INTRODUCTION
Copyright is a form of intellectual property safeguard provided to creators in India, aimed at protecting the broad spectrum of creative works, spanning from machine-readable mediums to dramatic, musical, and artistic compositions, as well as cinematographic films and sound recordings. The legal framework governing this protection in India is the Copyright Act of 1957. Within this legislation, Section 13 the protection granted to creators, encompassing literary, dramatic, musical, artistic works, cinematographic films, and sound recordings.
For instance, literary works such as books and computer programs are protected under this Act. Copyright, fundamentally, grants a bundles of rights upon the owner of the creation, which can be utilized solely by the creator or those authorized by them. These rights are twofold: economic rights and moral rights. Economic rights pertain to the commercial misuse of the work, including reproduction, distribution, public performance, and adaptation. Moral rights, on the other hand, encompass non-economic aspects, such as the right to attribution and the right to integrity, ensuring that the creator’s reputation and artistic vision are preserved.
This article delves into the detailing of copyright protection, particularly focusing on its application to the creators of computer programs, including video games and their characters. Additionally, it explores the legal aspects for protecting the fictional characters, citing relevant cases to clarify the dynamics of legal principal in this domain. Through an in-depth analysis, this article seeks to provide a comprehensive understanding of the legal safeguards available to creators in the realm of intellectual property rights.
Fictional Character Protection in Indian Copyright Law:
Ever since mobile phones is all over, our attraction to captivating video games and their colorful characters has only increased, captivating people of all ages. Whether on smartphones, computers, or gaming consoles, the charm of these games knows no bounds. The gaming industry isn’t just about entertainment—it’s a significant contributor to the GDP, generating substantial revenue and creating numerous job opportunities in design, coding, marketing, and customer service. While we get lost in the worlds of these games, we often wonder the origins of the characters and the legal protections they may have. Are the creators’ ideas behind these characters shielded, Are there specific laws ensuring that creators receive both right and protection for their imaginative work? The answer to all these question with respect to the Indian laws that there is no explicit framework regarding the protection of these character however section 13 of Copyright Act 1957 can be expanded and can be taken into consideration. However there is no mention of the fictions character explicitly in the section either but it cover the wide range of works for copyright Works in which copyright subsists.—
Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—
(a) Original literary, dramatic, musical and artistic works;
(b) Cinematograph films; and
(c) Sound recording. [1]
Here the character building work can be protected under section 13 but in shadow of artistic work not as protection specifically fictional character or video character copyright protection. There were instances during the court verdict which established the fictional character just as expression, in the case V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd. on 7 December, 1987[2] in this case the court ,The Hon’ble Supreme Court held that just a fictional character cannot be copyrighted as its mere representation of an idea but the expression of that character in a literary or as artistic work can be protected under copyright law. V.T. Thomas was granted copyright protection for the expression of the character “Maya” as mentioned in his comic strip. This case established that creators have the right to protect the expression of their fictional characters under Indian copyright law.
Another case Star India Private Limited vs Leo Burnett (India) Private Limited on 24 September, 2002[3] in this case the court considered that whether or not fictional character to be included under copyright law. The Court upheld this while it wasn’t specifically mentioned about the perquisites for including of fictional character but it can be covered in copyright creator’s work. The court opined, “The characters to be merchandised must have gained some public recognition, that is, achieved a form of an independent life and public recognition for itself independently of the original product or independently of the milieu/area in which it appears.”[4]
As the characters formation and its copyright indirectly falls in the creation mentioned in section 13 of the copyright act 1957. Section 14 underline that it is the exclusive right of the author to do or authorize the doing of the acts provided thereunder and also it mentions that the rights are classified on the basis of their nature.
As per section 14(2) the programs (coding for the characters) may also be protected under the copyright law in case of the computer programs the owner can sell or give on commercial rental or offer for sale or for commercial rental any copy of the program.
As per section 14(1) the literary, dramatic or musical work, not being a computer programmed works the copyright owner have the right to reproduce, circulate the copies, perform his/her work in public, make a cinematograph films, translation of the work, adaptation of the work.
The fictional character work for video games can be indirectly categorized under both sub-section 1 and 2 of the section 14 of copyright act 1957 as it falls under the ambit of computer programs and also in the artistic work, This provide bundles of right to the these creators to avail for their creation.
[1] Union of India – Section
Section 13 in The Copyright Act, 1957, https://indiankanoon.org/doc/4010217/, last viewed on 13/05/2024.
[2] Kerala High Court V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd. on 7 December, 1987, https://indiankanoon.org/doc/1514026/, last viewed on 13/05/2024.
[3] Star India Private Limited vs Leo Burnett (India) Private Limited on 24 September, 2002, Author: F.I. Rebello, https://indiankanoon.org/doc/1271015/, last viewed on 13/05/2024
[4]Copyright Protection of Fictional Characters, https://www.iiprd.com/copyright-protection-of-fictional-characters/#:~:text=There%20is%20no%20explicit%20legislation,the%20Copyright%20Act%20of%201957, last viewed on 13-05-2024.
