Intellectual Property Law

Unit 4: Copyright
Copyright
Copyright is the protection of the exclusive right of the
author to perform specific acts, to authorise others
to perform specific acts and to prevent unauthorised
acts over the author’s creative works.

International Protection:
Berne Convention
-administered by the WIPO
-Standards of the Berne Convention has been
incorporated in the TRIPS agreement

Domestic level:
Copyrights Act 2017
Copyright requirements
1. Artistic, literary or scientific work
2. An original creation
3. Fixed in some material form and irrespective
of its mode or form of expression.

Once these requirements have been satisfied,

copyright is automatically created.
Works protected by Copyright
• Article 2 of the Berne Convention
‘literary and artistic works’ as including “every production in the literary,
scientific and artistic domain, whatever may be the mode or form of its
expression.”

Artistic, literary or scientific work includes:

• Literary or textual works of all kinds (including book, pamphlet, poem, film
script…)
• Pictorial, graphic and sculptural works (including illustration, a map, plan
or sketch, works of fine art such as drawing and paintings, a photographic
work…)
• Musical, dramatic and choreographed works (including pantomime,
dramatico-musical work…)
• Sounds recordings (including lecture, sermon or any other address of a
similar nature)
• Computer programs, most websites, and various other digitized works.

Polo Co. Ltd v Dinoo N- Literary or artistic merit of the work is irrelevant
Originality
• Originality can be equated to the degree of skill,
labour and judgment that went into the creation of a
work.
• The work should originate from the author and not
be copied from another source.

Polo Co. Ltd v Dinoo N - the creation of the

original polo player on a horseback design required
that the artist put in skill, judgment and labour. The
work was thus, found to be deserving copyright
Non-Copyrightable subject matter
No protection under Copyright Act shall extend to (a)
any idea, procedure, system, method of operation,
concept, principle, discovery or mere data;
(b) any official text of a legislative, administrative or
legal nature, as well as any official translation
thereof
(c) news of the day or miscellaneous facts having the
character of mere items of press information;
(d) political speeches and speeches delivered in the
course of legal proceedings;
(e) judgment of a court of law or tribunal.
Presumptions
Section 54(a) Copyright Act:
Presumptions
In any action for an alleged infringement of copyright-it shall
be presumed, unless the defendant puts it in issue, that

(i) copyright subsists in the work to which the action relates;

(ii) the plaintiff is the right holder if he claims so to be;
(iii) the person whose name is indicated on an audiovisual work
in the usual manner as being the producer is the producer
of the work

Is the use of the Copyright symbol, “©” necessary?

No. Because there is a presumption
It is no longer required to use this symbol on protected works.
Neighbouring Rights
• The rights of a creative work not connected with
the work's actual author.
• Given to those involved in the production or
transmission of works
• The rights of performers, phonogram producers
and broadcasting organisations
• Neighbouring right holders have exclusive
economic rights over their work.
The rights of the copyright owner
“Copyright” means the economic and moral rights subsisting in
a work

Economic rights
Section 6 Copyright Act
Every author or other owner of copyright shall have the
exclusive right to carry out or to authorise
(a) the reproduction of the work;
(b) the translation of a work;
(c) the adaptation, arrangement or other transformation of a
work, including its cinematographic adaption;
(d) the distribution to the public of the original or a fixed copy
of a work;
(e) the rental of the original or a fixed copy of a work;
(f) the public performance of a work;
(g) the broadcasting of a work;
(h) other forms of communication to the public of a work.
 Moral Rights
Section 7 of he Copyright Act:
Notwithstanding the economic rights of the author and even
after the transfer of the said rights, the author shall have the
moral right
(a) to claim authorship of the work;
(b) to object to any distortion, mutilation or other modification
of, or derogatory action in relation to, the said work, which
would be prejudicial to his honor or reputation.

The moral rights shall, after the death of the author, be

maintained until the expiry of the economic rights.

Moral rights belong to the authors and it exists

independently of the Economic right. Thus, an author can
enjoy moral rights even without having economic right
Exceptions to copyrights
Certain particular acts of exploitation that
usually require the right owner’s permission
may, under circumstances specified in the law,
be carried out without the owner’s permission.
The two basic types of limitations and exceptions
in this category are:
(a) free use, which carries no obligation to
compensate the right owner for the use of the
work without permission; and
(b) non-voluntary (or compulsory) licenses, which
require that compensation be paid to the right
owner for non-authorized exploitation.
a) The private reproduction of a legally obtained
published work in a single copy shall be permitted,
without the authorisation of the author or owner of
copyright, where the reproduction is made by a
natural person for his own personal use.

The permission shall not extend to reproduction —

(a) of a work of architecture in the form of building
or other construction;
(b) in the form of reprography of the whole or of a
substantial part of a book or of a musical work in the
form of notation;
(c) of the whole or of a substantial part of a database
in digital form; and
(d) of a computer programme
b)The quotation from a work that has lawfully
been made available to the public shall be
permitted without authorisation of the author or
other owner of copyright.

The quotation shall be accompanied by an

indication of source and the name of the author.

