This article is written by Aishwarya Parameshwaran, pursuing Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho. The article has been edited by Aatima Bhatia (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).
As a layman who has very little knowledge about the aspects of copyright, we tend to believe that a music composer or a director is always the owner of the copyright arising from a song or a film. However, such is not always the case. The concept of ownership under copyright has a very different implication in comparison to other domains. The concept of authorship and ownership are very distinct from each other.
In this article, we shall begin with a basic understanding of Copyright and then understand in detail who is an author, and who is an owner of the copyright as per the Copyright Act, 1957. We shall also study the statutory exception to the concept of authorship and ownership of copyright.
Basics of copyright
Copyright is a type of intellectual property that is generally owned by the creator. It is given in the name itself that one possesses rights against the person copying it. The Copyright Act, 1957 is the law that deals with copyright in India. The intent of the legislature with respect to the Copyright Act, 1957 is, to assure authors, artists, composers, designers; basically, those who belong to the creative field who invest time, energy and money in creating the work and secondly, to encourage creative individuals to create more such work without fearing violation of their rights.
The Copyright Act, 1957 intends to safeguard the rights of the owner as well as the author, whether the copyrightable work is published or unpublished. It is requisite that in cases of unpublished works the author must be a citizen or have a domicile of India at the time of the creation of such work. One must always keep in mind that copyright subsists only in those works which are original. However, reproduction or adaptation of a work is only possible after acquiring the necessary permissions for the same. Now that we have learnt the basics of copyright, let us study in detail who is an author under copyright.
Who is an author?
Generally, an author is that person who writes or composes the work, either all by himself or according to the direction given by another person. Whenever a copyrightable work is created, the author puts in his intellectual ability in order to create the work. Hence, the Copyright Act, 1957, recognizing the efforts put by the authors, grants authorship rights to the author of the creation. Since copyright is a universal right, it doesn’t matter what the nationality of the author is in order to acquire authorship rights. However, the Copyright Act, 1957 specifies certain requisites under Section 13 of the said Act which needs to be met in order to own copyright.
The Copyright Act, 1957 has set a general rule under the definition of the author of various works laid down under Section 2(d), which states that the author is the first owner of the Copyright. Section 2(d) of the Copyright Act, 1957. The section reads as follows:
- In literary or dramatic works, the author of such work shall be the author.
- In musical works, the music composer shall be the author.
- In artistic works, the artist shall be the author.
- For a photograph, the person clicking such photograph shall be the author.
- In cinematographic films, the producer of such a film shall be the author.
- For a sound recording, the producer of such sound recording shall be the author.
- When a literary, dramatic, artistic or musical work is a computer generated then the person who causes such work to be created is the author.
Who is an owner?
The concept of ownership is very different under the Copyright Act. As we discussed above, the general rule is that the author is the first owner of the copyright. However, the Copyright Act, 1957 specifies certain exceptions to this general rule. Therefore, it becomes very important to understand the difference between authorship and ownership of copyright. Let us understand with the help of illustrations.
If ‘A’ asks ‘B’, a painter to paint his portrait for an agreed sum of money, then although B has created the painting, he shall be the author and A who paid consideration for the portrait shall become the first owner of the copyright arising and accruing out of the portrait.
In many scenarios, the work may be commissioned or made through the course of employment. In such a situation, the person who commissions the work or who is the employer becomes the owner of the rights in that work. The statutory provision that recognizes such a person as the owner is laid down under Section 17. Let’s understand the same in the next subheading of this article.
Thomas vs Manorama:
In this case, it was held that once the employment agreement is terminated, the work created by a person subsequent to such termination shall be the first and true owner of copyright arising out of such subsequent works and the former employer shall possess no copyright on such subsequent copyrightable work.
Statutory exception under Section 17 of the Copyright Act, 1957
Section 17 of the Copyright Act, 1957 is an exception to the general rule of the author being the first owner of the copyright. This section simply lays down that a person who pays a consideration for the work to be done shall become the first owner of the copyright. Let’s dive deeper into this section.
Section 17 (a) of Copyright Act, 1957 : literary, dramatic and artistic works
This clause of Section 17 talks about literary, dramatic and artistic works. It says that whenever such a work is made by an author during the course of his employment or service to the owner of a newspaper, magazine, book etc under a contract for publishing such work, then subject to an agreement in contrary, the owner of such newspaper or magazine shall become the first owner of the copyright.
If ‘A’ is a journalist employed at Mirror Now, a newspaper agency, then he shall only enjoy authorship rights over that article. The first owner of the article shall be the owner of Mirror Now.
Section 17 (b) of Copyright Act, 1957 : photograph, painting, engraving, cinematographic film
This clause talks about the cases when an artist is hired for creating a painting, or when a photographer is hired for clicking images, or a cinematographer is hired to shoot a cinematographic film 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.
If ‘X’ who is an artist has been hired by ‘Y’ to create a portrait of his son, then ‘Y’ shall be the first owner of the copyright arising and accruing from the portrait created by ‘X’ in lieu of consideration. However, ‘X’ shall retain authorship rights over the portrait.
Section 17 (c), Copyright Act, 1957 : work made during the course of employment
This section provides that, when a work is made by a person in the course of his employment under a contract of service or traineeship, then the employer shall become the first owner of all the work created during such employment unless there’s an agreement in contrary between the parties.
If ‘M’ is a programmer employed at XYZ company, then all the copyright arising from codes created by ‘M’ shall be owned by XYZ company as the first owner.
Section 17 (cc), Copyright Act, 1957 : lectures delivered in public on behalf of another
As per this clause, if a person is delivering a speech on behalf of another then, the person on behalf of whom the lecture is given in the public is the first owner of such copyright. However, if a person gives a lecture in public by himself and not representing anyone else then, he becomes the author and first owner of such copyright.
If ‘A’ the spokesperson of ‘B’ a political leader delivers a speech in public, then although ‘A’ is delivering the speech in public, ‘B’ shall be the first owner of the copyright of such speech.
Section 17 (d) of Copyright Act, 1957 : work assigned by Government
Suppose if a copyrightable work is created on being tendered by the government, then such government shall be the first owner of the copyright arising and accruing from such works unless there’s an agreement to the contrary between the parties.
If ‘A’ a sculptor, has been tendered to create a sculpture of national heroes to be affixed on the road by the State Government then, the State government shall own first ownership of copyright arising from such sculpture.
Section 17 (dd) of Copyright Act, 1957 : copyrightable work made on behalf of a public undertaking
When a copyrightable work is created as per the direction of the public undertaking, then such public undertaking shall be the first owner of the copyright.
Section 17 (dd) and Section 41 of Copyright Act, 1957 : copyrightable works created for certain international organization
Suppose if an international organisation assigns a person to create a copyrightable work for them then, that international organization shall become the first owner of such copyrightable work.
This article makes it clear that the Copyright Act, 1957 has precisely demarcated authors, owners and their rights. In the event that there is an ambiguity amongst the parties as to the authorship or ownership of rights, one can simply check the contract they have entered in and the terms and conditions therein. If the parties share a relationship where section 17 applies and there’s no agreement between the parties which is in contrast, then the authorship and ownership rights shall be granted to parties only as per Section 17 of the Copyright Act, 1957. Therefore, there is no hard and fast rule on who owns authorship and who has the ownership of copyright. It is completely dependent on a case-to-case basis and the agreement existing between the parties.
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