countries in the world.

How is a Copyright different from a Patent or a Trademark?

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.

What rights do I have as the owner of a Copyright?

The owner of a Copyright in an original work of authorship the following exclusive rights:

  1. The right to reproduce and make copies of the original work.
  2. The right to prepare derivative works based on the original work.
  3. The right to distribute copies to the public by sale or another form of transfer, such as lending or rental.
  4. The right to publicly perform and display the work.
What is a Derivative work?

A Derivative work is a Copyrightable creation, which includes aspects of one or more preexisting works. Only Copyright owners can produce or give permission to another to produce or create the new version. A Derivative work involves an alteration or conversion. For example, a film based on a book is likely a Derivative work.

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 certain features that can be Copyrighted and certain features that cannot. For example, a carving on the back of a chair can be protected by US copyright, but the design of the chair itself might not be protected by Copyright. Further, a Copyright does not protect works that have fallen into the Public Domain.

Public Domain?

When a work no longer has a rightful owner (of the Economic rights) a work is said to have entered the Public Domain. In India, Copyright protection lasts for a limited period of 60 years after from the date of publication by the author. In case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. Subsequently, the work loses protection and falls into the Public Domain.

There are four common ways the works enter the Public Domain:

  1. The Copyright has expired.
  2. The Copyright owner failed to follow Copyright renewal laws.
  3. The Copyright owner deliberately places in in the Public Domain, known as “dedication”.
  4. The Copyright law expressly excludes the type of work from Protection.

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 applies to works of designers and artists. Therefore it is wise to check with the owners, or their rights management office if in doubt of infringement.

What is protected by Copyright – The Idea or the expression of an Idea?

Copyright Law protects expression; it does not protect ideas, 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. It is advisable to consult a Copyright Lawyer if you are in doubt of where your specific use falls.

Is Registration mandatory?

In India, resembling most countries, Copyright protection automatically subsists from the moment the work is created. However, it is advisable to register your work with the Copyright office as the certificate of registration of copyright and the entries made therein serve as a prima facie evidence in a court of law with reference to disputes relating to the ownership of the Copyright (posting an image on the Internet may constitute publication).

Should I register my work if Copyright protection is automatic?

It is advisable to register you work with the Copyright office even to though Copyright protection subsists automatically from the date of the inception. Statutory damages are set by law and are therefore easier to prove than actual damages, where the burden of proof lies on the author, for example, lost profits, reputation etc. It is advisable to be a position where your rights are protected by a statute. Hence, the author of work that has been registered before publishing for a considerable time, when the work is infringed, it is easier to prove actual harm in the court of law.

Registration after the reasonable window has concluded, you will not necessarily be entitled to Statutory damages or costs of the action. The burden of proof is heavier as actual damages will have to be demonstrated.

Upon registration of a Copyright, a certificate of registration is issued which creates a public record; this serves as prima facie evidence of ownership. In essence it is conclusive that a Registered mark is far more valuable for protection as compared to a un-registered mark

You might have created it, but you may not own the copyright. For example: A work created within the scope of employment (a work made for hire), the employer might be the “author” of the work for all commercial purposes. A custom commissioned work prepared for a certain use and it is expressly agreed through a signed written instrument, the work may be considered a work made for hire. In these cases, the employer or the person who commissioned the work will be entitled to the rights accrued via Copyright. 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?

The details in regard to the same are available on the site http://www.copyright.gov.in.

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 the public of Copyright ownership. A Copyright notice may be on work even if the work is not registered under the statutory 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, © 2019 Direct Create.

It is not necessary to mark your piece as being copyrighted, although it is suggested. Even if a work does not have Copyright marking or Copyright notice beside it, it does not necessarily mean that 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. A Maker/Designer/Seller may be held liable for selling Counterfeit products/Services if the seller knows, has reason to know or may have know with reasonable due diligence that the products are counterfeit, liftoff, fake or unauthorized use of a third party Copyright or Patent. If the Maker/Designer/Seller fails to disclose or misrepresents the authenticity of his marks it shall be construed as Counterfeiting. 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 and grant one or more persons/entities the rights as to the Copyright. The details in regards to the agreement may be amicably agreed between the parties.

When I sell an item, what happens to my Copyright?

A copyrighted item when sold or given away, unless you have a contract expressly 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 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 from the Copyright holder. For example, when an individual buys Jewelry from a Maker, that person may re-sell that jewelry without getting any permission from the Maker.

