25 June, 2010

'पति के घर में है हक, उसके पैरंट्स के घर में नहीं'

पत्नी अपने पति के घर में रहने के लिए हिस्सा तो मांग सकती है, लेकिन पति के पैरंट्स के घर में कानूनी तौर पर रहने का उसका अधिकार नहीं बनता। अदालत ने याचिकाकर्ता महिला की उस दलील को खारिज कर दिया, जिसमें वह अपनी सास के घर में रहना चाह रही थी।
अडिशनल सेशन जज की अदालत ने कहा कि पति अपनी मां से अलग किसी किराए के मकान में रह रहा है। याचिकाकर्ता महिला ने दलील दी कि सास ने उसकी शादी से पहले ही वह मकान खरीदा था। ऐसे में उस मकान पर भी उसका अधिकार है, लेकिन कोर्ट ने इस दलील को खारिज कर दिया।
अदालत ने कहा कि महिला का अधिकार उसके पति के घर पर होता है और वह अपने पति के घर या पति द्वारा किराये पर लिए गए घर में रहने के लिए अधिकार जता सकती है या फिर पति की जॉइंट प्रॉपर्टी में रहने की अधिकारी है, न कि पति के पैरंट्स के बनाए गए घर में। महिला ने मैजिस्ट्रेट के उस फैसले को चुनौती दी थी, जिसमें मैजिस्ट्रेट ने महिला को सास के घर में घुसने से रोक दिया था।
1043 hrs IST,नवभारत टाइम्स

21 June, 2010

Legal Tip of the Day:::Forfeiture of Gratuity

The gratuity of an employee, whose services have been terminated for any act, wilful omission or negligence causing any damage or loss to, or destruction of, property belonging to the employer, shall be forfeited to the extent of the damage or loss so caused;
The gratuity payable to an employee shall be wholly forfeited-
· If the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
· If the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment.
Gratuity of an employee stands protected except where dismissal owes to grounds provided under the Act
Panchmahal District Co-Operative Bank limited – Petitioner
Vs
Harjivandas Purshottamdas Prajapati – Respondent
Facts of the Case:
Respondent was working as Assistant-in-charge at Sukhpur branch of petitioner Bank. While he was in service, certain serious charges of misappropriation of funds of large amount were levelled against him and proceedings were instituted against him under Indian Penal code. Thereafter, he was placed under suspension. But before the regular charge sheet could be issued and /or regular departmental inquiry could be initiated and completed, the respondent reached the age of superannuation and was allowed to retire. But his retirement was subjected to an order that, he was being superannuated and allowed to retire on condition of not paying any monetary benefits.
After superannuation the respondent approached the controlling authority claiming his gratuity. The authority ordered the petitioners to pay the gratuity with interest. Feeling aggrieved, the petitioner preferred an appeal before the appellate authority under the Act (Payment of Gratuity Act, 1972) which was rejected. Aggrieved by this decision, the petitioner Bank approached Gujarat High Court. The respondents submitted that as per provisions of the Act, withholding or forfeiture of gratuity is permissible only in circumstances and to the extent provided for under Sec.4(6) of the Act. Otherwise, the amount towards gratuity shall stand protected under Sec.13 of the Act.
Decision:
Hon’ble High Court while dismissing the petition ruled that the gratuity of an employee can be forfeited only if he is dismissed for misconducts under the Act. It was held that the orders passed by controlling or appellate authority in no manner will come in the way of the petitioner to take appropriate measure as available under law.

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Legal Point Foundation
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19 June, 2010

Legal Tip of the Day:::Shifting of a division does not amount to closure

Contributed by Team Legal Foundation
Winding up marketing division in one State and shifting of it staff to another state will not amount to closure even if the term ‘closure’ has been used in the transfer orders. The right of an employer to reorganise his work in the manner he pleases is well established.

