Advertising and copyright are the important part of over all Marketing plan of almost every organisation that provides a product or service to the public. Concurrently it is said that both Advertisement and copyright are the two sides of the same coin. Presently, internet is a great force for democracy , industry ,the speed of information and for free speech. It is also a breeding ground  for plagiarism, copyright infringement , and libel. Advertisement in india right away showing tremendous change from the past few years . Copyright Act are acting as a shield to creative , artistic and innovative ideas of the people through copyright infringement.

INTRODUCTION:-

Advertising is a powerful communication force and a vital marketing tool, helping to sell goods, services,images,and ideas through channel of information and persuasion . John E.kennedy who was a copy writer defined advertising as “Salesmanship in print” which pinpoint that the terminal objective of the advertising is to sell. It is a paid form of non -personal presentation and promotion of ideas , goods or services by an identified sponsors .

Literacy and artistic creation is a unique features of human beings . This intellectual creativity has been recognised and protected by the law in the form of copyright. Copyright is an  exclusive right  given by law for a certain term to an author ,composer, artist etc. to perform ,print, publish and sell copies of his original work. The primary function of the copyright law is to protect from annexation by other people of fruit’s of man’s work. From Berne Convention ,1886 to TRIP’s agreement of 1995 the international law on copyright has been crystalized on sound footing. Since india has been member of various Intentional agreements including the TRIP’s the law on copyright has been revised and brought in conformity with TRIP’s agreement. Copyright includes some basic features for Advertisements to be  incorporate under Copyright Act – a) The work must be original ,b) The work must not have been common place that is in the public domain, c) copyright must exists in expression of ideas and not on mere ideas ,d) The work must involve labour ,skill and capital . And thus the Advertisement can be protected under section 13 of the copyright Act,1957.

COPYRIGHT ISSUES IN ADVERTISING:-

The Advertising Industry has made rapid strides specially since the early nineties.The policy  of economic liberalisation and growth of economy have largely been contributory factors ,apart from technological advances . The Advertising Industry has been frequently criticised for putting out misleading or exaggerated claims in respect of products ,goods and services advertised . It has also been perceived as guilty of glorifying certain habits or tendencies regarded as undesirable, an encouraging consumerist culture. The Advertising Industry operates within strict federal regulations and is monitored by Federal Trade Commission , Advertising Standards Council of India (ASCI) which is a umbrella trade body of advertising agencies in the country that drew up a code of Self -Regulation and (AAAI)  Advertising Agencies Association of India. At present it  protected by trademark law and copyright law to some extent. Copyright laws assure the protection of interest and original work who labours to produce creative Advertisement maintaining all the ethics and codes of Advertisement But with the growing business ,the minimum level of creativity required for copyright protection is very low because of the unethical codes of advertising. The advertisers and the advertising agencies is likely to produce more misleading , false and defamatory Advertisement  . It basically degrades the rival’s product or substitute product and it is totally against the national and public interest. For example alcohol advertisement is banned  on broadcast media and doesn’t come under copyright act but still we can see that manufacturers of alcohol advertising soda to keep the name afresh in the minds of consumer. Also tobacco Advertisement is banned from copyright act but in reality, the advertisers release very colourful and catchy advertisements of cigarettes that give an impression, especially to the youth that smoking cigarettes is indeed graceful. False claim , exaggerate claim , unverified claim of advertising is also acts a great copyright issues.

 Most Advertisement and creative elements are protected by copyright for a lengthy term.Some advertiser may spend less money on their Advertisement ,if they have no copyright protection ,or they may focus on creating information advertising that is difficult to copy because it emphasis distinguishing product characteristics or the advertiser’s brand name, but effective advertisement will be created because it will help in sell products and not on collecting royalties from licencing their commercial or print advertisement . If the image, language or other expression used in new advertisement are two similar to existing advertisement ,the second advertiser and its advertising agencies may be sued for copyright infringement.  It was seen in Kolkata Knight Riders vs Indian Performing Rights Society that a petition was filed against KKR by IPRS on may 14th 2008 , in favour of copyright Infringement for playing 14 popular songs of Bollywood without its permission during the IPL matches at Eden garden. 

• In PepsiCo inc. vs Hindustan coca cola the plaintiff alleged that the slogan “ yeh dil maange more” registered under Copyright Act has been used by defendant in their advertisement violated the copyright of plaintiff . But the court held that advertising slogans were prima facie not protected under copyright act. They could however qualify protection under trademark act.In addition to copyright issues, trademark rights should be taken into account when dealing with advertising

• Apple inc. vs Samsung electronics  which was the famous case regarding the design of smart phones and tablets computer. Apple brought an patent infringement suits against the Samsung and was later came to be known as smart phone patent’s war case. 

Copyright rule the entertainment industry all around the world, creating a space for artists to explore their talents and earn for them .For example- if a movie is made by adopting a story from a book, both the creator (author of the book) and the person who makes the movie both will have their exclusive rights for their individual work. 

1. In maple and co vs. junior army and navy stores case ,an illustrated catalogue for Advertisement which was not fir sale was held to be a book and was a matter lf copyright under literacy work .

2. In  associated electronics vs m/s sharp tool an electrical goods manufacturing company bought an action against the sharp tool .The appellants had the trademark of ‘sharp’ and they claimed a copyright interest in all their advertisement with the artistic work of sharp registered as a trademark under the act. But the court denied to copyright Infringement only to a mere word.

3. In case of Rc product’s Ltd vs S. C Johnson ltd where the tv commercial was a copy of another one, and therefore the respondent filed a suit for Infringement of copyright.

4. In Hindustan Machines vs Royal Electrical Appliances the plaintiff in this case was using a logo script, Maharaja , claiming an original artistic work under sec 2(c ) of the copyright act .Later the defandent adopted the trade mark Royal maharaja for mixer grinder with logo script , which was exactly like the plaintiff’s mark .The court in this case bought an action against the copyright Infringement.

CONCLUSION:-

Copyright is a wing of Intellectual Property Rights and act as a exclusive legal right given by the constitution to the creator on his creation. Advertisements are basically the common target for copyright Infringement cases. With the ever growing influence of Advertisement in our society and the rapidly changing trends in the industry ,the current system of regulatory bodies is no longer sufficient to standardize the Advertising sectors.  The advantages of Advertisement can be protected ,if released under the Copyright Act there would be a definite move towards the inclusion of Advertisement device in near future.

Footnotes:-

  2001 PTC 699 (del)

  (1839) 21 CRB 369

  AIR 1991 KANT 406 at 412

  261 PR 98(FCA)

  1998 PTC(19)685

REFERENCES:-

  https://adage.com/article/special-report-the-advertising-century/john-e-kennedy/140216

  https://www.financialexpress.com/brandwagon/asci-investigates-408-advertisements-for-misleading-claims/1874111/

  www.economictimes.com

  https://ballotpedia.org/Samsung_Electronics_v._Apple