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
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
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
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