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HC relief for boy jailed on rape charges

A boy thrown behind bars on rape charges after his minor girlfriend became pregnant, got relief from Delhi high court on Friday. The HC noted it ‘‘seems to be a case of a love affair and not rape’’.
Justice S N Dhingra asked the accused to seek bail afresh from the trial court and reiterated his directions to the police that the pregnant teen should be protected from her angry family. Interestingly, the woman while appearing before HC, claimed that though she loved the boy, she wasn’t ready to marry him yet.
HC was hearing a case in which the couple sought protection alleging their family members were threatening to kill them for eloping. A day earlier, the Delhi Legal Aid Authority had expressed the fear that the girl is facing threat from her parents and might be killed. HC had then teared into the Delhi Police for failing to protect couples from angry family and conniving with them to harass couples.
On Friday, HC asked the police to ensure nothing untoward happens to the girl, who now wants to go to her real mother in Siddharthnagar, UP. The girl is currently staying with her step mother.
‘‘As long as she stays at the present address, the IO shall visit the house of the girl once a day and ensure her safety. If she desires, police shall provide her escort up to her mother’s village where she intends to go,’’ the court said. The girl and her boyfriend were produced before the court after the parents of the girl had lodged a case alleging the boy of raping the girl in Uttam Nagar police station on March 21. The boy is under judicial custody.
‘‘It seems more like a case of love affair, instead of a case of rape. The boy had been living just opposite the house of the girl. He had come from Rajasthan about three months ago, and the girl had also come to Delhi only recently,’’ the court noted.
Source:- The Times of India 19 June 2010 Page 4 Delhi

Pacheco case: Judge recuses himself

Justice N A Britto of the Bombay High Court’s Goa bench on Friday recused himself from hearing the anticipatory bail applications filed by absconding former tourism minister Francisco ‘Mickky’ Pacheco and his former officer on special duty Lyndon Monteiro.
The judge passed an order saying “not before me’’ when the bail applications came up for hearing before him on Friday, without giving any reason.
Pacheco and Lyndon will now have to move an application before the chief justice for him to allot the anticipatory bail applications to another judge. The two had filed the applications seeking anticipatory bail in connection with the Nadia Torrado death case.
Interestingly, the fresh applications are accompanied by affidavits sworn before a notary public to avoid appearing in person in the HC office.
Pacheco’s application has been sworn before a notary in Margao, while Lyndon has sworn it in Mumbai. In his bail application, former tourism
Source:- The Times of India 19 June 2010 Page 10 Delhi

Lawyer told my parents to kill me, girl tells court

Two days after a trial court ordered Delhi Police to find a girl who had gone missing a few days after marrying her boyfriend against the wishes of her family, the ‘‘missing girl” appeared before the court and alleged that her life was in danger.
Alleging that her parents, police and an advocate were working in connivance with each other, Chanchal Sharma told the court that the lawyer had advised her parents ‘‘to kill her as she had given a bad name to their family’’. Chanchal said she did not know the name of the lawyer but that she could identify him.
She even alleged that the investigating officer, ASI Roop Lal, not only misled the Delhi high court about her age but also ‘‘forcibly picked her up from the high court complex after the dismissal of the case and threatened her that if she did not go back with her parents, she would be sent to jail’’.
The girl refused police protection, saying ‘‘she had no faith in the police’’. Vacation Judge Kamini Lau then allowed her to stay with her husband Gaurav Sharma, on the grounds that she will inform the court about her current address which will be kept a secret for security reasons.
The court also provided her with the helpline numbers of senior police officials of Delhi Police, National Commission for Women and Delhi Commission for Women ‘‘in case of any emergency’’.
‘‘One copy of the order is directed to be sent to all these authorities with the direction that in case of any call for help from the young couple, immediate assistance should be provided to them,’’ judge Lau said.
Taking a stern view of the role of the police and the lawyer, the court said that a probe was required into their roles. ‘‘It is rather unfortunate that the young girl has lost confidence in an institution (the police) whose duty it is to protect the life and liberty of individuals, and it is no other but the personnel of the police itself who are to be blamed,’’ it said.
‘‘Not only the role of the family of the girl and the IO required to be probed but also the role of the legal advisor to the family of the girl is required to be investigated (under intimation to the Delhi Bar Council) since it is not proper for legal practitioners to ill-advise their clients into finishing the life of another,’’ it added.
The girl, who claims that she is a major, married Gaurav Sharma on May 18 in an Arya Samaj temple in New Delhi. Her father, Kashi Ram Sharma, lodged an FIR at Vijay Vihar police station against Gaurav, alleging he had kidnapped his ‘‘minor” daughter with intent to wrongfully confine her.
Meanwhile, a letter sent to Delhi high court by vacation judge Lau informing HC about the development in the case is likely to be taken up on Monday.
Source:- The Times of India 19 June 2010 Page 6 Delhi

