Ownership of Copyright and Rights of Copyright Owners in India: Lawcirca

Ownership of Copyright and Rights of Copyright Owners in India

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INTRODUCTION

The provisions of the Indian Copyright Act, 1957 and the Copyright Rules, 1958 as amended from time to time and applicable as on today, governs the subject of copyright law in India. The history of copyright law in India can be traced back to colonial times. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. Under the Constitution of India, the matter of Copyright fall under Entry 49 of List-11 which is the Union list and it is a subject of Central law. Thus, the parliament has the exclusive right to frame laws on this subject.

Copyright is a bundle of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings.2 The rights provided under Copyright law include the rights of reproduction of the work, communication of the work to the public, adaptation of the work and translation of the work.2 The scope and duration of protection provided under copyright law vary with the nature of the protected work.

According to the Copyright Act, 19573, copyright means the exclusive right, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely Literary works other than computer Programs, Musical Works, Artistic Works, Cinematography Films, Sound Recording, and Computer Programs, tables & Compilations.

The object of the Act is to bring an Act to amend and consolidate the law relating to copyright.4 Also, to bring an act in conformity with two WIPO treaties, namely, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (“WPPT”). Other functions of the Act include establishing provisions to protect the Music and Film Industry and address its concerns; to address the concerns of the physically disabled and to protect the interests of the author of any work; and enforcement of rights. The basic premise to be protected by copyright is originality. The work should be original and not infringing any other copyrighted material to enjoy one’s copyright status under the Copyright Act.

OWNERSHIP OF COPYRIGHT

Copyright is one of the Intellectual Property Rights. In India, copyright is sui generis right. It is considered a natural right as it is automatically granted to the creator of the original literary (including computer programs), dramatic, musical and artistic works; cinematographic films; and sound recordings. Registration of work is not mandatory for availing the protection under the Copyright Act, 1957. The Apex Court in R.G. Anand’s5 Case held that registration of works is not mandatory for availing copyright protection.

In the case of Sunil Agarwal Vs Kumkum Tandon,6 it was observed that Section 18 of the Copyright Act, 1957 confers ownership rights in copyright on the assignment.

Generally, the creator or the author of the work is the owner of the work and therefore entitled to get the copyright for the work. Where the author of the work is employed by another person, the work belongs to the employer of the author. And where the creation of the works is incidental, but not the purpose, the work belongs to the authors. But in practice, out of the contractual agreement between the employer and the employee, the creation during the course of employment would be belonging to the employer.

According to Section 17 of the Copyright Act, 1957, the author of a work shall be the first owner of the copyright. “Author” means as contained in the Act7, “(i) in relation to a literary or dramatic work, the author of the work; (ii) in relation to a musical work, the composer; (iii) in relation to an artistic work other than a photograph, the artist; (iv) in relation to a photograph, the person taking the photograph; (v) in relation to a cinematograph film or sound recording, the producer; and (vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.”

Hence, we can say that the following are the owners of the copyrights:

  • In musical sound recordings: lyricist, composer, singer, musician and the person or company who produced the sound recording
  • In works by journalists during their employment: in the absence of any agreement to the contrary, the proprietor
  • In works produced for valuable consideration at the instance of another person: in the absence of any agreement to the contrary, the person at whose instance the work is produced

There are certain cases or in other words exceptions to the general rule that the author of a work shall be the first owner of the copyright. These circumstances are enumerated in the Proviso to Section 17 of the Copyright Act.

For instance, in the case8 of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication, the said proprietor shall (in the absence of any agreement to the contrary) be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects, the author shall be the first owner of the copyright in the work. 

V.T. Thomas And Ors. vs Malayala Manorama Co. Ltd.9,

 it was held that in the case of termination of employment, the employee is entitled to the ownership of the copyright in the works created subsequently and the former employer has no copyright over the subsequent work so created. The Hon’ble Delhi High Court in the case of 

American Express Bank Ltd. V. Ms. Priya Puri10 

The court clarified that for American Express to claim copyright over their ex-employee’s work, the bank should have abridged, arranged or done something material in the public domain to claim exclusive rights over it.

Further, in the case11 of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall (in the absence of any agreement to the contrary) be the first owner of the copyright therein. Also, in the case12 of a work made in the course of the author’s employment under a contract of service or apprenticeship, to which the above-mentioned two situations do not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Neetu Singh v. Rajiv Saumitra13

The Hon’ble Delhi High Court via its order confirmed that in a dispute relating to when the ownership of copyright is disputed between an employer and an employee – it is the terms of employment of the employee that has to be looked into. It must be determined that the work was created by the employee as part of the terms of employment for the employer to claim ownership over the same. The case even clarifies what is to be looked into to determine the terms of employment – in the case of a Director, it is any subsisting agreement or the AOA/MOA of the company. This decision could be applied to other forms of employment by simply looking at any agreement between an employer and an employee.14In the case15 of Government work, the Government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Another situation16 was added by the Amendment of 1984 wherein the author of the work shall not be the first owner of the copyright, that is, in the case of a work made or first published by or under the direction or control of any public undertaking, such public undertaking shall be the first owner of the copyright therein. For the purposes of this clause, “public undertaking” means an undertaking owned or controlled by the Government; or a Government company as defined in section 617 of the Companies Act, 1956 or a body corporate established by or under any Central, Provincial or State Act.

