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In this article, Arihant Agarwal discusses the copyright law in India. 

Copyright is one of the few intellectual property rights which has been created to protect the exclusive and original work of any person. It is a legal right created under the law to protect intangible things like ideas, creativity and thoughts in a tangible medium that is when these are written, published or saved in a tangible medium or by means of expression. Copyright cannot be claimed unless the creative work is original, exclusive and transferred to a tangible medium[1]. The main purpose of copyright law is to safeguard the ideas and creativity of the authors from infringement by other artists. While the aim is protection, this protection also grants the authors monopolistic rights with a bundle of rights. Authors or copyright holders can have monetary gains by licensing their work for further printing, broadcast, converting into another medium for cinematography, etc. These copyrights can also be sold or transferred to others. This makes copyright similar to other conventional types of property.

This law helps protect the investment and labor of all people and offers a reward by giving them long-term rights over their work while promoting art and science[2]. Under Indian laws, the Copyright Act of 1957 is the law which deals with this particular intellectual property.

The work which is protected under the Copyright Act are any original literally, dramatic, musical or artistic work, cinematographic films and sound recordings[3]. No infringed work will be granted copyright protection especially cinematograph films and musical work[4]. Though all these works are protected together under the same umbrella of copyright, different work have different terms of protection. The duration of protection differs due to the varied input of work by different authors in entirety. The duration of protection for literary, dramatics, musicals and artistic work is the lifetime of the author and an additional sixty years after the death of the author[5]. However, the duration of protection for cinematographic films and sound recording is limited to sixty years from the year of publishing[6].

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In India, registration of copyright is not compulsory as copyright of an artistic work is received as soon as it is completed in a tangible form[7]. Since all the rights which are connected to the ownership of copyright are statutory in nature, registration has not been made mandatory[8]. The obvious question after this is the check on infringement considering the lack of compulsory registration. The check for infringement is done only when a suit for the same is initiated. Hence, unless a suit is initiated, infringement of any person’s copyright goes unchallenged and such infringement can last in perpetuity unless noticed and challenged. However, the Copyright Act does promote registration of copyright under Section 48 which states that in a case wherein infringement of copyright has been challenged, the registration of copyrights and its entry in the Register of Copyrights shall be used as a final and conclusive proof in any court of law[9]. So, the obvious advantage of getting your copyright registered is its use as evidence in a court of law. However, since registration is not mandatory, it does not have any bearing on the monetary use of copyrights like licensing or assignment.

The rights related to copyright under the Copyright Act are conferred upon to the owner or the holder of a copyright. Therefore, it is essential to note who is the owner of a copyright. The general understanding is that the author or creator of the work is the first owner of the copyright unless there is a contract to the contrary[10]. However, there are exceptions to this rule. When any literary, dramatic or artistic work has been developed under a contract of service or apprenticeship for purposes of publication, then unless there is a contract to the contrary, then the copyright for publishing such work rests with the proprietor of the publishing house and all the remaining rights rest with the author[11]. In cases where some work has been under a contract for service or is commissioned by another person, then unless there is a contract to the contrary, then the first owner of the work is the person who has paid for the work and at whose instance the work has been developed[12]. When some work has been developed in a course of employment which is not meant only for future publishing, then the employer becomes the first owner of the copyright[13]. When a speech has been delivered in public, then the person delivering the speech or the person on whose behalf the speech has been delivered will be the first owner of the copyright[14]. In absence of an agreement to the contrary, when a work has been developed on behalf of the government or by a public undertaking, then the government or the public undertaking is the first owner of the copyright[15]. When the work has been developed by an international organization and there cannot be any other copyright holder apart from such international organization, then the first owner of the copyright shall be such international organization[16].

Copyright holder has varied rights which are all statutory in nature. These rights are exclusive of other people and hence negative in nature. These rights can be classified as either economic right or moral rights. Economic rights are those whose exploitation can bring economic benefit to the owner or holder of the copyright like assignment, licensing, mortgaging, etc. Moral rights are rights which are associated solely with the creator of the work as they are possessed due to the virtue of his creation[17]. The economic rights are usually the most contested rights as they have the potential to bring massive monetary gains to the holder of the copyright. Copyrights are increasingly treated as conventional assets to increase their monetary usability and hence, all over the world, mostly through the influential international conventions, the protection term of copyrights have been increased over the past few decades[18]. Copyrights can be assigned, licensed out, mortgaged, sold, transferred using testamentary and non-testamentary methods, etc.