15 June, 2010

Legal Highlights-May 2010:::::Work Man, Recovery from Employer, Employment Injury

Contributed by Team Legal Point Foundation

Case 1 Work Man

  • Workman-Who is
  • Temporary employee had worked for more than 240 days in each year
  • Same was not seriously challenged before Court
  • Employee falls with in ambit of term ‘workman’ in Section 2 (s) of Industrial Dispute Act
  • Employee having worked for requisite period stipulated in relevant sections
  • The workman is entitled to protection of Section 25 F
  • Termination not proper

Case 2 Recovery from employer

  • Duty of Labour Court
  • Employee claiming wages at overtime rate for work done by them on holidays
  • They did not give any evidence
  • By itself not sufficient to refuse benefit
  • When fact that they work on holidays was admitted
  • Labour Court is required to compute benefit and determine amount payable to employees by directing employer to produce necessary records


Case 3 Employment Injury(Employees State Insurance Act)

  • Employment Injury-What constitutes husband of claimant working as night watchmen in Cinema Theater
  • He was murdered by some unknown person while performing duties
  • His dead body found at workplace during duty hours
  • Murder of deceased employee is covered by definition of ‘employment injury’ U/S Section 2 (8)
  • Presumption as accident arising in course of employment provided U/S 51 A-is applicable


Case 4 Employment Injury

  • What constitutes Suicide of employee owing to depressive neurosis consequent on employment injury sustained by him
  • Would furnish cause of action for his dependents to make claim for dependents’ benefits U/S 52
  • Plea that suicide is an offence of no consequence.

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11 June, 2010

Moily’s Mission Undertrial: 1L freed in 3 mths

The country’s overflowing prisons just got a little less crowded with nearly one lakh undertrial prisoners being freed on bail, that too in just three months. Of the over 1.7 lakh people booked for petty offences and kept in jail for years, many have been behind bars for longer than the maximum punishment for the offence had there been a conviction.
When law minister Veerappa Moily announced his ‘Mission Undertrial’ on January 16 to release or settle cases of 75% of prisoners facing trial for years for petty offences, many were sceptical of the idea while others termed it as a tall claim. He had fixed a six-month deadline for the scheme.
Surprisingly, Moily’s efforts in sensitizing state governments about violation of fundamental rights of these undertrial prisoners has yielded results. By April 31, nearly a lakh undertrials had either been released or their cases taken to the logical conclusion — conviction or acquittal — in just three months.
The highest number of prisoners, 29,009, was released in Uttar Pradesh accounting for almost one-third of the total. It was followed by Orissa (13,664), Andhra Pradesh (9,116), Delhi (8,701), Maharashtra (7,252), MP (6,252), Haryana (3,219), Gujarat (3,101), Karnataka (2,423), Kerala (2,334), Punjab (2,169), J&K (1,360) and Jharkhand (1,343).
The worst performing state in terms of releasing prisoners was West Bengal, which released only 287 of them and that too in February and none thereafter. Tamil Nadu also did not appear to be sensitive enough to the rights of prisoners as only 608 were released.
Under ‘Mission Undertrial’, Moily attempted to end traditional apathy towards undertrials by writing to chief justices of HCs requesting them to facilitate early release of these prisoners. The mission was launched on January 26, Law Day.
India has around 1,500 jails having a capacity to lodge 2.50 lakh prisoners, but they house close to 3.50 lakh inmates. As many as 70% of the jail population is made up of undertrials, around 2.45 lakh. As 70% of undertrials are booked for petty offences, this category in jails would be 1.70 lakh.
Moily said various ways were adopted to allow the languishing undertrials to get out of prison — plea bargaining system in which the undertrial accepts guilt and the court records conviction and releases him by sentencing him to a period of imprisonment already undergone, expediting their cases by holding trials on a day-to-day basis and holding court proceedings inside prison premises or through video-conferencing.
To ensure that there was no hitch from government, Moily divided the country into various zones and put an additional solicitor general in charge of it to ensure that the first actual legal reform — releasing undertrials — was successful.
Source:- TheTimes of India 11 June 2010 Page 11 Delhi