What is Fair Use/Fair Dealing?

In India the Doctrine of Fair dealing is a limitation and exception to the exclusive rights granted by a Copyright, it is a way to defend an allegation of Copyright infringement. Fair Dealing defense rests on the presumption that an individual should be excused citing Public Policy reasons such as the copying benefits of society due to educational welfares or in case the copying is considered commentary, criticism, news reporting or scholarly reports. If the copying is for commercial use, this defense may not be available. Artists use the Fair Use/Fair Dealing defense as a loophole to copying; this is unwise and leads to unnecessary litigation. Artistic uses are not explicitly protected.

Use of another’s work?

In some cases, courts will permit replication (getting inspired), if the amount replicated is extremely insignificant (called de minimis use). This theory states that this type of copying does not raise to a level grave enough so as 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/Fair Dealing, there is no bright line test for determining a de minimis use.

When is a Copyright Infringed?

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. A work may be infringed without a commercial use/purpose or even when the person/entity infringing does not make money from the infringement.

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 (unguarded via Copyright) and an expression (guarded via Copyright) may be difficult to draw. Artists may be inspired by other artists, previous art, and the world around them. Copyright protection laws do not preclude another author from creating an independently authored, yet identical work.

If you find an infringement in regards to your Copyright or other Intellectual Property rights on Direct Create, you may contact the other party to try to work it out or talk to a lawyer regarding legal recourse that may be followed. You may also provide Direct Create with the information specified in Direct Creates’ Intellectual Property Policy. Direct Create will not provide you with legal advice or legal representation. You may communicate with a licensed lawyer in your jurisdiction for legal advice in regards to the same.

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. Our hope is that the concerned parties can resolve any issues directly. 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 Intellectual Property Rights.

In the event Direct Create contacted you in regards to Intellectual Property Infringement, it unassumingly 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 no other recourse but to remove the material that was brought to our attention, that is until a resolution is reached between the Parties concerned or if you provide Direct Create with legally valid documentation of ownership or claim to the material objected. 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 send when we remove the material) or contact a Lawyer.

Can I repost the allegedly Infringing material after making small amendments?

Direct Create is an online marketplace and we simply cannot give you any professional legal advice on the acceptance of the re-posted listing after changing the alleged infringing material. Only a person authorized to speak and/or act on behalf of the Intellectual Property owner, or a lawyer, can opine on 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 the dispute may be amicably resolved.

While there are various other similar Listings or content, why should my listing alone be removed for potential infringing claim?

As an online marketplace for hundreds of thousands of products or services Direct Create or its affiliates do not have insight or information in regards to why similar material, or other material, remains on Direct Create. In addition, as a venue and marketplace, Direct Create cannot make conclusions about whether an item can or cannot be sold in regards to Intellectual Property, as long the material conforms to the listing conditions. Your material could have been removed based on a legally valid notice issued by a complainant (details are mentioned in our email to you while removal was effected), pursuant to our Terms of Use or IP Policy. Only a person authorized to speak and/or act on behalf of the complainant or Intellectual Property owner can decide whether something on Direct Create infringes his/her Intellectual Property. The infringement notices we receive; Direct Create is informed exactly what is the issue by the party filing the complaint.

For information regarding why certain material was included in a notice and/or why other material was not, please directly contact the party that provided the notice to Direct Create.

What if Direct Create receives multiple complaints in reference to Intellectual Property Infringement by me over time?

If Direct Create receives multiple complaints of IP infringement on your account, we would analyze your account and its contents in the light of the complaints being received. Thereafter as per our policy, we may be suspending or terminating your account. An opportunity to present your side of the case will be provided. If feasible we will see if we can refer you to a professional who you can work with to resolve the Complainant’s issues with your content.

It would not be in your interest to 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. 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 Internationally accepted Copyright regulations under the WIPO, TRIPS and WTO, as a result of these agreements, the signatory countries honor Copyrights of all other contries.

I can’t find answers to my specific question?

The law is complex and may vary from situation to situation and place to place. These topics have been argued and theorized by legal researchers, attorneys, and judges for numerous years. Since laws are always evolving, a factor that may seem unimportant now may be important at a later stage. In case you are unable to find the answer to your specific question and need further assistance it would be advised that you talk to a licensed lawyer.

Where can I get more information?

For more information on copyright law visit: http://www.copyright.gov.in/

For more information on Patent and Trademark law visit: http://www.ipindia.nic.in/