The most common usage of copyrights is assignment and licensing. In India, assignment of copyright will be valid only if the same is done in writing and is signed by the assignor or his agent along with stating the rights which have been assigned, the duration of the assignment, the territorial extent of the assignment and the royalty associated with such copyright[19]. A copyright holder can assign the entire or part of copyright with certain limitations in any current or future work. After an assignment, the assignee is treated as the owner of the work for the rights which have been assigned to him[20].

The most common monetary usage of copyrights is licensing. This helps the copyright holder to have monetary gains for distribution or use of his copyrighted work. This is the main incentive for any person to develop a work which can be copyrighted. Licenses are of two types which are voluntary and involuntary. Voluntary licenses are those where the owner in his current work or a prospective owner in his future work, or their agents can grant certain fixed interests in their copyright to any third person for a form of consideration.[21] This consideration is called royalty. Voluntary licenses are of two types which are exclusive and non-exclusive. An exclusive license is one where the licensee is given rights in a copyright to the exclusion of all other people including the copyright holder[22]. A non-exclusive license is where there might be several other licensees. Non-voluntary license is when there is a statutory compulsion or a general compulsion on the authors or the copyright holders to license certain rights associated with their copyrights. These compulsory licenses are generally made due to public policy reasons and to prevent high monopolistic nature of the copyright holders. The first instance of compulsory licensing is when the author or holder of a copyright holder unreasonably refuses to republish or reperform a previously published literary work or previously performed dramatic work, or refuses rebroadcasting of communication, or refuses sound recording of previously recorded sound recordings or withholds work from the public, then upon payment of reasonable royalty, the court may compel the copyright holder to license out such work to the complainant[23]. In cases of unpublished work, or when work has been previously published or communicated but is now being withheld from the general public, or when the author of any work is dead or untraceable or unknown and any person makes an application for its license, then the court will compulsorily license out the work[24]. The court will grant a compulsory license to any applicant who wishes to make any work available for disabled people regardless of the fact that the applicant is working on a profit or business-based motive[25]. There are various other compulsory licenses stated in the Copyright Act of 1957 which are allied to the ones stated above. These are the ways any copyright holder can make use of his copyright during his lifetime for gaining monetary benefits of his work.

It is stated that various work which are covered by the Copyright Act like literary, dramatics, musicals and artistic work have protection for a period of sixty years after the death of the author[26]. So, the obvious question here is that who becomes the owner of the copyright after the death of the original holder or owner of the copyright. Considering that copyright is an asset and has over the past few decades been turned into more like a conventional property with respect to the rights of its holder, it is evident that the owner’s heirs or legal representatives will gain the rights of the copyright after the owner’s death[27]. However, the transfer of the copyright’s ownership is also dependent on the owner’s actions during his lifetime. It is possible to mortgage a copyright[28] and while a copyright has been mortgaged, the ownership cannot change hands directly. The legal heirs have to pay the mortgaged money to claim back the copyright for the mortgagee. Also, since the mortgagee does not have ownership over the copyright, he cannot alienate the rights associated with the copyright until he becomes a valid owner due to the mortgagor’s payment default. If the original owner of the copyright has created a charge over the asset, then the legal heirs will also have to repay the debts in that aspect before claiming a proper title over the copyright[29]. In case of bankruptcy of the original holder, the copyright is transferred to the official liquidator under the relevant law as it is considered as an asset which can be used to raise money[30]. In such a case, the heirs of the original holder cannot claim ownership of the copyright. Considering that a copyright is a personal property of the author, the author is fit to dispose of the property as he deems fit. The author can sell his property to anyone he wishes to. If the author dies intestate, then the copyright is passed on to his heirs or legal representatives as a part of his estate and is divided amongst his legal heirs in accordance with the relevant law[31]. However, if the author creates a will, then the testamentary mode of succession along with the relevant laws will be followed[32]. When a copyright is owned by two authors jointly, upon the death of any one, his part of the copyright is transferred to his legal representatives or heir and not the entire copyright as the joint authors are owners in tenant[33]. However, the moral rights associated with the copyright are not transferred by such means. The moral rights of a copyright cannot be transferred unless the original author of specifically transfers the moral rights to someone by assignment[34]. When no such transfer is made, the rights which are transferred are the economic rights and the ownership of the copyright.

