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Copyright: Ownership and Assignment of Rights

Copyright: Ownership and Assignment of Rights
Copyright, a unique intellectual property meant for the creative brothers and sisters around the world isres incorporalis.In that sense, it has no tangible existence but is a proprietary right and can be disposed of.
In modern life, every individual is aware of the concept of Copyright because of the expansion of media and communication throughout the world. Today’s world has no shortage of ideas, thoughts, modes of expression, and its distribution, which the world media has upheld through the gift of technology coupled with a wider scope of communication and share. This very thing has directed out attention towards the creative world, their rights and obligations, along with their grievances in the form of disputes faced by the creators. The Copyright Act, 1957 as amended in 2012 is the current vehicle to settle and guide the creators towards betterment and give them some pecuniary opportunities so that they are further encouraged to bless the world with their creativity.

A copyright assignment is when the copyright holder transfers ownership of the copyright to another person or organization.

Implication of 1977 judgment by Supreme Court:
Section 2(d) of the Copyright Act, 1957 states that in relation to a cinematography film or sound recording, it is the producer who is the sole author of the work. Reading section 17 along with this, it becomes clear that the producer is the first owner of the copyrighted work. It leaves no doubt that it is he who solely has all the rights and thus only he can assign or transfer it. The lyricist, composer, artists, script-writer, even the director are appointed by him and thus he also holds the copyright being the employer since the work has been created during the course of the employment. The Director, though being the brain behind the film, does not hold any right whatsoever on the movie other than the moral rights. He is not a performer within the meaning of section 2(qq) and thus cannot claim rights u/s 38 of the Act. In fact, as per section 38(4), once a performer has consented to the incorporation of his performance in a cinematograph film, all rights u/s 38 are denied to him.

The lyricist or the composer of the song receives no royalty once the song has been incorporated in a cinematograph film. This is the position subsequent to the decision of the Hon’ble Supreme Court in its landmark judgment Indian Performing Rights Society Ltd. v. Eastern India Motion Pictures Association (IPRS Case).In the afore-mentioned matter the Copyright Board initially decided that composers and lyricists retained copyright in their musical works incorporated as sound tracks in cinematograph films and thus can collect fees, royalties and charges with respect to those films. On appeal, the High Court set aside the decision of the Board. Finally, the Supreme Court held that interpreting section 17(b) and (c) in terms of section 13(4) would mean that the rights of the music composer and lyricist are defeated by virtue of the producer becoming the first owner of the copyright. If the author of a lyric or musical work authorizes a film producer to make a cinematographic film on his composition, he cannot later claim copyright infringement. According to proviso (b), a person who commissions the creation of any of the following works – a photograph, a painting, a portrait, an engraving or a cinematographic film, owns the copyright in the resulting work. Similarly, according to proviso (c), any work created during the course of employment will be owned by the employer, unless otherwise provided for in the contract. In the both instances the aim of the law is to protect the risk taker who has invested in the creation of the work.

Implication of Copyright amendment Act 2012?
As a result of this amendment, the authors would now own their rights in the music and lyrics even if they created for the purpose of a cinematograph film. Once the synchronization rights in the music have been licensed to the producers of the cinematograph film, the author will continue to own the remaining rights such as the public performance rights in the music and lyrics.
The amendments strengthens the rights of authors by four amendments:
1. It sought to provide the authors in the music industry, with a right to inalienable, mandatory royalty sharing.
2. It prohibited contracts which forced authors license away their rights for even future technologies.
3. The amendments provided authors to retain inalienable mandatory royalty sharing even after the copyright is licensed away.
4. It sought to re-establish control of authors over the copyright societies.
Assignment of Rights:
Under Section 18(1)a second proviso has been inserted. It provides that no such assignments shall apply to any mode of exploitation that did not exist or was not known in commercial use when the assignment was made.It amply clear that such an assignment will not extend to those mediums or modes of exploitation which did not exist at the time of the assignment. Modes of exploitation constantly keep changing due to scientific developments. As in, in the earlier days there used to be only video cassette recorders which were played and now there is MP3 players, iPods and other music players that exist. Similarly, we cannot foresee the technological developments that are yet to come and therefore, the assignment of copyright that is made today will only cover those modes of exploitation that are available today.

