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The importance
of copyright was recognized only after the invention of printing
press, which enabled the large production of books in large
quantity practicable. In India the first legislation of its kind,
the Indian Copyright Act, was passed in 1914, which was mainly
based on the United Kingdom Copyright Act, 1911. During the five
decades modern and advance means of communications like
broadcasting, litho-photography, television etc., have made roads
in the Indian economy. So there was the need of new more powerful
law, which can protect the rights of copyright owners or original
creators. So new Act was enacted by the parliament of India, which
was based on the Berne convention and universal copyright
declaration. This Act is known as the copyright Act, 1957, which
is suitably amended again in the 1999 according to the prevailing
situation in the India and around the world. In the field of
copyright, India as a signatory to the Berne Convention and the
International Copyright Order, 1958, which is now replaced by the
International Copyright Order of 1991. It provides the same
protection to nationals of member States as its own nationals. The
States so covered are the Berne Convention signatories, the
Universal Copyright Convention countries and the Phonograms
Convention countries. Patents and trademarks registered outside
the country are protected against infringement in India if they
have acquired international reputation and goodwill. The courts
often extend the principles of unfair competition or passing off
to stop infringement.
Ownership of copyright-
The provisions of acquiring copyright ownership are defined under
Section 17 of the Act. The right of ownership is available only if
one qualifies the provision of this Act. There is no other remedy
in other laws prevailing in India to counter the violation of
copyright ownership.
The nationality of the person is the important factor to get the
right of the copyright. The section 13(2) provides that-
(1) In case of published work, the work must be published in India
or when published outside India, the author must be citizen of
India at the date of publication or if dead at the time of his
death.
(2) Section 7 of the copyright Act provides that the author in the
case of unpublished work, at the time of making of an unpublished
work must be citizen of India or domiciled in India where the
making of an unpublished work is extended over a considerable
period.
(3) In the case of architectural work the work must be situated in
India.
The international organization and the citizen of other countries
also get the protection of copyright in India but it is subject to
the certain condition and they are not per se qualified for the
protection.
According to Section 17 of the Copyrights Act, 1957 the first
owner of copyright is defined as under:
Subject to the provisions of this Act, the author of a work shall
be the owner of copyright therein. Section 17 statutorily
recognizes the author of the work to be the first owner of the
copyright. The author is defined under the Act for various works,
which come under the law of copyright.
Section 2(d) defines author, it says "Author" means, -
(1) In relation to a literary or dramatic work, the author of the
work;
(2) In relation to a music work, the composer;
(3) In relation to artistic work other than a photograph, the
artist;
(4) In relation to photograph, the person taking the photograph,
the artist;
(5) In relation to a cinematograph film or sound recording, the
producer; and
(6) In relation to any literary, dramatic, musical or artistic
work which is computer- generated, the person who causes the work
to be created.
However, this provision is subject to certain exceptions. For
instance Section17 (a) provides that where a work is made by the
author in the course of his employment by the proprietor of a
newspaper, magazine or a periodical under a contract of service or
apprenticeship for the purpose of publication in a newspaper,
magazine or periodical, the said proprietor, in the absence of any
agreement to the contrary will be the first owner of the copyright
in the work in so far as it relates to the publication of the work
in any newspaper, magazine or similar periodical or to the
publication of the work for the purpose of being so published.
Except in such cases, the author will be the first owner of the
copyright in the work. In Thomas v. Manorama , it was held that in
the case of termination of the employment, the employee is
entitled to the ownership of copyright in the works created
subsequently and the former employer has no copyright over the
subsequent work so created.
The copyright in a work done by an employee on his own time and
not in the course of his employment belongs to him.
Section 17(b) provides that where a photograph is taken or a
painting or a portrait drawn, or an engraving or a cinematograph
film made, for valuable consideration at the instance of any
person, such person, in the absence of any agreement to the
contrary, shall, be the first owner of the copyright therein. In
Chidambare v. Renga , where a person rests under an obligation to
do something, and in discharge of such obligation, he transfer a
certain interests, such transfer is for valuable consideration.
Section 17 (c) provides that in the case of work made in course of
the author's employment under a contract of service or
apprenticeship, to which clause (a) or clause (b) does not apply,
the employer shall, in the absence of any agreement to the
contrary, be the first owner of the copyright therein. An author
may create a work independently, or he may create a work under a
contract of service or contract for service.
Where a man employs another to do work for him under his control,
so that he can direct the time when the work shall be done the
means to be adopted to bring about the end, and the method in
which the work shall be arrived on, then the contract is contract
of service. If, on the other hand, a man employs another to do
certain work but leaves it to that other to decide how that work
shall be done. What step shall be taken to produce that desired
effect, and then it is a contract for service. 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
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 own account. In the former
case it is a contract of service and in the latter a contract for
service.
The services of an independent contractor are hired for creating
or doing a work on a given subject. For example, an examiner who
prepares question papers for a university or college. As it was
held in University of London Press v. University Tutorial Press ,
the examiner was free to prepare his questions at his convenience
so long as they were ready by the appointment for the
examinations, and it was left to his skill the syllabus, the book
work, and the standard of knowledge to be expected at the
matriculation examination, and in view of this aspect of matter,
the examiner was not acting under the contract of service but
contract for service.