Important sections regarding ownership of copyright

According to Section 18 of the Copyright Act, 1957, the owner of the copyright in an existing work may assign to any person the copyright:

  1. either wholly or partially, and
  2. either generally or subject to limitations, and
  3. either for the whole term of the copyright or any part thereof.

Further as contained in Section 19 of the Copyright Act, 1957, such assignment17 of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent. If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.18

RIGHTS OF OWNERS OF THE COPYRIGHT

Statutory rights of the owners of the copyright 

The following19 are the rights listed in the Act in respect of a copyright owner.

  • In the case of literary, dramatic or musical works – the exclusive right to reproduce, including storage in any medium by electronic means, issue copies, public performance, make any film or sound recording in respect of that work, to translate and adapt the work and the right of communication to the public (which is defined widely enough to cover dissemination over the internet).
  • In the case of computer programs – all rights as mentioned for literary works in addition to selling or giving on hire, or offering for sale or hire for commercial rental any copy of the computer program.
  • In the case of artistic works – to reproduce the work in any material form. This may include storing it in any medium by electronic or other means or depicting a two-dimensional work in three dimensions or vice versa. Copyright in an artistic work also includes the exclusive right to communicate the work in public, issue copies of it, include it in a cinematograph film, and translate or adapt the work in any way.
  • In the case of cinematograph films – to make copies of the film (on any medium, electronic or otherwise) including copies in the form of photographs that form a part of the film, sell or give on hire, or offer for sale or hire any copy of the film, to sell, give or offer for sale on commercial rental copies of the film and communicate the film to the public.
  • In the case of sound recordings – to make any other sound recording embodying it on any medium including storing of it on any medium, to sell or give on commercial rental or offer for sale such rental and to communicate the sound recording to the public.

Moral rights of the owners of the copyright 

The author enjoys moral rights independent of copyright, being the right to paternity and integrity, which exists despite the assignment of copyright. However, this does not extend to the adaptation of a computer program for fair dealing purposes. It is also specifically stated that violation of moral rights (specific to the right to integrity) is judged objectively.

Moral rights can be enforced by the legal representatives of the author. The 2012 amendments to the Act provide that a legal representative of an author can exercise both paternity as well as integrity rights in a work. The 2012 amendments also consciously omit the previous co-extensive term of moral rights with copyright by specifically removing the copyright term restriction on a claim for the right to integrity by the legal representative. Moral rights are not assignable (although on general principles as it is a civil right and not a fundamental right under the Indian constitution, moral rights can be waived).

ENDNOTES

1. Schedule 7, List I Entry 49: Patent, Inventions and Design; Copyright, Trade-marks and Merchandise marks.

2. http://www.wipo.int/wipolex/en/text.jsp?file_id=352024 (WIPO Lex)

3. Section 14, the Copyright Act, 1957

4. Preamble, Copyright Act, 1957

5. AIR 1978 SC 1613

6. 1995 II AD(Del)627; 1995(33) DRJ 599

7. Section 2 (d) of the Copyright Act, 1957

8. Clause (a) of the Proviso to Section 17 of the Copyright Act, 1957

9. AIR 1989 Ker 49

10. (2006) III LLJ 540 Del

11. Clause (b) of the Proviso to Section 17 of the Copyright Act, 1957

12. Clause (c) of the Proviso to Section 17 of the Copyright Act, 1957

13. CS(COMM) 935/2016

14.https://spicyip.com/2017/08/delhi-hc-order-clarifies-aspects-of-section-17-of-the-copyright-act.html

15. Clause (d) of the Proviso to Section 17 of the Copyright Act, 1957

16. Clause (dd) of the Proviso to Section 17 of the Copyright Act, 1957

17. Section 19 (1) of the Copyright Act, 1957

18. Section 19 (5) of the Copyright Act, 1957

19.https://www.lexology.com/library/detail.aspx?g=ef8e848b-753c-4eb3-a9e6-198564494f23


Tanvi spare: Lawcirca

Tanvi Sapra

Authors

Tanvi hails from Vivekananda Institute of Professional Studies and spends most of her time reading and researching. Her Interest areas are Property Law, Human Rights Law and Constitutional Law. For any clarifications, feedback, and advice, you can reach us at editor@lawcirca.com

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