lawyers in India

Right of ownership under Indian copyright law

Written By: Sanjeev Malhotra - F.C.A, F.C.S, A.I.C.W.A.
Copyright Law in India
Legal Service
  • The importance of copyright was recognized only after the invention of printing press, which enabled the large production of books in large quantity practicable. In India the first legislation of its kind, the Indian Copyright Act, was passed in 1914, which was mainly based on the United Kingdom Copyright Act, 1911. During the five decades modern and advance means of communications like broadcasting, litho-photography, television etc., have made roads in the Indian economy. So there was the need of new more powerful law, which can protect the rights of copyright owners or original creators. So new Act was enacted by the parliament of India, which was based on the Berne convention and universal copyright declaration.

    This Act is known as the copyright Act, 1957, which is suitably amended again in the 1999 according to the prevailing situation in the India and around the world. In the field of copyright, India as a signatory to the Berne Convention and the International Copyright Order, 1958, which is now replaced by the International Copyright Order of 1991. It provides the same protection to nationals of member States as its own nationals.

    The States so covered are the Berne Convention signatories, the Universal Copyright Convention countries and the Phonograms Convention countries. Patents and trademarks registered outside the country are protected against infringement in India if they have acquired international reputation and goodwill. The courts often extend the principles of unfair competition or passing off to stop infringement.

    Ownership of copyright

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    (2) Section 7 of the copyright Act provides that the author in the case of unpublished work, at the time of making of an unpublished work must be citizen of India or domiciled in India where the making of an unpublished work is extended over a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

    Section 2(d) defines author, it says "Author" means,-
    (1) In relation to a literary or dramatic work, the author of the work;
    (2) In relation to a music work, the composer;
    (3) In relation to artistic work other than a photograph, the artist;
    (4) In relation to photograph, the person taking the photograph, the artist;
    (5) In relation to a cinematograph film or sound recording, the producer; and
    (6) In relation to any literary, dramatic, musical or artistic work which is computer- generated, the person who causes the work to be created.

    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.

    The services of an independent contractor are hired for creating or doing a work on a given subject. For example, an examiner who prepares question papers for a university or college. As it was held in University of London Press v. University Tutorial Press , the examiner was free to prepare his questions at his convenience so long as they were ready by the appointment for the examinations, and it was left to his skill the syllabus, the book work, and the standard of knowledge to be expected at the matriculation examination, and in view of this aspect of matter, the examiner was not acting under the contract of service but contract for service.

    Thus the distinction between the two is same as that between and an independent contractor. An employee is a person who is subject to the command of his employer as to the manner in which he shall work. In such cases the employer in the absence of a contract to contrary is the first owner of the copyright.

    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;

    The explanation to the Section provides that for the purpose of this clause and section 28A, "public undertaking": means:

    (1) An undertaking owned and controlled by Government; or
    (2) A Government company as defined in section 617 0f the companies Act, 1956; or
    (3) A body corporate established by or under any central, provincial or state Government;

    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,

    There shall, by the virtue of this section, be copyright in that work throughout India. Any organization to which this section applies which at material time had not the legal capacity of a body corporate shall have and be deemed at all material times to have had the algal capacity of a body corporate for the purpose of holding, dealing with, and enforcing copyright and in connection with all legal proceedings related to copyright. The organization to which this section applies are such organizations as the central Government may, by order published in the official Gazette, declare to be organizations of which one or more sovereign powers or Government or governments thereof are members to which it is expedient that this section shall apply.

    Assignment of copyright

    The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright, either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof.

    However, in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

    Where the assignee of a copyright becomes entitled to any right comprised in the copyright, the assignee as respects the rights so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act, as the owner of copyright and the provisions of this Act shall have effect accordingly.

    The expression "assignee" as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.

    Mode of assignment
    No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorized agent.

    Transmission of copyright in manuscript by testamentary disposition

    Where under a bequest a person is entitled to the manuscript of a literary, dramatic or musical work, or to an artistic work, and the work was not published before the death of the testator, the bequest shall, unless the contrary intention is indicated in the testator's will or any codicil thereto, be construed as including the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

    The expression "manuscript" means the original document embodying the work, whether written by hand or not.

    Right of author to relinquish copyright

    The author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed from to the Registrar of Copyrights and thereupon such rights shall, subject to the following conditions, cease to exist from the date of the notice.

    On receipt of a notice, the Registrar of Copyrights shall cause it to be published in the Official Gazette and in such other manner as he may deem fit.

    The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any rights subsisting in favour of any person on the date of the notice.

    The Copyright Act, 1957 is a comprehensive Act. The object of this Act is thou shall not steal. This Act is drafted in tune of English and American laws. This Act safeguards the ownership of unpublished work also in addition to the protection grated to publish work. In the case of unpublished work the author must be a citizen of India or domiciled in India at the time of the creation of the work. Copyright in an architectural work will subsist only if the work is located in India irrespective of the nationality of the author. Ownership of original work is only protected through the statute and common law in India does not offer any remedy for the same. Copyright subsists in the original work the reproduction of the adaptation will be possible only with the consent or license of the copyright owner of the original work. Where the owner of a copyright in an original work licenses another person to arrange or adapt it, for example to base a film script or play upon a book, the copyright in the arrangement then vest in the arranger, who has originated it.

    The author can be reached at: [email protected] / Print This Article

    Copyright laws -  ArticlesTo learn more about copyright laws here are a list of articles:
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