The quotation is compatible with fair practice

and does not exceed the extent justified by the
purpose
C) The utilisation for scientific research purposes
or by way of illustration for teaching of a work
that has lawfully been made available to the
public.

Such utilisation must be compatible with fair

practice; and must not exceed the extent
justified by the purpose.

d) Any library or archive, whose activities do not

serve direct or indirect commercial gain, may,
without the authorisation of the author or other
owner of copyright, make a copy of a work.
d)The reproduction, broadcasting and other communication to
the public for information purposes on current information,
subject to the obligation to indicate the source and the name
of the author, as far as practicable.

e) The reproduction, in a single copy, or the adaptation of a

computer programme by the lawful owner of a copy of that
computer programme shall be permitted

f) Permitted to reproduce a published work for persons who are

blind, visually impaired or otherwise print disabled in an
alternative manner

g) Any broadcasting organisation may make for the purpose of

its own broadcasts, an ephemeral recording of any work
which it is authorised to broadcast.

h) The importation of a copy of a work, by a physical person, for

his personal purposes
i) A library or archive whose activities do not,
serve commercial gain may, lend to a member of
the public a copy of a work, other than a
computer programme, which is part of the
permanent collection of the library or archive.
Duration of Copyright
The economic and moral rights shall be protected during the lifetime of the
author and for 70 years after his death.

For a work of joint authorship, the economic and moral rights shall be
protected during the life of the last surviving author and for 70 years after
his death.

For an audiovisual work or phonogram, the economic rights shall be

protected for 70 years from the date on which the work was made or first
made available to the public by publication, or by any other means,
whichever date is the latest.

For a work published anonymously or under a pseudonym, the economic

and moral rights shall be protected for 70 years from the date on which the
work was made or first made available to the public,

For a work of applied art, the economic and moral rights shall be protected
for 25 years from the making of the work.
Ownership and transfer of copyright
Transfer of copyright may take one of two forms:
assignment and licensing.

An assignment is a transfer of a property right.

The person to whom the rights are assigned
becomes the new copyright owner

Licensing means that the copyright owner retains

ownership but authorizes a third party to carry out
certain acts covered by the economic rights,
Economic rights shall be assignable in whole
or in part.

Any assignment of an economic right shall be in

writing, signed by the assignor and the
assignee

Any exclusive licence to do an act subject to

authorisation by the owner of copyright, shall be in
writing, signed the licensor and the licensee.

An assignment or licence shall not be deemed to

include any other rights not explicitly referred to
therein.

Assignment shall be limited to the specific use of the

economic right mentioned in the agreement.
Where the assignment of an economic right fails
to mention the time for which it shall operate, it
shall terminate 10 years as from the date of
assignment.

Where the assignment fails to mention any

country in which it may have effect, it shall
only operate in Mauritius.
Alienation of works

Section 8 Copyright Act:

Where an author alienates the original or a copy
of his work, he shall not, unless the contract of
alienation otherwise provides, be deemed to
have —
(a) transferred any economic right;
(b) granted a licence; or
(c) waived the exercise of any moral right.
Agreement regarding future works
Section 13(1) Copyright Act:
Where an author undertakes in writing to grant a
licence, or to assign the economic rights concerning
future works which are not specified in detail, either
party may, on giving not less than one month’s
notice, terminate the agreement not earlier than 3
years after it was signed or such shorter period as
may have been agreed.

The right of termination may not be waived in

advance.
Section 56 Copyright Act- Offences
Any person who without the written authorisation of the
copyright owner or Society –
(i) publishes, distributes, sells or reproduces a work;
(ii) performs a work in public;
(iii) communicates a work to the public;
(iv) broadcasts a work;
(v) makes a derivative work;
(vi) imports otherwise than exclusively for his own private
and personal use, buys, sells, exposes, offers for sale or
hire, or has in his possession in the course of trade,
any copy of a work which constitutes an infringement
of the copyright of its owner, or would constitute such
an infringement if the copy of the work were made in
Mauritius;
(vii)has, in his possession, any copy of a work which
constitutes an infringement;
Any person who without the written authorisation of the
copyright owner or Society manufactures, or imports for
sale or rental, any device or means which is –
(i) specifically designed or adapted to circumvent any
device or means intended to prevent or restrict
reproduction of a work or to impair the quality of any
copy made thereof; or
(ii) susceptible to enable or assist in the reception of an
encrypted program, which is broadcast or otherwise
communicated to the public, by a person who is not
entitled to receive the program;
(iii) has, in his possession in the course of trade any
apparatus, article or thing, knowing that it is to be
used for making infringing copies of a work or for a
purpose referred to in paragraph (b);
(iv) in any other manner contravenes this Act, shall
commit an offence
 Any person who commits an offence shall—
(i) on a first conviction, be liable to a fine not
exceeding 300,000 rupees and to
imprisonment for a term not exceeding 2
years;
(ii) on a second or subsequent offence, be liable to
a fine not exceeding 500,000 rupees and to
imprisonment for a term not exceeding 8
years.

Magistrate of the Intermediate Court shall

have exclusive jurisdiction to try any person at
first instance