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.
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.
Example: Sarah, a photographer, took a photograph of the Lincoln Memorial. Sarah is the author of the photograph and the initial owner of the copyright in the photograph.
Where the author of the work is employed by another person, the work belongs to the employer of the author.
Example: As part of his job, John, an employee of Big Company’s training division, created original interactive training materials on e-commerce for Big’s marketing staff. Even though John created the training materials, Big is the author for copyright purposes. Big owns the copyright in the training materials (unless John and Big have agreed in a signed contract that John owns the copyright)
Determination of Ownership:
Who is the Author :
The definition of Author is can be generalized in many ways, an author is also known as the first owner of anything which is created or developed by him whether it is artistic work or literary work and whatsoever any type of creation. In essence, The Author of the photograph is the person who takes the photo. The author of the musical work is Composer. In the case of cinematography, the author is the producer of the film at the time of its complication, etc.
According to section 2(d) of the Copyright Act,1957 ‘author’ has been defined as:
- In relation to a literary or dramatic work, the author of the work;
- In relation to a musical work, the composer;
- In relation to an artistic work other than a photograph, the artist;
- In relation to a photograph, the person taking the photograph;
- In relation to a cinematograph film or sound recording, the producer; and
- In relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.”
Who is Owner ?
Copyright Act, conveys the idea of ownership different from authorship. As we discussed above, the fundamental rule is that the first owner of the copyright is the author. However, the Copyright Act, 1957 specifies certain exceptions to this general rule. Therefore, it becomes vital to understand the difference between authorship and ownership of copyright. Let’s understand with the help of illustrations.
For Instance, if ‘X’ asks ‘Y’, a composer to compose a piece of music for him for an agreed sum of money, then although Y has created the Music Composition, here, Y shall be the author and X who paid the sum of money as Consideration for the Music shall become the first owner of the copyright arising and resulting out of the Music.
In other words, the work which made through the course of employment or if any commission is charged for the work in such a situation the person who is the employer or paid the commission as consideration becomes the owner of the rights in that work.
General Exception :
“Work of joint authorship” means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the
other author or authors.
In Donoghue v. Allied Newspapers Lid.” entire material was supplied by Donoghue to Felstead, who was a journalist. The material was in fact, his experiences which he shared with Felstead, for the purpose of writing article for a newspaper. The court held that Donoghue was not an author or even a joint author of those articles.
The issue of authorship of a book India Wins Freedom came up before Delhi High Court in Najma Heptulla v. M/s Orient Longman Ltd 1989 The book recorded experiences of Maulana Abul Kalam Azad. Azad used to describe his experiences and Humayun Kabir, a close associate of Azad, used to make copious notes. When sufficient material was collected for a chapter, Kabir prepared a draft in English and gave it to Azad. Azad read each chapter and after that both Azad and Kabir went over that chapter together. Azad used to make many amendments, additions, alterations and omissions. Kabir’s function was only to record Azad’s feelings. Kabir did not interfere with the opinions and judgments in the book, even if he did not agree with Azad. Azad communicated his thought to Kabir in Urdu and the later strived as far as he could to reflect it with complete accuracy in English.
Disagreeing with the judgement in Donoghue’s case, the court observed that if the reasoning in Donoghue’s case was correct, it would mean that material on the basis of which a literary book was written would be of no importance, while deciding as to who was the author of a book. The Court concluded that the work India Wins Freedom was the product of the active and close intellectual collaboration between Azad and Kabir in pursuance of a preconcerted joint design between the two that Azad would contribute the material for the book and Kabir write the same in English. Such a work could neither be regarded as the sole creation of Azad nor as the sole creation of Kabir but was a work of joint authorship.
Ownership – No copyright in ideas
Normally, it is not difficult to decide as to who is the author of the work, but sometimes problem may arise. Thus, where a person merely suggests the plot of a novel or play to the writer, he will not be considered as author of the novel or play as there is no copyright in ideas. Thus, if a person who has an idea for a story, picture, or play, communicates it to another, the production which is the result of the communication of the idea is the copyright of the person who has clothed the idea in form It is equally clear that a mere amanuensis does not by taking down word for word the language of the author, become in any sense the author of the work.
