Introduction
The copyright law protects the intellectual creations in
original literary and artistic works. The copyright protection commences as
soon as the work is created and it does not require any registration
formalities. Traditionally the concern of copyright law was limited to books,
music, paintings or films. Copyright protection has now taken new dimensions
and today it extends to even computer software and compilations of data.
Copyright has some closely related rights that confer similar principles of
protection. These are known as “related rights” or “neighbouring rights”.
These rights protect persons, other than the creators, who are involved in the
dissemination of copyrighted work. These rights are confined to three specific
categories of persons: performers, producers of phonograms and broadcasting
organizations. In some countries such rights may be a part of the copyright
law,while
in others there is different legislation to protect these rights. The Berne
Convention for the protection of Literary and Artistic works, as revised up to
1971, provided the highest level of international legal protection for
copyright, prior to TRIPS. With the conclusion of TRIPS under the Uruguay
Round of multilateral trade negotiations, protection of copyright and related
rights became, for the first time, a subject covered by the international
trade law. Articles 9 to 13 of TRIPS prescribe the “minimum standards” for the
protection of copyright. Article 9.1 of TRIPS establishes that WTO members
must comply with Articles 1 to 21 of the Berne Convention, 1971, including the
Appendix thereto. The Berne Convention requires that the enjoyment and
exercise of copyright cannot be subjected to any formality such as
registration. The only exception to adherence to the Berne Convention is
Article 6bis, which obliges the members to protect the moral rights of the
authors. Article 9(2) of the Berne Convention contains exceptions to the
exclusive right of reproduction conferred by the copyright law. The
pre-requisites for the applicability of this Article are:
(a) These limitations and
exceptions should be granted in certain special cases,
(b) These should not
conflict with the normal exploitation of the work, and
(c) These should not
unreasonably prejudice the legitimate interests of the author.
In the context
of copyright, TRIPS does not confine this Berne exception only to the right of
reproduction but extends it to all exclusive rights conferred by copyright.
Copyright in Fonts
The claim of copyright in “Fonts” has to
be analysed form the point of view of both the Constitution of India and the
Copyright Act, 1957.
(1) Constitutional discourse
The right to
impart and receive information is a species of the right to freedom of speech
and expression guaranteed by Article 19(1)(a) of the constitution of India. A
citizen has a Fundamental Right to use the best means of imparting and
receiving information. The State is not only under an obligation to respect
the Fundamental Rights of the citizens, but also equally under an obligation
to ensure conditions under which the Right can be meaningfully and effectively
be enjoyed by one and all. Freedom of speech and expression is basic to and
indivisible from a democratic polity. One of the most important components of
freedom of speech and expression is the free and unhindered use of the
appropriate language. A society cannot effectively communicate if a
restriction or sanction is imposed on it in any manner whatsoever. This
discussion becomes relevant in the background of the controversial attempt to
claim copyright in the “Fonts” of Kannadan language, which is a language used
by over 50 million people in India and is officially recognized by the
Constitution of India. A copyright in fonts would confer an indirect copyright
in the language itself, which cannot be justified in any circumstances. Such a
claim would definitely be violative of Article 19(1) (a) of the Constitution
of India.
It must be
noted that Article 21 of the Constitution of India confers a “right to know”
on all persons. In R.P.Limited v Indian Express Newspapers
the Supreme Court read into Article 21 the right to know. The Supreme Court
held that right to know is a necessary ingredient of participatory democracy.
The ambit and scope of Article 21 is much wider as compared to Article
19(1)(a). Thus, any attempt to curb the right to know, whether directly or
indirectly, would be violative of Article 21 of the Constitution of India. If
a copyright were granted in respect of “fonts”, then right to know would
definitely be violated because then knowledge cannot be shared and distributed
among masses.
(2) Statutory discourse
The argument
against granting or claim of copyright in “fonts” also finds support from the
basic philosophy and ideology of the Copyright Act, 1957. The following points
has to be considered before copyright in “fonts” can be granted:
(1) Whether the
“fonts” in controversy fulfill the requirements of section 13(1) (a) of the
Copyright Act, 1957? This section requires that copyright shall, subject to
provisions of this section and other provisions of the Act, subsist in
original literary, dramatic, musical and artistic works. It is submitted that
“fonts”, of the present nature, do not satisfy the requirements of section
13(1) (a) of the Act. The Kannada language has been in use from a long time
and is recognized as one of the language under the Constitution of India. The
moment it is recognized by the Constitution, the base of all the laws, it
ceases to be a private right and becomes a public property. In such language
no person can claim a copyright since it cannot be considered as original
work, as the work already exists in the public domain. Merely because certain
fonts have been added cannot convert it into a private property. It must be
noted that what cannot be done directly should not be achieved indirectly.
Since no person can claim a copyright in language, hence the same cannot be
granted in the form of “fonts”, which is nothing else but an indirect
copyright in the language.
(2) The
copyright in “fonts’ can be claimed within the strict parameters of the Act
only. Thus, if the concerned work does not satisfy the requirements of the
Act, then no copyright can be claimed in the concerned work.
As discussed above, the work in question do not fulfill the essential
requirement necessary for the grant of copyright. It must be noted that
although no registration formalities are required for the acquisition of
copyright, but certain minimum requirements are inevitably required to be
complied with. These requirements are expressly provided in the Act, and no
copyright can be claimed in derogation if them.
(3) The first
owner of the copyright has to be found according to the provisions of section
17 of the Act, before any claim for copyright of “fonts” is accepted. If a
person claims a copyright, which is primarily and literally based on another’s
copyright, then the former cannot claim that his copyright is violated if a
third party uses that common material. As discussed above, when the language
is a “public property”, then no person can claim an exclusive right over it.
(4) Even
assuming for the sake of argument that the fonts in question are fit for the
grant of copyright, still the same can be used in the given peculiar facts and
circumstances of the case by virtue of section 52 of the Act. Further, even
after the grant of copyright, a compulsory licence can be granted in case of
misuse of the same.
Conclusion
The object of Copyright Act, 1957 is to
protect intellectual creations of the concerned persons on the one hand and to
maintain a balance between the public interest and the rights of that person
on the other hand. The concept of public interest is given a paramount
importance in our constitutional scheme, which is a mandate of a welfare State
like India. The ultimate fate of the claim of copyright in “fonts” depends
upon that fact whether it satisfy the requirements of both the Constitution of
India and the Copyright Act, 1957. Even if the copyright is claimed or granted
in this situation, the same can be challenged, perhaps successfully, in the
given facts and circumstances.
Delhi
7/6/04 12:54:14 PM
Related Articles:
Can
"Fonts" be Copyrighted?
