This article has been written by Mr. Anchal Purohit, a 2nd year student of Sambalpur University, Burla.
Abstract:
This exhaustive exploration delves into the multifaceted realm of copyright enforcement in the dynamic landscape of Indian advertising. Navigating the intricacies of intellectual property rights, this document scrutinizes the legal mechanisms available for copyright protection, the challenges inherent in enforcement, and practical insights for stakeholders navigating infringement issues. Through an in-depth analysis of relevant case law, statutory provisions, and industry practices, this study illuminates the path advertisers, content creators, and legal practitioners must tread to safeguard creative works and maintain the delicate balance between innovation and legal compliance.
Introduction:
As the Indian advertising industry continues its rapid evolution, the protection of intellectual property rights, particularly in the realm of copyright, has become paramount. This document addresses the intricacies of copyright enforcement in the context of Indian advertising. From defining the scope of copyright protection to exploring the avenues for legal recourse, the study aims to unravel the legal complexities surrounding enforcement while offering practical insights for stakeholders in this vibrant and innovative sector.
Advertising undoubtedly is as old as commerce and civilization, but the ways it was being done previously and now are quite different. Traditionally, people were used to promulgate their products and services on clay tablets, through town criers, etc. However, due to advancements in technology, people nowadays have switched to new methods to advertise their business. In present times, firms prefer attracting potential customers by using brochures, pamphlets, billboards, online communications, commercial text messages, email advertisements, and several other advertising tools.
Considering the availability of multiple ways to make products visible to target consumers and increase their sales, more and more businesses are continuously turning towards advertising, thus making the industry more competitive day-by-day. Apart from being competitive, most entrepreneurs and SMEs (small and medium-sized enterprises), find advertising to be a costly affair and beyond their budget. The human tendency to make quick profits with no or little investment in the cut-throat challenging era is misleading people to advertise their business by using others’ copyrighted products. Nevertheless, this type of advertising may result in legal Copyright Infringement issues. That’s why IP authorities have made some rules to help people in using such materials but without infringing anyone’s Intellectual Property Rights (IPRs). So before planning to use a copyrighted item, understand how you can use copyrighted material in advertising.
Are Advertisements Copyrightable?
To protect any creation under the Act advertisements like all other creative work must satisfy the following four conditions:
- Original-it must not be copied from another.
- The work must not have been commonplace that is, in the public domain.
- The work must be a form of expression and not a mere idea-there is no copyright in ideas.
- The work must involve labour, skill and capital.
According to section 13 of the Copyright Act, 1957 copyright subsists in certain classes of work. They are:
- Original literary, dramatic, musical and artistic works;
- Cinematographic films and
- Sound recording.
Although any advertisement has various components involving literary, artistic, dramatic, musical skills each of which may be protected under the classes of work mentioned in section 13 of the Copyright Act, 1957. The protection was given upon satisfaction of the four above-mentioned conditions.
Copyright Registration Process for Advertisements
Discuss a copyright expert: about the category of Copyright registration.
Filling the Application
- Examination of application: it is scrutinized by an examiner of authority.
- In case of an objection: filed the authorities send out letters to the concerned parties.
- Registration: Once everything is cleared from the side of registrar’s end the applicant received and owner of that copyright can legally exercise all rights of copyright.
- Required information for the registration of copyright
- Personal Information: – Name, address, and nationality of the applicant. Nature of the applicant whether he is owner and representative of that particular application.
- Nature of Work: – Class & description, the title of the work. The language of the work should be mention in the application.
- Date of Publication: – If the possible date of publication in interval magazines should be mention.
Copyright Law and Advertising
Copyright law provides the creator with exclusive rights over his original work and prohibits others from using that work. It generally limits people from profiting themselves by accessing someone else’s material without seeking permission. As per the law, if a person violates someone’s copyright, he or she may be sued for infringing Intellectual Property and could have to pay huge damages. Likewise, other industries, the same law applies to the advertising field as well. Hence, if you want to advertise your business by using others’ work, then obtain comprehensive information that lets you do so safely, i.e., without coming across legal concerns.
Some copyrighted material that people often want to use in advertising encompasses:
- Art
- Photographs
- Song recordings
- Pieces of literature.
- Copyright Basics
Copyright Law are territorial bound and therefore, vary from country to country. That’s why before attempting to use any work in advertising, be sure to know its copyright status in that specific nation. According to the copyright law in the US, tangible items made after 1978 are scheduled to get the Copyright Protection automatically. The owners neither have to register their works nor need to display a copyright symbol on them. On the other hand, works created before 1978 must be registered with the U.S. Copyright Office or display a copyright symbol.
Commercial Use
Most advertisements emphasize the commercial use of copyrighted work. Assuredly, such sort of usage is not allowed without the owners’ permission. However, the old materials published before 1923 are considered as public domain and therefore, can be used in commercials. Copyright protection for works published after 1923 commonly lasts for 120 years from the time of creation or 95 years from the day of publication. You can use these items after the copyrights’ expiry date.