Section 19relates to the mode of assignment.Three clauses have been added with respect to assignment to Section 19 which basically says that royalty has to be paid to the authors whose work has been exploited in a cinematographic film other than by way of exhibition of the film in a cinema hall. This simply means that the authors are entitled to the subsequent royalties which may arise in the course of further exploitation of the film which includes their work. For example, they will also be entitled to royalty for satellite right, home video, internet right etc. This again strengthens the position of the authors of the work are the actual owners of anything apart from their work in the cinematographic film. The second clause that has been added is for sound recording and is the same as above.

Section 19Arelates to disputes with respect to assignment of copyright. This section provides that on receipt of a complaint from an aggrieved party, the Copyright Board may hold inquiry and pass orders as it may deem fit, including an order for the recovery of any royalty payable. The second proviso is amended to provide that pending disposal of an application for revocation of assignment, the Copyright Board may pass any order as it deems fit regarding implementation of the terms and conditions of assignment.

In one of the first decisions of its kind, the Division Bench of the Hon’ble Madras High Court in the case ofThiagarajan Kumararajav. Capital Film Works (India) Pvt. Ltd. & Anr. [See Endnote. 1]firstlyheld that “dubbing” of a cinematograph film does not constitute translation and instead falls within the ambit of the expression ‘communication to the public’ as defined under Section 2(ff) of the Copyright Act, 1957 (“Act”) and thus the right to dub is the exclusive right of the producer of a cinematograph film by virtue of Section 14(d) of the Act.Secondlyin the facts of the present case since there was no assignment of rights in the script of the cinematograph film in accordance with the requirements underSection 19of the Act, the rights in the script continue to vest in the author of the script and does not stand assigned to the producer of the film merely on the basis of a budget sheet that adverts to the consideration paid by the producer to the author of the script towards directorial services rendered (the author was also the Director of the film) for the cinematograph film. It was accordingly held that the right to remake a cinematograph film or to make versions which are substantially similar to the original cinematograph film vests with the author of the script and said right does not constitute the producer’s right to copy a film or the right to communicate a film to the public under Section 14(d) of the Act.

The instant decision of the Division Bench of the Madras High Court provides the much needed interpretation of the rights of persons under the Copyright Act, 1957 in respect of a cinematograph film. Specifically, the instant decision comprehensively addresses the scope of the terms “dubbing” and “remakes” in the context of cinematograph films and clearly delineates the persons entitled to the right to dub and the right to undertake re-makes of films and the ambit of the said rights under the Copyright Act, 1957. This decision will go a long way in resolving many copyright disputes within the film industry such as that of the instant case.

Necessity of Assignment in both the cases.
A creator of any work has the right to claim authorship of the work and claim damages in case of any distortion, mutilation or modification caused to his work and such an act should have been done before the expiration of the term of assignment is such an act will cause harm to his goodwill. It is to be noted that moral rights are independent of the author’s copyright and moral rights remain with the author even if he has assigned his copyright.
So what should be learnt from the recent news on various copyright assignment issues is that while assigning your rights, it is rather important that you clearly lay down the specific right which you are assigning in order to eliminate the chances of confusion being caused. The amendment of 2012 has played a very important role in strengthening the earlier weak position of authors of works with respect to assignments. Because if someone wants to benefit from their own labour and skill, they should be able to do so without constantly fearing of getting crushed by the giants.

Assumption of Ownership
Ownership of copyright as per 1977 Judgment.

The provisions of acquiring copyright ownership are defined under Section 17 of the Act. The right of ownership is available only if one qualifies the provision of this Act. There is no other remedy in other laws prevailing in India to counter the violation of copyright ownership.

The nationality of the person is the important factor to get the right of the copyright. The section 13(2) provides that-
(1) In case of published work, the work must be published in India or when published outside India, the author must be citizen of India at the date of publication or if dead at the time of his death.

(2) Section 7 of the copyright Act provides that the author in the case of unpublished work, at the time of making of an unpublished work must be citizen of India or domiciled in India where the making of an unpublished work is extended over a considerable period.

(3) In the case of architectural work the work must be situated in India.