STATUTORY EXCEPTION UNDER SECTION 17 OF THE COPYRIGHT ACT, 1957
Section 17 of the Copyright Act, 1957 is an exception to the fundamental or general rule of the author being the first owner of the copyright. This section Simply elaborates consideration paid by the person for the work to be done shall become the first owner of the copyright. Let’s see this section in more detail.
Section 17 (a) of Copyright Act, 1957: literary, dramatic and artistic works:
Section 17 (a) deals with literary, dramatic, and artistic work. This section states that whoever such type of work is done by the author during the tenure of employment or service to the owner of the newspaper, book, magazines, etc. under the contract or obligation to publish such work under such circumstances the owner of that newspaper or magazine shall become to the owner of the copyright.
In the Judicial pronouncement of, V.T.Thomas Vs. Malayala Manorama company Ltd., It Was held that once the employment agreement is terminated, the work created by the person after the termination from his work that person shall be the first and real owner of that work for the claim of copyright and the ex-employer have no right to claim copyright for that subsequent work.
Section 17 (b) of Copyright Act, 1957: photograph, painting, engraving, cinematographic film.
Section 17 (b) deals with the hired photographer, painter, engraver, cinematographer. If these professionals are hired by some person for their work then the person causing such work to be created shall become the first owner of the copyright. However, this rule shall apply only if there’s no agreement to the contrary between the parties.
In Chidambare v. Renga, it was held that where a person is under an obligation to do something, and in the discharge of such obligation, he transfers a certain interest, and such transfer is done in favor of valuable consideration than the first owner right is vested upon the person who is paying the valuable consideration.
For Instance, if ‘A’ who is a Photographer has been hired by ‘B’ to click a photograph of his son, then ‘B’ shall be the first owner of the copyright arising and accruing from the photographs created by ‘A’ in return of consideration. However, ‘A’ shall have authorship right over the portrait.
Section 17 (c), Copyright Act, 1957: work made during the course of employment
Section 17 (c) states that, if aby work is made by a person in the term of his employment under a contract of service or traineeship, then the employer will always be the first owner of all the work created during such employment unless there’s an agreement in contrary between the parties.
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 an 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 account. In the former case, it is a contract of service and in the latter a service contract.
For Instance, If Mr. X is a software designer in ABC company, then all the software Design created by Mr. X is Under the Copyright of The Company and the Company is the sole or first owner of that Design.
Section 17 (cc), Copyright Act, 1957: lectures delivered in public on behalf of another
Section 17(cc) deals that, if any person is delivering a speech on behalf of another then, the person on behalf of whom the lecture is delivered is the first owner of such copyright. However, if there is no representation of anyone else then, he becomes the author and first owner of such copyright.
For instance, if ‘X’ the spokesperson of ‘Z’ a political leader gives a speech in public, then albeit ‘X’ is delivering the speech in public, ‘Z’ shall be the first owner of the copyright of such speech
Section 17 (d) of Copyright Act, 1957: work assigned by Government
Section 17(d) states that, if any copyrightable work is created on being tendered by the government, then the copyright arising and accruing from such work vest the right of copyright on the government. In other words, the government shall be the first owner of that subsequent copyright unless there’s an agreement to the contrary between the party.
For instance, if ‘Z’ a sculptor, has been Under tender to create a sculpture of Sardar Patel to be affixed on the road by the State Government of Gujarat then, the State government of Gujarat shall own first ownership of copyright arising from such sculpture.
Section 17 (dd) and Section 41 of Copyright Act, 1957: copyrightable works created for the certain international organization
Section 17 (dd) states that, if any copyrightable work is assigned to any person by the international organization, then the international organization shall be the first owner of the copyrightable work, and the power to use the copyright protection is vested upon that international organization.
RIGHTS OF THE COPYRIGHT OWNER
The copyright protection is provided by the Copyright Act,1957 in India. These protections are enjoyed by the copyright owner in two following ways:
- Economic right of the author, and
- The moral right of the author
Ownership of copyright is one of the key ingredients to protect the right of authors or first owner. The creation of any work by himself automatically creates the right for the owner to enjoy all the rights provided under Copyright Act,1957. Due to modernization and the advancement of technology, it is the need of the hour to keep updating copyright laws because every day infringement of the right of the author takes place in the digital world. Hence, development in copyright laws from time to time is the only way to solve this problem.