Court trial, probe by dept can go hand-in-hand: HC

The Delhi high court on Thursday said a departmental inquiry and criminal proceedings can go handin-hand against a government employee in a disproportionate assets case. The court’s ruling came while dismissing a plea of an officer with National Textile Corporation Limited (NTC) who had sought quashing of departmental proceeding on the ground that he was being prosecuted in a criminal court and hence, could not be tried twice for the same offence.
‘‘Principles of natural justice do not require that the employer should wait for the decision of the criminal court before taking disciplinary action against the employee,’’ said justice Rajiv Sahai Endlaw while referring to SC judgments.
‘‘It is not in the interest of the administration that persons accused of serious misdemeanour should be continued in office indefinitely and for long periods awaiting the result of criminal proceedings. Such a situation was held to be serving the interest of the guilty and the dishonest only,’’ he said.
HC passed the order on a petition filed by one Raj Kumar Sharma who was suspended after the CBI arrested him and filed a criminal case for allegedly amassing assets disproportionate to his known sources of income. Later on, the NTC also initiated a inquiry against him.
Source:- TheTimes of India 11 June 2010 Page 3Delhi

COPS WERE TOLD TO PROTECT WITNESS:Officers detained for court contempt

Tis Hazari Court witnessed a little drama on Thursday when two senior officers of the Delhi Police were detained by a magistrate in his courtroom.
Irked that the police had ignored his direction to provide security to a witness claiming threat to his life, metropolitan magistrate (MM) Ashish Aggarwal asked the two cops — DCP (security) Ajay Kumar and additional DCP (special cell) Shivesh Singh to remain in court till it presides for the day. The duo had appeared in response to court summons around 10 am on Thursday on a contempt of court plea filed by one Madanlal Suryvwanshi, a former candidate for assembly elections. Suryvwanshi had alleged that he was being threatened by political rivals as he had filed cases against them.
The metropolitan magistrate had earlier issued a showcause notice asking the two officers to explain why they shouldn’t be referred for contempt action to the Delhi high court for failing to protect a witness despite court orders. Pointing out that the HC has repeatedly stressed that witnesses ought to be granted protection, the magistrate expressed his unhappiness with the way Delhi Police treated the court order.
After the officers had waited for almost two hours, the district judge transferred the case from the MM’s court to that of chief metropolitan magistrate (CMM) who allowed the officers to leave. She asked Suryvwanshi to approach the Delhi Legal Services Commitee.
Suryvwanshi said: ‘‘I hadfiled two cases against senior Congress leaders, including CM Sheila Dikshit and Sajjan Kumar, regarding poll malpractices in April 2004 and November 2008. Ever since, I have been threatened. I moved the court. However, even after directions to the police by the court on 26 February, the police did not provide me the security.”
Source:- TheTimes of India 11 June 2010 Page 3Delhi

Toddler gets court ‘summons’