The international organization and the citizen of other countries also get the protection of copyright in India but it is subject to the certain condition and they are not per se qualified for the protection.

According to Section 17 of the Copyrights Act, 1957 the first owner of copyright is defined as under:
Subject to the provisions of this Act, the author of a work shall be the owner of copyright therein. Section 17 statutorily recognizes the author of the work to be the first owner of the copyright. The author is defined under the Act for various works, which come under the law of copyright.

However, this provision is subject to certain exceptions. For instance Section17 (a) provides that where a work is made by the author in the course of his employment by the proprietor of a newspaper, magazine or a periodical under a contract of service or apprenticeship for the purpose of publication in a newspaper, magazine or periodical, the said proprietor, in the absence of any agreement to the contrary will be the first owner of the copyright in the work in so far as it relates to the publication of the work in any newspaper, magazine or similar periodical or to the publication of the work for the purpose of being so published. Except in such cases, the author will be the first owner of the copyright in the work. In Thomas v. Manorama, it was held that in the case of termination of the employment, the employee is entitled to the ownership of copyright in the works created subsequently and the former employer has no copyright over the subsequent work so created. The copyright in a work done by an employee on his own time and not in the course of his employment belongs to him.

Section 17(b) provides that where a photograph is taken or a painting or a portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person, in the absence of any agreement to the contrary, shall, be the first owner of the copyright therein. In Chidambare v. Renga, where a person rests under an obligation to do something, and in discharge of such obligation, he transfer a certain interests, such transfer is for valuable consideration.

Section 17 (c) provides that in the case of work made in course of the author's employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein. An author may create a work independently, or he may create a work under a contract of service or contract for service. Where a man employs another to do work for him under his control, so that he can direct the time when the work shall be done the means to be adopted to bring about the end, and the method in which the work shall be arrived on, then the contract is contract of service. If, on the other hand, a man employs another to do certain work but leaves it to that other to decide how that work shall be done. What step shall be taken to produce that desired effect, and then it is a contract for service. In Beloff v. Pressdram, it was held that the true test is whether on the one hand the employee is employed is part of business and his work is integral part of the business, or whether his work is not integrated into the business but is only accessory to it or the work done by him in business on his own account. In the former case it is a contract of service and in the latter a contract for service.

Section 17(cc) provides that in case of any address or speech delivered in public, the person who has delivered such address or speech such address or if such person delivered such address or speech on behalf of any other person, such other person shall be the first owner of the copyright therein notwithstanding that the person who delivers such address or speech, or, as the case may be, the person on whose behalf such address or speech is delivered, is employed by any other person who arranges such address or speech or on whose behalf or premises such address or speech is delivered;

Section 17(d) provides that in the case of a government work, the government shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein;

Section 17(dd) states that 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, in the absence of agreement to the contrary, be the first owner of the copyright therein;

Section 17(e) provides that in the case of a work to which the provisions of section 41 apply, the international organization concerned shall be the first owner of the copyright therein.

For understanding the concept of ownership under this clause one have to look to the section 41 of the Act. Which says where any work is made or first published by or under the direction or control of any organization to which this section applies, and there would, apart from this section, be no copyright in the work in India in the time of the making or, as the case may be, of the first publication thereof, and either:
(1) The work is published as aforesaid in pursuance of an agreement in that behalf with the author, being an agreement which does not reserve to the author copyright, if any, in the work, or
(2) Under section 17 any copyright in the work would belong to the organization.

Ownership of copyright as per amendment 2012

In section 17 of the principal Act, in clause (e), the following proviso shall be inserted at the end, namely:
Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of section 13.

Delhi High Court passed an order in the case ofNeetu Singh v. Rajiv Saumitraand clarifies that when the ownership of copyright is disputed between an employer and an employee – it is theterms of employmentof the employee that have 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.

Bibliography
https://iiprd.wordpress.com/2012/05/19/the-copyright-amendment-bill-2011-proposed-impact-on-the-film-industry-in-india/
https://www.bananaip.com/ip-news-center/mode-assignment-licenses-copyright-assignment-licenses-part-ii
https://www.newmediarights.org/book/what_c

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