Thus the distinction between the two is same as that between and
an independent contractor. An employee is a person who is subject
to the command of his employer as to the manner in which he shall
work. In such cases the employer in the absence of a contract to
contrary is the first owner of the copyright.
Section 17(cc) provides that in case of any address or speech
delivered in public, the person who has delivered such address or
speech such address or if such person delivered such address or
speech on behalf of any other person, such other person shall be
the first owner of the copyright therein notwithstanding that the
person who delivers such address or speech, or, as the case may
be, the person on whose behalf such address or speech is
delivered, is employed by any other person who arranges such
address or speech or on whose behalf or premises such address or
speech is delivered;
Section 17(d) provides that in the case of a government work, the
government shall, in the absence of any agreement to the contrary,
be the first owner of the copyright therein;
Section 17(dd) states that in the case of a work made or first
published by or under the direction or control of any public
undertaking, such public undertaking shall, in the absence of
agreement to the contrary, be the first owner of the copyright
therein;
The explanation to the Section provides that for the purpose of
this clause and section 28A, "public undertaking": means:
(1) An undertaking owned and controlled by Government; or
(2) A Government company as defined in section 617 0f the
companies Act, 1956; or
(3) A body corporate established by or under any central,
provincial or state Government;
Section 17(e) provides that in the case of a work to which the
provisions of section 41 apply, the international organization
concerned shall be the first owner of the copyright therein.
For understanding the concept of ownership under this clause one
have to look to the section 41 of the Act. Which says where any
work is made or first published by or under the direction or
control of any organization to which this section applies, and
there would, apart from this section, be no copyright in the work
in India in the time of the making or, as the case may be, of the
first publication thereof, and either:
(1) The work is published as aforesaid in pursuance of an
agreement in that behalf with the author, being an agreement which
does not reserve to the author copyright, if any, in the work, or
(2) Under section 17 any copyright in the work would belong to the
organization,
There shall, by the virtue of this section, be copyright in that
work throughout India. Any organization to which this section
applies which at material time had not the legal capacity of a
body corporate shall have and be deemed at all material times to
have had the algal capacity of a body corporate for the purpose of
holding, dealing with, and enforcing copyright and in connection
with all legal proceedings related to copyright. The organization
to which this section applies are such organizations as the
central Government may, by order published in the official
Gazette, declare to be organizations of which one or more
sovereign powers or Government or governments thereof are members
to which it is expedient that this section shall apply.
Assignment of copyright
The owner of the copyright in an existing work or the prospective
owner of the copyright in a future work may assign to any person
the copyright, either wholly or partially and either generally or
subject to limitations and either for the whole term of the
copyright or any part thereof.
However, in the case of the assignment of copyright in any future
work, the assignment shall take effect only when the work comes
into existence.
Where the assignee of a copyright becomes entitled to any right
comprised in the copyright, the assignee as respects the rights so
assigned, and the assignor as respects the rights not assigned,
shall be treated for the purposes of this Act, as the owner of
copyright and the provisions of this Act shall have effect
accordingly.
The expression "assignee" as respects the assignment of the
copyright in any future work includes the legal representatives of
the assignee, if the assignee dies before the work comes into
existence.
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 authorized
agent.
Transmission of copyright in manuscript by testamentary
disposition
Where under a bequest a person is entitled to the manuscript of a
literary, dramatic or musical work, or to an artistic work, and
the work was not published before the death of the testator, the
bequest shall, unless the contrary intention is indicated in the
testator's will or any codicil thereto, be construed as including
the copyright in the work in so far as the testator was the owner
of the copyright immediately before his death.
The expression "manuscript" means the original document embodying
the work, whether written by hand or not.
Right of author to relinquish copyright
The author of a work may relinquish all or any of the rights
comprised in the copyright in the work by giving notice in the
prescribed from to the Registrar of Copyrights and thereupon such
rights shall, subject to the following conditions, cease to exist
from the date of the notice.
On receipt of a notice, the Registrar of Copyrights shall cause it
to be published in the Official Gazette and in such other manner
as he may deem fit.
The relinquishment of all or any of the rights comprised in the
copyright in a work shall not affect any rights subsisting in
favour of any person on the date of the notice.
Conclusion-
The Copyright Act, 1957 is a comprehensive Act. The object of this
Act is thou shall not steal. This Act is drafted in tune of
English and American laws. This Act safeguards the ownership of
unpublished work also in addition to the protection grated to
publish work. In the case of unpublished work the author must be a
citizen of India or domiciled in India at the time of the creation
of the work. Copyright in an architectural work will subsist only
if the work is located in India irrespective of the nationality of
the author. Ownership of original work is only protected through
the statute and common law in India does not offer any remedy for
the same. Copyright subsists in the original work the reproduction
of the adaptation will be possible only with the consent or
license of the copyright owner of the original work. Where the
owner of a copyright in an original work licenses another person
to arrange or adapt it, for example to base a film script or play
upon a book, the copyright in the arrangement then vest in the
arranger, who has originated it.
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The
author can be reached at
skm123@vsnl.com
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