Once a legal representative or an heir gets the ownership of a copyright, he has absolute control over the rights associated with the copyright. He has the right to use it for all monetary gains till the protection term lasts[35]. However, monetary exploitation like licensing and assignment shall happen in the name of the original author unless the original author has transferred his moral rights as well. Hence, this ensures that the original author is given due acknowledgment for his rights during the entirety of the protection term of the copyright.

Hence, it is clear that the original author of any copyright has multiple benefits arising out of the copyright. Also, the fact that the original author should be rewarded for his hard work and investment has been duly achieved. It has also been ensured that the author’s licensing rights are passed on to his beneficiaries so that they can also monetarily exploit the copyright. Hence, it is evident that there is little difference between the rights which are afforded to the author and to his legal representatives or heirs. This paucity of difference ensures that the protected term of the copyright is not only exploited to the fullest but also that the author is given complete acknowledgement for his work.

[1] Bently, L., Sherman, B. and Gangjee, D. (n.d.). Intellectual property law. 4th ed. oxford.

[2] Gopalakrishnan, N. and Agitha, T. (n.d.). Principles of Intellectual Property.

[3] The Copyright Act, 1957.2(y).

  The Copyright Act, 1957.13.

[4] The Copyright Act, 1957.13(3).

[5] The Copyright Act, 1957.22.

[6] The Copyright Act, 1957.26.

   The Copyright Act, 1957.27.

[7] Copyright.gov.in. (n.d.). Hand Book of Copyright Law. [online] Available at: http://copyright.gov.in/documents/handbook.html [Accessed 18 Oct. 2018].

[8] Gopalakrishnan, N. and Agitha, T. (n.d.). Principles of Intellectual Property.

[9] The Copyright Act, 1957.48.

[10] The Copyright Act, 1957.17.

[11] The Copyright Act, 1957.17(a).

[12] The Copyright Act, 1957.17(b).

[13] The Copyright Act, 1957.17(c).

[14] The Copyright Act, 1957.17(cc).

[15] The Copyright Act, 1957.17(d).

    The Copyright Act, 1957.17(dd).

[16] The Copyright Act, 1957.17(e).

     The Copyright Act, 1957.41.

[17] Cornish, W., Llewelyn, D. and Aplin, T. (2018). Intellectual Property: Patents, Copyrights, Trademarks & Allied Rights.

[18] Sterling, J. (n.d.). WORLD COPYRIGHT LAW. [S.l.]: SWEET & MAXWELL.

[19] The Copyright Act, 1957.19.

[20] The Copyright Act, 1957.18.

[21]The Copyright Act, 1957.30.

[22] The Copyright Act, 1957.2(j).

[23] The Copyright Act, 1957.31.

[24] The Copyright Act, 1957.31A.

[25] The Copyright Act, 1957.31B.

[26] The Copyright Act, 1957.22.

[27] Sterling, J. (n.d.). WORLD COPYRIGHT LAW. [S.l.]: SWEET & MAXWELL.

[28] Bently, L., Sherman, B. and Gangjee, D. (n.d.). Intellectual property law. 4th ed. Oxford.

[29] Bently, L., Sherman, B. and Gangjee, D. (n.d.). Intellectual property law. 4th ed. Oxford.

[30] Bently, L., Sherman, B. and Gangjee, D. (n.d.). Intellectual property law. 4th ed. Oxford.

[31] Academy of General Education, Manipal v B. Malini Mallya, AIR 2009 SC 1982.

[32] Academy of General Education, Manipal v B. Malini Mallya, AIR 2009 SC 1982.

[33] Sterling, J. (n.d.). WORLD COPYRIGHT LAW. [S.l.]: SWEET & MAXWELL.

[34] Cornish, W., Llewelyn, D. and Aplin, T. (2018). Intellectual Property: Patents, Copyrights, Trademarks & Allied Rights.

[35] Cornish, W., Llewelyn, D. and Aplin, T. (2018). Intellectual Property: Patents, Copyrights, Trademarks & Allied Rights

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