Cops Claim Notice For Uncle, Kin Say Nobody By That Name

Delhi Police’s list of the bizarre seems to get longer. A family from Kanjhawala has alleged that a two-and-half-year old baby family has been served a notice at the behest of Delhi Police for breaching the peace of the locality. In the notice served by the special executive magistrate, the child, Rehman (name changed), has been asked to be present in court on June 15 and pledge that henceforth he will not disrupt peace. Outer district police say it is a case of two persons in the family sharing the same name and the adult trying to escape punishment by using the child’s name. The notice, the family says, was issued after Rehman’s family allegedly had a heated argument with another group of local residents over the control of a water line in their area.
‘‘The notice mentions the name of Rehman’s grandfather Shakeel, his father Mintu, and his uncle Pintu who is also called Rehman. There is no mention of the child in the notice,’’ said Chhaya Sharma, DCP (outer district).
Shakeel challenged the police version. ‘‘There is no one with the name of Rashid even in my extended family except my grandson. The notice served to us only mentions the name of Rashid. There is no mention of Pintu in the notice,’’ Shakeel said.
The incident for which the notice has been served, dates back to May 20 when Shakeel’s son Mintu picked up a fight with the neighbours who they allege were trying to ‘‘dig and place a new waterline illegally in front of the house.’’ An argument ensued, which ended only after a call was made to the PCR and cops came. On May 21, both the warring parties were called to the Kanjhawala police station. ‘‘It was there that we challaned both sides and asked them to report to the SEM court. The notice which was issued on May 26 was finally sent to the family on June 1,’’ said DCP Sharma. She said the family was being misled. ‘‘The notice is just a restraining order to ensure peace in the area,’’ she said. The local police, however, claimed that this was a ploy by the family to escape penalty. ‘‘The uncle is using the nephew’s name to get away from the law,’’ claimed an officer in the Kanjhawala police station.
However, the family said they will follow the police directions. ‘‘We will appear in court on June 15. We will explain our stand and tell the authorities that the police had not visited our residence even once,’’ said Shakeel. ‘‘We are ready to look into their grievances if they contact us or appear in court on the designated day,’’ said Sharma.
Source:- TheTimes of India 11 June 2010 Page 3 Delhi

09 June, 2010

Ex parte award passed on presumption that summons were sent by registered post must have been received, can be set aside

Contributed by Abhinav Kaushik Advocate
Volunteer Legal Point Foundation
The Workman raised an industrial dispute against Modi sugar mills, the mill referred the matter to the labour court II, Ghaziabad.
The summons were sent to the petitioner mill by a regd. post and the same was not returned after serving and acknowledgement due was received.
The labour court presumed the service of summons was sufficient.
The petitioner mill challenged the ex-parte award in HIgh court.
The High court opined that the award passed by labour court was not sustainable in law and is hereby quashed.
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08 June, 2010

Sections and law point dealing with Judgment on Bhopal Gas Tragedy

Contributed By Dinesh Miglani Advocate
Secretary Legal Point Foundation
In Bhopla Gas Tragedy yesterday a local court held former chairman of UC's India arm, Keshub Mahindra, and six others guilty under bailable sections of the Indian Penal Code and sentenced them to two years in prison. All are being charged under sections 304(A) (death by negligence), 336 (endangering life & safety), 337 (causing hurt) and 338 (grievous hurt). As the prosecutions wants this case to come under Section 304 II of IPC in which the maximum punishment is 10 years. But Supreme Court in 1996 decided that this case come under 304 ( A) because the whole incident was the result of rash and negligent act.
Indian Penal code reads these sections as :
Section 304A. Causing death by negligence
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 336. Act endangering life or personal safety of others
Whoever does any act so rashly or negligently as to endanger human life or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to three months, or with fine which may extend to two hundred and fifty rupees, or with both.
Section 337. Causing hurt by act endangering life or personal safety of others
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338. Causing grievous hurt by act endangering life or personal safety of others
Whoever causes grievous hurt to any person to doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Section 304. Punishment for culpable homicide not amounting to murder
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life ,or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,Or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death ,but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

