An assignment is, in spirit, a transfer of ownership, even if it is partial. The copyright owner in an existing work or the future owner of the copyright in a further work may assign to any person the copyright either wholly or partially, either generally or subject to limitation, either for the whole of copyright or any part thereof. In case the assignment of copyright is for any future work, the assignment will take effect only when the work is in an expressed form and not just an idea.
No one has the right to copy, reproduce, sell, or publish an original work without the permission of the creator. It means that only the owner of the copyright can transfer the ownership of the copyright to a third party. Another important thing to note is that with the assignment of a copyright, the assignee shall also enjoy all the rights related to the copyright of the assigned work.
An assignment has two objectives:
- Where an assignee is concerned, it confers on him the right of exploitation of work for a specified period in the specified territory; and;
- For the assignor, it confers on him the right to receive a royalty on the work assigned.
MODE OF ASSIGNMENT: Section 19 lays down condition of assignment as follows; 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 authorised agent.
- The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.
- The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
- Where the assignee does not exercise the right assigned to him under any of the other sub-sections of this section within period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.
- If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
- If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
- Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994. THE COPYRIGHT (AMENDMENT) ACT ,1994 added new SECTION 19A as follows; REVOCATION OF ASSIGNMENT.
In Saregama India Lid. v. Suresh Jindal,” It was held that the owner of the copyright in a future work may assign the copyright to any person either wholly or partially for the whole of the copyright or any part thereof and once the assignment is made the assignee for the purpose of this Act is treated as the owner of the copyright.
In Deshmukh & Co. (Publishers) Pvt. Ltd. v. Avinash Vishnu Khandekar,” the Bombay High Court observed that assignment of copyright is valid only if it is in writing and signed by the assignor or by his duly authorized agent. There is no prescribed form of assignment. The assignee to whom certain rights have been assigned by the assignor can be restrained by the court having competent jurisdiction. Copyright is not a positive right but is negative right, i.e. the right to stop others from exploiting the work without the copyright owner’s consent or licence. Copyright is kind of personal movable property which can be transferred by assignment etc. transfer inter vivos or by will or by due process of law, i.e. in the event of death of the owner.
REVOCATION OF ASSIGNMENT
Section 19A of the Copyright Act, 1957 provides for the revocation of assignment of copyright. The Appellate Board may, on receipt of a complaint from the assignor and after holding such inquiry as it may deem necessary, revoke such assignment, if the assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor.
In case of a dispute with respect to the assignment of copyright, the Appellate Board may pass a suitable order on receiving a complaint from the aggrieved party and after holding such inquiry as it considers necessary. Such an order may also include an order for the recovery of any royalty payable.
The Appellate Board, however, shall not pass any order to revoke the assignment unless it is satisfied that the terms of assignment are harsh to the assignor in case the assignor is also the author. However, pending the disposal of an application for revocation of assignment, the Appellate Board may pass such order, as it deems fit regarding implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned.
No order of revocation of assignment is to be made within a period of five years from the date of such assignment.
Every complaint regarding assignment of copyright shall be dealt with by the Appellate Board as far as possible. The Appellate Board shall make efforts to pass the final order within six months from the date of receipt of the complaint. If there is any delay in compliance thereof, the Appellate Board shall record the reasons thereof.
Difference between Assignment and Licensing of Copyright
Copyright license and assignment of copyright are two dissimilar terms that cannot be used interchangeably. Each of them is different in its own way.
- A license provides approval of an act, and without it, the authorization would amount to infringement.
- Licensing usually involves authorizing some of the rights out of many. It can either be exclusive or non-exclusive.
- In the case of assignment, it includes the disposal of the copyright, which in simple terms means the assignor assigns the copyright to another person or the transfer of ownership of the copyright to some other person, whereas in the case of a license, only some Intellectual Property (IP) is transferred and the ownership is not transferred to the licensee. A license does not confer any right to the licensee against a third party or licensor, but an exclusive licensee has substantial rights against the licensor and even a right to sue the licensor.
- A licensee also has the right to make amendments provided that his license does not restrict that right. In case there is a failure in paying the royalties, the licensor can revoke the license. When it comes to the assignment, the same is not possible. However, if there is anything harsh that can affect the author, it may lead to revocation in the event of a complaint made to the copyright board.
- A copyright license, unlike a copyright assignment, needs to be in writing. It can be oral or implied after considering all the facts and circumstances relating to the transaction between the owner of the copyright and the licensee. Thus, if an individual who is the owner of a copyrighted work thinks about assigning the copyright, he can consider licensing his copyright instead of assigning it. It would help in retaining ownership, thereby licensing only certain rights to another party.
Essential Features of a Copyright Assignment Agreement
- The assignment must specify the amount of copyright. The creator shall not assign or waive the right to receive royalties to be shared on an equal basis with the assignee of copyright, subject to certain conditions.
- The ownership may be assigned either wholly or partially.
- The assignment should also specify the duration.
- The territorial extent of such assignment should be specified.
- The assignment shall be subject to revision, extension, or termination on terms mutually agreed upon by the parties.
- The creator is entitled to subsequent royalties in the course of future exploitation of a work.
- The assignee has the rights of translation, abridgment, adaptation, and dramatic and filmmaking in the work after obtaining the rights via assignment deed.
The main objective of the assignment process is to give financial and distribution benefits to the original work. Copyright assignment can prove to be a necessity in this world as it may lead to enhancing the potential of the original work by reaching several individuals as they may add their creativity to the original work. However, the practicality of copyright assignment has been controversial on several occasions due to the increasing number of Copyright Infringement cases.