Brands and Fakes Web Based Platform: Avoiding Copyright Infringement

Have you ever uploaded an image or a video to a website, only for it to be deleted because of copyright issues? While some areas of copyright law can be complicated enough to cause copyright lawyers sleepless nights, the basics are very simple. Armed with some simple principles, you can save yourself from running afoul of copyright law.

Understand the scope of copyright law. 

It does protect literary works, paintings, photographs, drawings, films, music (and its lyrics), choreography, sculptures and many other things. It generally doesn't protect the underlying ideas, and it does not protect facts. For example, copyright doesn't prevent you from expressing in your own words ideas and facts found in a book or journal you read (but you should always give appropriate credit to the sources in which you found them; it is common courtesy to do so, and not doing so could constitute a violation of the Copyright Act as what you have created may constitute a derivative work pursuant to the Copyright Act, unless you have obtained license or permission from the copyright holder to create the same). It may also constitute plagiarism under state common law.

Don't take anything from the Internet, or anywhere else, because it is almost always copyrighted, by default. 

"I found it on the Internet" is not a defense against copyright infringement; works on the Internet are as copyrightable as any other kind of work. Nor is "it didn't say it was copyrighted." In nearly all jurisdictions and all other Berne Convention signatories, it is not necessary for a work to have an explicit copyright notice for it to be copyrighted. It is also not necessary for copyright in a work to be registered; this simply makes it easier to be compensated in court. Without an explicit dedication to the public domain, assume that it is still under copyright.

Don't confuse copyrights, trademarks, and other forms of "intellectual property."

The term "intellectual property rights" itself, and the kind of thinking it encourages, has led to these very different things being confused with each other. Trademarks, for example, forbid using certain words, marks, symbols, and so on within certain contexts, to protect consumers from misrepresentation. Copyright would not prevent you from, for example, writing some new text editor software and calling it "Microsoft Text Editor", but trademark law would.

Be creative.

If ever you wonder whether a certain action would infringe on the copyright of someone else, the question to ask is: is this a creative work on my count, or am I simply drawing from the creativity of someone else? Lunches, as any economist would tell you, are not free. Some examples:

·         Scanning something yourself does not, by itself, give you a new copyright over anything. You cannot scan a photograph from, say, a magazine and then put it on the Internet; the copyright would still reside with the author of the work. The flip-side of this is that scanning a work which is in the public domain would not, in many jurisdictions, give you the copyright over the resulting scan.

·         Taking a screenshot of a video or a computer program does not generate a new copyright. The copyright in the resulting screenshot would still be held by the copyright holder of the original video or computer program.

·         Some non-creative things are not copyrightable, for example, a plain text logo in a generic font. Neither are simple geometric shapes. But don't rely on this unless you are certain.

Learn about the public domain laws for your jurisdiction. 

"Public domain" is short-hand for "uncopyrighted", not "publicly distributed". A work can be out of copyright due to age, by the nature of authorship, or other reasons.

Don't rely on "fair use" called "fair dealing" in many jurisdictions, fair use is simply a guarantee that copyright laws do not infringe freedom of speech and make critical commentary impossible.

Some uses of text under "fair use" are teaching, critiques, comments, reporting, and research. It permits, for example, limited quoting of copyrighted material. In some jurisdictions, it would allow creating a copy for personal use (such as a backup)^[4]. It is not a blank cheque granting you a right to do anything at all and call it "fair use". Fair use is an extremely complex body of case law; it is often very difficult for non-lawyers to tell in advance whether or not a certain use will be considered fair use in court. If in doubt, seek permission first.

Be wary about writing fiction based on other works. 

It was said above that "ideas cannot be copyrighted". However, fictional characters, story-lines, and settings can be copyrighted (insofar as they are original). This means that fan-fiction, drawings of characters from copyrighted works, and so on are all technically copyright infringements. Sometimes copyright holders turn a blind eye to this sort of thing, but unless it has been explicitly authorised, don't count on this being the case.

WHY TO SPEND ON YOUR BRANDS?

Billions of dollars are spent in building up a Company, marketing its services and advertising its products. However, during a God forbidden lean period, the first question which arises is whether a budget needs to be allocated to the protection of the Company’s own brand. The Brand – a Company’s best and ever non-failing asset; and a brand is well mixed with Intellectual Property Right Solutions emanating from it.

Whether or not a lean period, the aspect of protecting one’s own brand has, in recent times, become a more than top priority. While a few wise companies and business owners spend a fortune on protecting their brand, most others do not realize and spend too little or none in this regard.

Why protect or spend money in safeguarding your brand? The answer is quite simple. Allow your brand to be used by infringers or watch it getting diluted without even raising a finger and you end up loosing your company’s best asset. The one asset which gave you exclusivity in the minds of consumers. Loose your asset and you loose your business. Simple!

The commonly used phrase, ‘IPR compliance’ would necessarily mean procuring, defending and safeguarding a brand owner’s intellectual property rights in its brand. So, how and who does this work?

Brand protection services in India is an emerging and potential market and involves IPR protection and compliance. While a few brand owners and companies have their own in-house team engaged in safeguarding their brand, most other companies and brand owners have chosen to engage specialists who provide brand protection services in India. These specialists have their own team of experts who provide comprehensive solutions to your IPR Compliance needs and ensure that your brand is protected for all times to come.

India being a developing market, it is good trend to note that everyday new business owners emerge with their brands and existing companies and brand owners expand their business. But, truth being said, for that same reason, the number of infringers has also been on a steady rise; and along with that number, the various and ever-increasing unique types of infringements in the different fields of businesses and enterprises.

Needless to say, unless you are a billion dollar enterprise which can afford to have its own in-house team, the best way to proceed would be to hire these market specialists to safeguard your brand and the intellectual property rights associated with them. Money spent on this, I would say, is the only money well spent.