04 June, 2010

COPYRIGHT LAW IN INDIA

Contributed by Abhinav Kaushik Advocate
Copyright is the legal protection given to the creator of an original literary or artistic work. It is the exclusive right granted by the law to creator of such original work, to do, authorize, or prohibit certain acts in relation to such work. Copyright assumes supreme importance for authors, artists, architects, composers, music production companies and producers, film production companies, computer programmers and designers. Before the signing and the subsequent introduction of the 1957 Act, the copyright laws of India were governed by the Copyright Act of 1914. This act was linked to the British Copyright of 1911 to India. Most of the laws contained in the Copyright Act of 1957 are based on the copyright law of the United Kingdom--specifically the Copyright Act of 1956. India's copyright laws comply with most international conventions and treaties dealing with copyright protection. The country is a member of the Berne Convention of 1886, the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights Agreement of 1995--or TRIPS. The country is not a signatory to the Rome Convention of 1961, but the laws regarding the copyrights in the country still comply with the convention. The Copyright Act, 1957 protects original literary, dramatic, musical and artistic works and cinematograph films and sound recordings from unauthorized uses. The present article is an attempt to highlight major areas of the copyright law in India. It does not cover the entire law but is an endeavour to make the law and the process easier to understand from perspective of man with or without legal background. 1. Definitions a) Work Classes of works for which copyrights protection is available in India · Original literary, dramatic, musical and artistic works; · Cinematograph films; and · Sound recordings. b) Artistic work · a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; · a work of architecture; and · any other work of artistic craftsmanship. c) Musical work "Musical work" means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music. d) Sound recording "Sound recording" means a recording of sounds from which sounds may be produced regardless of the medium on which such recording is made or the method by which the sounds are produced. A phonogram and a CD-ROM are sound recordings. e) Cinematograph film "Cinematograph film" means any work of visual recording on any medium produced through a process from which a moving image may be produced by any means and includes a sound recording accompanying such visual recording and "cinematograph" shall be construed as including any work produced by any process analogous to cinematography including video films. f) Coverage for Government Work The copyright of 1957 also calls for protection of government work. Government work, according to the act, refers to all works that are made, published and made under the direction or control of the government, the legislature, the courts, tribunal and other judicial authority. g) Author Ordinarily the author is the first owner of copyright in a work. · In the case of a literary or dramatic work the author, i.e., the person who creates the work. · In the case of a musical work, the composer. · In the case of a cinematograph film, the producer. · In the case of a sound recording, the producer. · In the case of a photograph, the photographer. · In the case of a computer generated work, the person who causes the work to be created.
2. Assignment of copyright Assignment of Copyrights can be made in whole or in part either generally or subject to limitations and either for the whole term of the copyright or any part thereof. In other words, you may assign away 50%, 1%, or 99% of your interest in that Copyright. Assignments may be integrated into a contract, or may be drafted separately. a) Mode of assigning copyright It shall be in writing signed by the assignor or by his duly authorised agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties. b) Period of assignment If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment. c) Assignment and License • A license is an authorization of an act which, without such authorization becomes infringement. • In essence a license is a grant of authority to do a particular thing which otherwise could not have been done. • It amounts to a consent or permission granted by the owner of copyright that the licensee could carry out a restricted act which but for such permission could have been an infringement • Owner of copyright in an existing work or future work ‘may grant any interest in the right by license in writing signed by him or his duly authorized agent’ (S. 30) Transfer of ownership of the rights Assignment leaves nothing in the grantor qua the right assigned bestowing in the grantee the whole of the legal interest in the right Capacity to sue for infringement A licensee cannot sue for infringement of copyright unless he joins the copyright owner as a co plaintiff in the action. Section 61 of the Act provides that in every civil suit or other proceeding regarding infringement of copyright instituted by an exclusive licensee, the owner of copyright shall be made a defendant, unless the court otherwise directs. In such situations the owner of the copyright can dispute the claim of exclusive license. This provision thus protects the interests of the right holders.
3. Examples of subsistence/rights a) Rights in a musical sound recording A sound recording generally comprises various rights For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music,. It is necessary to obtain the licences from each and every right owner in the sound recording. This would, inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music. b) Owner of copyright in works by journalists during the course of their employment In the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work. c) Owner of the copyright in the case of a work produced for valuable consideration at the instance of another personIn the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