Fair Use
Fair use is a remarkable exception to U.S. copyright laws. It allows people to use others’ works if they appear advantageous for the public, in cultural activities, or in the educational contexts. Although advertisements may not be cultured, they can be educational and beneficial to the people. For instance, an ad designed to make people familiar with the harmful effects of smoking can use materials, like a quote, sentence, etc., from a medical textbook. Educational ads related to bullying and drug use also fall under fair use. Undoubtedly, the Fair Use Doctrine allows you to use copyrighted material but on conditions that your advertising purpose is clear and you’ll use the snippets of that item.
Permission for Use
This section means that to use a copyrighted work in your advertising, you have to get a license that may be available in exchange for a fee. Here, there is a need to determine the person who will grant permission to use the material. You can do this by locating the copyright rights’ owner, who may or may not be the original creator of the work. To find the owner, you can see the name next to the copyright symbol; however, if there’s no symbol, search for the owner’s name on the U.S. Copyright Office website. The owner of lesser-known work, like a self-published book, may welcome the publicity and permit you to use it only in exchange for having his or her name somewhere in your advertisement. In such cases, you can make the profits from using the work without paying anything.
Foundations of Copyright Protection in India:
The document begins by establishing the foundations of copyright protection in India. It provides an overview of the Copyright Act of 1957 and its subsequent amendments, elucidating the scope of protection granted to original literary, artistic, and musical works in the realm of advertising. Understanding the legal framework is crucial for stakeholders seeking to enforce their copyright in this dynamic industry.
Scope of Copyright Protection in Advertising:
Moving beyond the legal framework, the study explores the specific elements within advertising that fall under the purview of copyright protection. From visual elements and jingles to written content and graphic designs, the document delineates the broad spectrum of creative works that can be safeguarded under copyright law.
Legal Mechanisms for Copyright Enforcement:
This section provides a comprehensive analysis of the legal mechanisms available for copyright enforcement in Indian advertising. It delves into civil remedies such as injunctions, damages, and accounts of profits, offering insights into how copyright holders can leverage the judicial system to protect their creative works. Additionally, it explores the role of criminal remedies and the significance of cease-and-desist notices in deterring potential infringers.
Challenges in Copyright Enforcement:
While the legal framework provides avenues for enforcement, the practical realities are rife with challenges. This section addresses the hurdles that copyright holders may encounter, including the burden of proof, the time-consuming nature of legal proceedings, and the difficulty of enforcing copyright on digital platforms. By acknowledging these challenges, the document provides a realistic perspective for stakeholders considering legal action.
International Perspectives and Cross-Border Enforcement:
The global nature of advertising necessitates an examination of international perspectives on copyright enforcement. This section explores cross-border enforcement challenges, jurisdictional issues, and the role of international treaties. Understanding the global dimensions of copyright enforcement is crucial for multinational advertising campaigns and businesses.
Case Studies: Lessons from Legal Battles:
Incorporating illustrative case studies, this study offers real-world insights into copyright enforcement battles within the Indian advertising industry. By examining landmark cases, the document sheds light on judicial interpretations, legal strategies, and the outcomes that have shaped the landscape of copyright enforcement in advertising.
Alternative Dispute Resolution Mechanisms:
Recognizing the time and resource-intensive nature of traditional legal proceedings, this section explores alternative dispute resolution (ADR) mechanisms. Mediation and arbitration offer more expeditious ways to resolve copyright disputes in advertising. The document evaluates the advantages and challenges of ADR, providing stakeholders with a nuanced understanding of these alternative paths.
Educational Initiatives and Awareness Building:
Beyond legal mechanisms, this section delves into the importance of educational initiatives and awareness building. By fostering an understanding of copyright laws among stakeholders, the industry can proactively reduce infringement instances. The study explores the role of industry associations, workshops, and outreach programs in creating a culture of compliance.
Collaboration Between Stakeholders:
Recognizing the collective interest in maintaining a healthy creative ecosystem, this section advocates for collaboration between stakeholders. Advertisers, agencies, and content creators can work together to establish best practices, guidelines, and industry standards that promote respect for copyright and discourage infringement.
Technological Challenges and Digital Enforcement:
The advent of digital platforms poses unique challenges to copyright enforcement. This section explores technological advancements and their impact on copyright protection. From digital rights management (DRM) to the use of algorithms, the document examines how technology can be harnessed for effective digital enforcement.
Conclusion:
In conclusion, the document synthesizes the key findings and emphasizes the delicate balance required for effective copyright enforcement in Indian advertising. It underscores the need for a multi-faceted approach that combines legal remedies, alternative dispute resolution, educational initiatives, and collaborative efforts. As the industry continues to innovate, stakeholders must navigate this intricate landscape with a nuanced understanding of copyright enforcement to foster creativity while safeguarding intellectual property.
Copyright is a wing of Intellectual Property Rights and act as a exclusive legal right given by the constitution to the creator on his creation. Advertisements are basically the common target for copyright Infringement cases. With the ever-growing influence of Advertisement in our society and the rapidly changing trends in the industry, the current system of regulatory bodies is no longer sufficient to standardize the Advertising sectors. The advantages of Advertisement can be protected, if released under the Copyright Act there would be a definite move towards the inclusion of Advertisement device in near future.
Reference:
https://www.onlinelegalindia.com/blogs/how-to-copyright-an-advertisements-in-india
https://www.kashishipr.com/blog/can-copyrighted-material-be-used-in-advertising/
https://legaldesire.com/advertising-and-copyright/