Copyright vs. Trademarks – What Protects What?
The article clears the confusion between copyright and trademarksankan bose
While it may seem amusing to lawyers, Intellectual Property Rights experts and business people who have made concerted efforts to learn the difference between copyright and trademark; the fact remains - most people routinely interchange the usage of these words for different things. For example, it is common to find start-up entrepreneurs thinking it will be doable to protect their companies’ “ideas” or business names through copyright, which, according to them, automatically translates to brand and business protection as a whole.
“Trademarking” the title of a novel, “copyrighting” a cool comic character, a word or a string of words, and casually warning people about holding copyright over an idea discussed in open, are other examples of people being ignorant of the rights copyright and trademark laws individually deal with.
Now that you have an idea that they are separate from each other, discussed below are certain differences to help you distinguish exactly what each form of IPR is and what each of them protects.
At the outset, it is important to note that copyright does not protect ideas, but only the expression of those ideas in a tangible form or a fixed medium. So if you made a painting of a landscape or took a photo of a sunset, then your individual expression of the painting or the photograph will be protected. Others, however, are free to make paintings on landscapes or take photos of sunsets.
In India, copyright law is governed by the Indian Copyright Act, 1957, where section 13 of the Act lists the works in which copyright subsists. Original works of authorship, photographs, sculptures, choreography, architectural works, sound recordings, motion pictures, and dramatic, musical and other creative works are included in the realm of copyright protection.
Rights granted under Copyright Law
In a nutshell, the Indian Copyright Act, 1957 under section 14, grants various exclusive rights to do or to authorize the doing of any of these acts:-
the rights to reproduce the work in any material form;
issue copies of the work to the public;
perform the work in public;
translate and adapt the work or even make a cinematograph film or sound recording in respect of the work;
sale and rental rights (in the case of computer programmes);
make derivative works of the work
sale/hire rights in case of cinematograph films and sound recordings
Words and phrases (such as slogans) however, are not subject to copyright, as emphasized by the Delhi High Court in the 2012 case of Godfrey Phillips India Ltd. vs. Dharampal Satyapal Ltd. & Another.
Usually, the author or creator of the work is the first owner of the copyright; an exception lies, though, where the literary, dramatic or musical work or any work created under a contract of service or apprenticeship. In this case, the employer becomes the first owner of the copyright in the work, unless an agreement to the contrary exists (section 17).
Registration and Term of Copyright
In India, copyright registration is not mandatory, since copyright protection commences the moment a work is created. Registration does not confer any new right and is not a pre-requisite to initiate an action against copyright infringement.
It is however, advisable to register the same since copyright registration certificate can act as a veritable proof of an entry in respect of the work in the Copyright Register as well as give you an edge in a Court of Law.
The term of copyright protection for literary, musical or artistic works (except photographs) in India extends through the lifetime of the author plus 60 years, starting from the year in which the author dies. Where the work has not been published, performed or offered for sale or broadcast during the lifetime of the author, the copyright protection shall continue for a period of 60 years, from the end of the year in which any of these acts are done with respect to the work.
Any mark, symbol, logo, design, brand, slogan, catch phrase, name or a combination of all these elements, that is used to distinguish and identify the source of the goods or services offered by a company as against its rivals in the market, is known as a trademark. In India, trademark law is governed by The Trade Marks Act, 1999.
Where copyright subsists in the creator’s intellectual property (literary and artistic creation) by virtue of its very conception; a lot of initiative, effort and planning needs to go into registering your trademark since it relates to goods and services and has huge economic consequences in the long run. In the absence of trademark registration, rival competitors can ride on the mass reach of your product/service and rob you of your rightful economic gains.
Trademark law exists to protect consumers from getting confused between different brands of goods/services as much as it does to protect your business/enterprise. It prevents other competitors in the market from using words, images, designs, logos or any other feature distinctive of your brand’s reputation and marketability, to sell their products/services.
Registering a Trademark definitely is a riskier ground and needs constant intervention in terms of marketing and advertising the mark to keep its identity fresh in people’s minds. Continuous non-use of a trademark in commerce for a period of 5 years can, in fact, have your trademark suffer dilution or even removal from the records.
Not all marks are accorded trademark protection to the same degree, though, since the strength of a mark is based on its inherent distinctiveness and can make your break your case, in the event you get embroiled in a trademark opposition/infringement case.
Trademarks in India need to be renewed every 10 years by paying the requisite fees, in the absence of which they become liable to be removed from the Register.
Both trademark and copyright grant assignment rights under respective laws, and it may be interesting to note that sometimes they can co-exist in certain works such as designs, logos, shapes, colors, etc.