4. Adaptation In the law of copyrights the exclusive right of the author of a literary project to reproduce, publish, and sell his or her work, which is granted by statute, adaptation refers to the creation of a derivative work, which is protected by copyright laws. A derivative work involves a recasting or translation process that incorporates preexisting material capable of protection by copyright. An adaptation is copyrighted if it meets the requirement of originality, in the sense that the author has created it by his or her own proficiency, labor, and judgment without directly copying or subtly imitating the preexisting material. Mere minor alterations will not suffice The Copyright Act defines the following acts as adaptations: Ø Conversion of a dramatic work into a non dramatic work Ø Conversion of a literary or artistic work into a dramatic work Ø Re-arrangement of a literary or dramatic work Ø Depiction in a comic form or through pictures of a literary or dramatic work Ø Transcription of a musical work or any act involving re-arrangement or alteration of an existing work. The making of a cinematograph film of a literary or dramatic or musical work is also an adaptation. Copyright over news There is no copyright over news. However, there is copyright over the way in which a news item is reported.
5.Registration Of Copyright a) Guidelines regarding registration of a work under the Copyright Act Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work. Copies of the Act and Rules can be obtained from the Manager of Publications, Publication Branch, Civil Lines, Delhi or his authorised dealers on payment. The procedure for registration is as follows: • Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ; • Separate applications should be made for registration of each work; • Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules ; and • The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney (neither notarization nor consular legalization required) has been executed. The Power of Attorney signed by the party and accepted by the advocate should also be enclosed. b) Both published and unpublished works can be registered. Three copies of published work may be sent along with the application. If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office. If the work is a Computer programme, in addition to the above 3 Copies of the work in CD or Floppy Diskette must be provided. c) Steps involved in getting copyright registration certificate : 1. The application with complete details is filed. 2. Thereafter, the application is examined and objections, if any, are raised. 3. The certificate is issued by the copyright office after the objections, if any, are removed to the satisfaction of the department. When a work has been registered as unpublished and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with prescribed fee. 6. Term of Copyright The duration of copyrights varies from country to country. The minimum duration of copyright protection under Berne Convention is 50 years. European Union and for countries of the European economic area and in the US the duration is 70 years. In India copyrights are protected for a period of sixty years from the beginning of the calendar year next following the year in which the author dies. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication. 7. Performer’s Rights As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. "Performance" in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers. Rights of a performer A performer has the following rights in his/her performance: · Right to make a sound recording or visual recording of the performance; · Right to reproduce the sound recording or visual recording of the performance; · Right to broadcast the performance; · Right to communicate the performance to the public otherwise than by broadcast. Performer’s rights subsist for 25 years. 8. Protection of Foreign Works The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.The Berne Convention and the TRIPS Agreement stipulate the subsistence of copyright in original literary, dramatic, musical and artistic works; cinematographic film and sound recordings. These classes includes variety of works like books, pamphlets and other writings; lectures, addresses, sermons; dramatic or dramatic-musical works, choreographic works; musical composition, chirographic works; drawing, painting, architecture, sculpture, engraving; and lithography, photography, maps, plans, sketches, three dimensional works, translations, encyclopedias and anthologies, software codes, multimedia productions, etc. 9. Copyright Infringements Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy. The 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) Civil remedies for copyright infringement A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts. The District Court concerned has the jurisdiction in civil suits regarding copyright infringement. b) Copyright infringement: Criminal offence under the copyright law Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act. The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh. Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate. c) Jurisdiction No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Copyright Act. d) Defenses to infringement A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. It is possible for an author to create a work independently while bearing similarities to another. If access is not established, there is no copying, even if there is a striking similarity between the two works. For this reason, corporations will destroy or return unsolicited mailings from authors as a policy.Some acts that would otherwise be a copyright infringement are excused through the concept of "fair use." The statute states that use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is fair use. As to works not in these categories, the statute states that the factors to be considered include the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon a potential market for or value of the copyrighted work. This involves balancing the interests of the copyright owner and the one copying the material.
