Author: Abhinav Gaur, Research Associate
The copyright is an exclusive right to a creation, any act to do in relation to artistic, literary, dramatic, musical works, cinematography film, sound recording and software, so that the actual person doing it can control his or her material from being exploited. Widely, copyright includes an act of copying, adopting, issuing copies to the public at large, even performing in public and re-broadcasting material, basically the creator has right to identify his work, right to copy or reproduce the work in which the Copyright subsists ((Vijay Prakash Srivastav, Copyright Enforcement in India: Issues and Challenges , Saraswati House Pvt Ltd, 2008.)). The copyright includes a literary, artistic, musical, dramatic, sound recording, film, videography created by an author ((S 14 The Copyright Act, 1957)). Copyright of the artistic work made by an author as an employee, and while in course of his employment, passes on to the employer in contingencies specified in section 17 (c) ((V.T. Thomas & ors v. Malayala Manorama Co Ltd, AIR 1989 Ker 49.)).
Provisions to determine first Ownership of a copyright
A person who is the author of a work is the first owner of the copyright ((S 17 The Copyright Act, 1957)).
The definition of ‘author’ as given under section 2 (d), states that an author means:
- In relation to a literary or dramatic work, the author of that work;
- In relation to a musical work, the composer
- In relation to an artistic work other than a photo, the artist
- In relation to a photograph, the person who took the photograph
- In relation to a cinematographic film or sound recording, the producer
- In relation to an architectural work or any other work involving artistic craftsmanship, the architect or artist, as the case may be; and
- In relation to a literary, dramatic, musical or artistic work that is computer generated, it is the person who causes the work to be created.
Section 2(z) of the Act, defines a work of joint ownership to mean a work produced by the collaboration of two or more authors in which the contribution of one author is not considered distinct from the contribution of other author or authors. In the case of joint ownership in a copyright work, each of the joint authors have discretion to claim ownership which vests collectively in them and not in any one of them individually.
In case, there is an intellectual contribution by two or more persons, pursuant to a pre-concerted joint design to the composition of a literary work, then those persons who have contributed to the work have to be regarded as joint authors ((Najma Haptulla v. Orient Longman Ltd and others, AIR 1989 Del 63.)).
Terms of Copyright
All the subject matters of copyright as discussed above goes to the public domain after the expiry of duration of copyright in which the owner of the work enjoys the exclusive rights. On the expiration of the term of protection of work falls in public domain or become part of the great common open or common reservoir/ stock of knowledge.
The term of copyright in literary, dramatic, musical and artistic work has more or less universally been adopted as the life time of author plus 50 years. Section 22 determines the years from 50 to 60 years by the copyright Amendment Act, 1992. So far as the other categories of work is concerned it has been mentioned with respect to photograph ((S 25 The Copyright Act, 1957)), cinematograph film and sound recording ((S 26 and s 27 The Copyright Act, 1957)), the term of protection is 60 years, and with respect to broadcasting reproduction rights ((S 37(2) The Copyright Act, 1957))and performers rights, the term of protection is 25 years.
Author of the Work: an Employee or Independent Contractor?
If the creator of the work is an employee, the publisher, as the employer of this employee, automatically, without any written employment contract, owns the copyright and all exclusive rights in creative works of employees that are prepared within the scope of their employment. Judicial decisions have established that an “actual” employee is one where the publisher has the right to control the “manner and means” of production. Employee status will generally be found where there is a salaried employment relationship, tax withholding, employee benefits and other indicators of employment.
If the creator of the work is not an employee, but a freelancer, than the “work made for hire” requirements of the independent contractor prong must be satisfied. This means that the work must be specially ordered or commissioned by the publisher, the work must fall into one of the nine enumerated categories of work, and there must be a signed writing between the parties where they agree that the work will be considered a “work made for hire.”
Ownership of copyright
After having known all the legal provisions of ownership of copyright, we shall now discuss upon the same with few array of judgments.
In the case of M/s Entertainment Network (India) Ltd. Vs. M/s Super Cassette Industries Ltd the supreme court held that “There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property”.
In the case of Angath Arts Private Limited Vs. Century Comm. Ltd. and Another, the High Court of Bombay held that the ‘Joint owner of a copyright cannot, without the consent of the other joint owner, grant a license or interest in the copyright to a third party.’
In the case of Power Control Appliances and Ors Vs. Sumeet Machines Pvt. Ltd. the joint proprietors must use the trade mark jointly for the benefit of all. It cannot be used in rivalry and in competition with each other.
In GeePee Films (p) ltd. Vs. Pratik Chowdhary (([2002 ](24) PTC 392)), it was held that the ownership of copyright when the author does the work at the instance of any person for valuable consideration, or in the case of the course of employment under contract of service faces some complexity and what amounts to contact of service also depends on facts of each case and judiciary has laid down different tests to determine it. An author may create a work independently, or he may create a work under a contract of service or contract for service
In Entertainment Enterprises Ltd Vs. Gajendra Singh and ors ((2008,53 PTC(36)[Bom].)), court took in to consideration the facts that the signing of the voucher by the defendants on behalf of the plaintiff to make payments, TDS certificate indicated him as contractor, Regarding letters send to defendants by the plaintiff appointing as a chairman ,seeking his career progress, Gross salary package revised, usually the word salary never used etc held as contract of service.
When the work is done for Government, Government shall be the first owner of the copyright in the absence of agreement to the contrary ((BM Piros Vs. State of Kerala, 2004 IPLR 26)).