Category: Copyright

BRAILLE UNDER COPYRIGHT LAW

Copyright is an intangible right given to the author of an original artistic work.  It protects the work from reproduction or publishing for monetary gain without the consent of the owner. The words generally used while discussing infringement are reproduction, translation, adaptation, derivation and transformation. Though it may seem that they have same or similar meaning, in the theory of copyright, they have a different status.

In the case of a literary work, copyright means the exclusive right:

  • To reproduce the work
  • To issue copies of the work to the public
  • To perform the work in public
  • To communicate the work to the public.
  • To make cinematograph film or sound recording in respect of the work
  • To make any translation of the work
  • To make any adaptation of the work.

Therefore, a movie adaptation of a book cannot be made without the consent of the author. Similarly, translation also infringes copyright as they are essentially a reproduction of someone’s original work for monetary reasons. Raising eyebrows, this has given heat to the recent discussions as to whether an existing work when translated into Braille will account to a copyright infringement or not?

CAN BRAILLE INFRINGE COPYRIGHT?

The questions which prompt in mind are:

  1. What is Braille-translation or transliteration?

Braille is a palpable reading and writing system used by blind and visually impaired people. Represented by the patterns of raised dots that one can feel with their fingertips, it enables the visually impaired to study, regardless of the language and is hence acting as a universal code for all the languages.

Translation implies the conversion from the original language to a different alternate language. Since Braille is not a language, the term translation cannot be used in this context. Taking an example, if we convert “Bhagwan”( in Hindi) to Braille, the output cannot be regarded a  translation as it remains in Hindi and does not feature conversation into any other language such as English. Therefore, such conversion is not considered as a translation and is instead termed as a transliteration. This way, Braille does not violate section 14(a)(v) of the copyright act, 1957 and hence such conversion shall not attract infringement charges.

  1. Does conversion of literary work into Braille come under the scope of adaptation and reproduction?

Adaptation involves the preparation of a new work in the same or different form, based upon an already existing work involving re-arrangement or alteration of the same. If literary work is converted into Braille, it will lead to the violation of rights under section 14(a)(vi).

Will conversion of literary work into Braille lead to reproduction of work under section 14(a)(i)?

Interpretation of ‘reproduction of work’ is debatable and the conversion of literary work into the six-dot Braille code will solely, and exclusively depend upon this interpretation. Braille is technically sticking to the contents, but for expression to be categorized as reproduction, conversion may remain true to content or expression or both. The new cause (zb) added to section 52(1) of the copyright act, 2013 provides for fair use of the work for the benefit of the disabled; facilitates adaptation, reproduction, issue of copies or communication to the public of any work in an accessible format.

Since Braille is a part of accessible format, section 52(1)(zb) suggests that the expression “adaptation, reproduction and communication to the public” can be used with respect to it hence, generating the clarity  on  Braille fitting into the scope of adaptation and reproduction.

Whether Braille can cause copyright infringement?

The district court in Authors’ Guild v. Hathitrust, 2013 U.S. Dist. LEXIS 22370, (S.D.N.Y. 2013), had held that the digitization of millions of books made available to people with disabilities was a transformative use, even though each of the books’ contents was reproduced in their entirety and without any content modification. Should the court of appeals affirm this holding, the court would be indicating that there need not be any kind of expressive transformation in the copyrighted works and the mere putting of the copyrighted works to a different purpose from that which the copyright owners intended shall be considered.

In Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, (1985), the Supreme Court held that the act of the news magazine, The Nation, “scooping” portions of President Gerald Ford’s unpublished memoirs, just weeks before its authorized publication in a rival magazine amounted to copyright infringement. The court held that the fair use defense did not apply to The Nation’s actions. The court noted that “[every] commercial use of copyrighted material is presumptively an unfair exploitation of the monopoly privilege that belongs to the owner of the copyright.” Furthermore, the court explained that “[t]he crux of the profit/nonprofit distinction is not whether the sole motive of the use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material without paying the customary price.”

Analyzing the above judgments, we may conclude that the conversion of literary work into Braille will be covered under copyright infringement if the proper license is not taken.

EMERGING TRENDS OF IP: COPYRIGHT AND TATTOOS

Copyright is an exclusive legal right given to the creator on his tangible work that entitles him to recreate, reproduce or publish the work for monetary gains or otherwise and also prevents someone else from doing the same. A creator can protect his original work of authorship including literary, dramatic, musical and artistic work.

The issue of the copyrightable nature of tattoos gained attention because of the 2011 movie, Hangover Part II. One of the characters of the movie had a replica of the famous Mike Tyson face tattoo. The Tattoo artist had already registered the design with the United States Copyright Office and thus, sued Warner Bros. for copyright infringement.

Even though the parties, later on, settled the case with confidential terms and agreements, it raised many questions.

The questions being:

Are tattoos copyrightable?

The right of ownership?

What amounts to infringement?

  1. Are tattoos copyrightable?

As mentioned above, all the original work of authorship is protected by copyright and no international convention or the Indian Copyright Act, 1957 explicitly excludes tattoos. Thus, tattoos are copyrightable and hence many tattoo artists are getting their original designs copyrighted.

  1. Right of ownership?

The second question involved is who would be the owner of the copyright, the tattoo designer or the person on whose body the tattoo is engraved?

The U.S Copyright law protects the original work of authorship and thus the right of ownership of tattoo rest on the tattoo designer.

Most legal scholars agree that a tattoo artist offers his client an implied license to display the copyrighted work, but that license does not necessarily include all of the rights afforded under copyright laws. The client may not have the right to make reproductions or derivatives of the tattoo without the artist’s permission.[1]

In the UK too, if the person is getting a tattoo that is not his original design, the ownership would lie with the tattoo designer with no provision of “fair defense” to rely on.

In India, under Section 17 of the Indian Copyright Act, 1957 the first owner of the copyright is the author of the work (in this case the tattoo artist).

However, the law regarding ownership of copyright is not definite and still in it is primitive stage. This is primarily because there is no statute or judgment to seek guidance.

  1. What amounts to infringement?

In case of Warner Bros. even though no judgment was passed, in her comments, Judge Perry supported the rights of tattoo artist and stated that a tattoo can be subject to copyright if it   an original work of authorship. She also refused to accept Warner Bros. strong contention claiming the use of tattoo as a parody. According to her, the tattoo depictedan exact replica and thus cannot be called a parody just because it was featured in a comic film.

Though it may fall in the category of fair use in case of private users, the usage becomes commercial when replicated by a company or when the design is worn by a celebrity, and thus, may lead to infringement.

CONCLUSION

The law regarding tattoos and their copyright is still ambiguous. Till date, all the high profile cases regarding the issue have been settled out of court. Thus, initiating the conversation but leaving everybody without any definite conclusion.

In a time where IP rights are getting recognized and artists are given due credit for their work, there is no reason to exclude tattoo artists from enjoying the privilege of these acts. Many tattoo artists are getting their original work registered, but due to the lack of specific legal guidelines, the extent of its implementation remains questionable.

[http://www.jetlaw.org/2017/09/22/your-skin-my-copyright-who-owns-the-copyright-to-tattoos/