6. Term of Copyright The duration of copyrights varies from country to country. The minimum duration of copyright protection under Berne Convention is 50 years. European Union and for countries of the European economic area and in the US the duration is 70 years. In India copyrights are protected for a period of sixty years from the beginning of the calendar year next following the year in which the author dies. In the case of original literary, dramatic, musical and artistic works the 60-year period is counted from the year following the death of the author. In the case of cinematograph films, sound recordings, photographs, posthumous publications, anonymous and pseudonymous publications, works of government and works of international organisations, the 60-year period is counted from the date of publication. 7. Performer’s Rights As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance. "Performance" in relation to performer’s right, means any visual or acoustic presentation made live by one or more performers. Rights of a performer A performer has the following rights in his/her performance: · Right to make a sound recording or visual recording of the performance; · Right to reproduce the sound recording or visual recording of the performance; · Right to broadcast the performance; · Right to communicate the performance to the public otherwise than by broadcast. Performer’s rights subsist for 25 years. 8. Protection of Foreign Works The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.The Berne Convention and the TRIPS Agreement stipulate the subsistence of copyright in original literary, dramatic, musical and artistic works; cinematographic film and sound recordings. These classes includes variety of works like books, pamphlets and other writings; lectures, addresses, sermons; dramatic or dramatic-musical works, choreographic works; musical composition, chirographic works; drawing, painting, architecture, sculpture, engraving; and lithography, photography, maps, plans, sketches, three dimensional works, translations, encyclopedias and anthologies, software codes, multimedia productions, etc. 9. Copyright Infringements Copyright infringement (or copyright violation) is the unauthorized or prohibited use of works covered by copyright law, in a way that violates one of the copyright owner's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works. For electronic and audio-visual media, unauthorized reproduction and distribution is also commonly referred to as piracy. The 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) Civil remedies for copyright infringement A copyright owner can take legal action against any person who infringes the copyright in the work. The copyright owner is entitled to remedies by way of injunctions, damages and accounts. The District Court concerned has the jurisdiction in civil suits regarding copyright infringement. b) Copyright infringement: Criminal offence under the copyright law Any person who knowingly infringes or abets the infringement of the copyright in any work commits criminal offence under Section 63 of the Copyright Act. The minimum punishment for infringement of copyright is imprisonment for six months with the minimum fine of Rs. 50,000/-. In the case of a second and subsequent conviction the minimum punishment is imprisonment for one year and fine of Rs. one lakh. Any police officer, not below the rank of a sub inspector, may, if he is satisfied that an offence in respect of the infringement of copyright in any work has been, is being, or is likely to be committed, seize without warrant, all copies of the work and all plates used for the purpose of making infringing copies of the work, wherever found, and all copies and plates so seized shall, as soon as practicable be produced before a magistrate. c) Jurisdiction No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under the Copyright Act. d) Defenses to infringement A defendant in an infringement action may rebut the presumption of copying by a showing of independent creation. It is possible for an author to create a work independently while bearing similarities to another. If access is not established, there is no copying, even if there is a striking similarity between the two works. For this reason, corporations will destroy or return unsolicited mailings from authors as a policy. Some acts that would otherwise be a copyright infringement are excused through the concept of "fair use." The statute states that use for purposes of criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is fair use. As to works not in these categories, the statute states that the factors to be considered include the purpose and character of the use, including whether it is of a commercial nature or for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon a potential market for or value of the copyrighted work. This involves balancing the interests of the copyright owner and the one copying the material. 10. Exemptions Subject to certain conditions, law allows any use of a work without permission of the owner of the copyright. Some of the exemptions are the uses of the work •for the purpose of research or private study, • for criticism or review, • for reporting current events, • in connection with judicial proceeding, • performance by an amateur club or society if the performance is given to a non-paying audience, and • the making of sound recordings of literary, dramatic or musical works under certain conditions. 11. Use of the "©" symbol Anyone who claims copyrights in a work can use copyright notice to alert the public of the claim. It is not necessary to have a registration to use the designations though it is highly advisable to incorporate a copyright notice like the symbol, letter "c" in a circle or the word "Copyright" followed by name of copyright owner and year of first publication.