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Copyright is a bundle of rights that exist in a tangible work i.e. in a material expression, and existing from the moment, such copyrightable work is created. Though no formalities of a registration process are per se required to avail such rights, it is always advisable to register such work under the Copyright regime, to enhance the value of such work. Such registration also becomes the prima facie evidence of ownership/authorship in case of a dispute.
But a question that may arise as regards the validity of Copyright Registration is if incorrect information is furnished in the Copyright Application and the same is registered- Would such an inaccuracy render the registration invalid since the time of grant of registration? Would a new Copyright Certificate have to be issued for the work if the incorrect/inaccurate particular is amended?
Under the Indian Copyright regime, The Copyright Act,1957 provides for correction of registered copyright under section 49 by an application to the Registrar. It specifies that corrections may be made to the errors in any name, address, or other “particulars” or for correcting any other error which may have arisen therein by accidental slip or omission.
Further, this change in particulars of registered copyrights has been streamlined by the introduction of Form XV by the Copyright Office, wherein the copyright owner may just apply for any change in the particulars provided in the original Copyright Application.
These particulars in the understanding of the author refer to those which are mandatory to be filled out in the statement of particulars in the Copyright Application. What if a correction sought to be made is with regards to an essential particular of the work such as country of first publication or a correction is to be made as to the status of the work from unpublished to published at the time of making such Copyright Application. These corrections would have an effect on the essence of the copyright itself. But there is the inadequacy of an explanation as to what changes/corrections may be made after registration without it affecting the validity of the original registration. There is nothing in the copyright manuals addressing what would be an acceptable change in the registration without negating the registration itself, nor is there any explanation in the statute or the rules. Therefore, it could be understood that any particular may be changed post registration without affecting the validity of the original registration in India, with regard to the discretion of the Registrar and depending upon the facts and circumstances of each case.
With regards to the question in consideration, the US Copyright regime sets a fine example on how to deal with such change in the particulars of the work protected by Copyright Registration owing to inaccuracies in the same and its effect on the original registration. For this purpose, there exists a special type of registration known as Supplementary Registration, which is issued by the US Copyright Office to make such correction or add any additional information to the Basic Registration i.e. is the Copyright Registration. The Supplementary Registration doesn’t replace or cancel the prior registration or the registration number.
This form of registration is applauded by the author for the current scenario as there is a clear delineation of what may be changed and what shall not be changed by such a Supplementary Registration provided clearly in the Compendium of U.S. Copyright Office Practices leaving no place for uncertainty unlike in the Indian context.
Certain particulars that may be corrected/addressed by this form of registration are the author’s citizenship, domicile, or the nation of first publication but the Applicant shall have to furnish an explanation for the same.
Further, Section 17 U.S.C. § 411(b) lays down that inaccuracy shall not affect the registration unless: (1) “the inaccurate information was included on the application . . . with the knowledge that it was inaccurate” and (2) “the inaccuracy of the information, if known, would have caused the Register of Copyrights to refuse registration.”
Thus, clear criteria of considerations to judge the inaccuracies and allow for corrections has been duly added in the statute itself to dispel the probability of numerous conflicting approaches on the issue on a case-to-case basis as may be the situation in India.
Further, on this topic of the question of invalidation of registration due to particulars of the application being inaccurate, the US case Gold Value Int’l Textile v. Sanctuary Clothing, LLC, et al., provides further clarity on the applicability of the above provisions. A case of infringement was brought by Fiesta (Gold Value) against Sanctuary. Sanctuary argued that the copyright registration was not valid as Fiesta has incorrectly filed the application with the subject matter as previously unpublished, but the same was incorrect as Fiesta had sold some of the subject matter as samples, Sanctuary argued that the same was, thus, published. Fiesta pled ignorance of the law as it did not know selling such samples would amount to publishing. District court found copyright registration invalid as ignorance of the law, no excuse. In an appeal to the Ninth Circuit, Court agreed with the invalidation of registration for inaccuracy but not on grounds of ignorance of the law, but held “factual knowledge of such inaccuracy existing ” is important not understanding of law in case of such inaccuracy of particulars in the Application.
The Ninth Circuit Court held, as a legal matter, though, the inclusion of some inaccurate information in a copyright application does not automatically render the registration invalid, rather, to invalidate copyright based on inaccurate information, the claimant must show both that (1) “the inaccurate information was included on the application with the knowledge that it was inaccurate” and (2) “the inaccuracy of the information if known, would have caused the Register of Copyrights to refuse registration.” 17 U.S.C. § 411(b)(1)
Since Fiesta was aware of the samples sold, it had the factual knowledge of inaccurate information in the application, in presence of such knowledge the plea of inadvertent “ or “good faith mistake” cannot be made. Thus, factual knowledge of inaccuracy proved, registration invalidated.
In light of the above, it would be advisable to refer to the US model as an effective solution to the lacunas in Indian law regarding the correction of particulars of works post Copyright Registration, to set up a uniform approach towards such corrections, and dissipating the doubts that arise due to the current practice of post-registration correction regarding Copyright, as well as streamlining the correction process as there will be a clear demarcation as to what is allowed to be changed and what is not post Copyright Registration.
Compendium of U.S. Copyright Office Practices
Case No. 17-55818 (9th Cir. June 4, 2019) (Steeh, J)