Copyright Protection in Indian Law

INTRODUCTION

At the heart of the copyright system is the author of a creative work. The Berne Convention, establishing a union to protect literary and artistic works, recognizes by virtue of Article 1 that the rights being protected through copyright law are the rights of authors. Authors are the first beneficiaries of rights under the law and provide a reference point as to how long rights over the work should exist. However, authors are not identified with as much precision as the rights protected under law and this may be because of the divergences in national law on some aspects of authorship after the Convention was promulgated. Authorship in copyright today is a legal artifact allowing a market for creative works to function and at the same time is also a reversion to early versions of romantic authorship that allows autonomous individuality on the part of the author. Seen this way, the concept of authorship provides a fundamental contradiction between collective market economics of commercialization and the individual prerogatives of an author to exercise complete control over how the work is used.

Copyright protection is given for a work having originality, i.e. it should be from the author and must have minimum degree of creativity. So it is the author who is the real creator of the work thereby first owner of the copyright and Indian law recognizes author as the first owner of the copyright [1] .But by the term ‘ownership’ it means it includes not only the author ,but also assignee and can even a legal entity even though not defined in the Act. In Bern convention the term Author is not defined, instead it says the person under whose name the work is disclosed ,which implies that it is not necessary that always the author should be the owner [2] . However Indian copyright Act defines the tern ‘Author ‘with respect to various works, but still leaves some problems. It becomes more complex in the context of changing technologies, i.e. cinematographic works, sound recording, broadcasting etc. which is a combination of different works, also when author does the work in the course of employment.

The Concept of Authorship in History

The author in copyright history, especially before the Statute of Anne [3] , had been regarded as a separate entity from the printer or publisher of a work. The distinguishable rights of a book owner over the manuscript as a physical object made out of ink and parchment from the rights of an author over the text itself indicated an early separation between the person who created the work and the person who invested in publishing it. In fact, early forms of copyright practiced by the book trade showed more of an economic interest by the book sellers in the physical embodiment of a text rather than the text itself [4] . Printing privileges that were given to printers in the year 1400s allowed books to be printed in large quantities and distributed. This encouraged a capitalistic enterprise in the form of the book trade to develop though not creative endeavors through autonomous authorship. Authors were given separate privileges but it appeared from the privileges granted to authors, editors, translators and printers that even in fifteenth century Venice, a fusion of authorship and the print business existed.

Whereas, Authorship and Ownership have long been closely intertwined in copyright law. Indeed one of the most notable features of statute of Anne, 1710 was that it recognized authors as first owners of the literary property they created [5] . This concept has been repeated in United Kingdom’s Copyright Act of 1988declares that the author of a work is the first owner of copyright [6] . The rule that copyright initially vests in the author is, however, subject to a number of exceptions. The first and most important concerns works made by employees. Exceptions also exist in relation to Crown copyright, parliamentary copyright, and to works created by officers of international organizations. [7]

Ownership of Copyright In India

The provisions of acquiring copyright ownership are defined under Section 17 of the Act. According to which, 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 [8] .

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

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.

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.

Conflict of Ownership in the Commissioned Work

Gee Pee Film Pvt Ltd vs. Pratik Chowdhary and others , when the work is a combination of different works e.g. Cinematographic works sound recordings etc. The lack of clarity in the definition of “producer” became a mooted point. Such a question came before the court, where the question was by taking the financial responsibility of sound recording whether one will fall under the definition of ‘producer’. Even though the plaintiff paid all the expenses of recording including hire charges of studio and remuneration of musicians, the Calcutta High Court said, this case belonged to the concept of contract for services, where court held that under section 17 (b) of copyright act, the only instances where copyright gets lost is when someone comes under photography, paintings and etc. where defendants who composed the Bengali song, did not come under these categories and also the court rejected the other contention of the plaintiff, regarding plaintiff being a producer. The Court said, in order to be a producer, a person must take the initiative as well as responsibility of the sound recording, Court said “if a person bears all expenses for recording and keep the master tape thereof, such facts do not imply that he has also taken responsibility of the recordings and thus can’t be held as producer . The word “responsibility” appearing in section 2(uu) of the act, does not refer to financial responsibility, but means consequential “legal responsibility”Conflict of Ownership in Joint Authorship

The owner of the copyright means person who possess and enjoys the legal right. The definition given to the author in the context of copyright protection depends on the nature of the work &s.2 (d) [9] defines ‘author’. The creator of the work can also be joint authors, but dilemma lies in determining the criteria for joint authorship, S. 2(z) of the Copyright Act defines work of joint authorship [10] .Such an issue came before the court in Najma Heptulla v.Orient longmanLtd. [11] , the question before the Court was whether a person who gives form to the narration will become the joint author of the book India Wins freedom’. Even though the work was composed by Humayun Kabir (close associate of Maulana Azad) the material for the book was supplied by the Azad with a clear understanding that kabir will describe those thoughts and conversations and write the same in English language and Kabir’s function  was only to record Azad’s findings and not to let his views colour the narrative . The preface itself shows it is the Azad who decided as to which 30 pages of the book were not to be publish and which of his views should be contain in his book and read every word of manuscript and made alterations additions, omissions and correction.

Court concluded that the work India Wins Freedom was the product of the active and close intellectual collaboration between Mulana Azad and Humayun Kabir in pursuance of pre-concerted joint design between the two that Azad would contribute the material for the book, and kabir will write the same in English. Such a work could neither be regarded as sole creation of either one of them, but as the work of Joint Authorship.. However no specific criteria was laid down by the court to determine what amount to active and close intellectual collaboration to determine join authorship. It raises an interesting question whether a person who has not himself put pen to paper but someone else has done that effectively writing what the first person had created can become a joint author. Or mere recording a narration makes him a joint author.  However, after this case no such issue has come before the judiciary.

In order to decide 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 [12] faces some complexity and what amounts to contact of service also depends on facts of each case & 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

That brings us to the controversy surrounding the Contract of Service and Contract for Services in Copyright law. The law distinguishes between these two terms and hence not every contract under which one works for another or provides services for another is a contract of service. As per Halsbury’s Laws of England, a contract of service is not the same thing as contract for services, the difference being the same as that between an employee and independent contractor; an employee is a person who is subject to the demands of his employer as to the manner in which he shall work. The existence of direct control by employer, the amount of independence on the part of the person who renders services, and the place where service is rendered are all matters to be considered in determining whether there is contract of service. [13]

Generally, there are not many difficulties in deciding whether the person is an employee or an independent contractor but sometimes difficulties may arise. Earlier, emphasis was placed on the amount of control of employer over employee. The case of Simmons vs. Heath Laundry Co [14] , fletcher Moulton, LJ held that:

“The greater the amount of direct control exercised over the person rendering the services by person contracting for them the stronger the grounds for holding it to be a contract of service and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of nature of professional services and the contract is not one of service.” [15]

In the case of V.T Thomas v. Malayala Manorama [16] , where the question before the court was after termination of employment of employee (Tom) from Manorama regarding the future work of Tom manorama can claim authorship, 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.

After his termination of employment from Manorama Tom is the author of the work he is free to draw the cartoons and Manorama has no right to restrain him from drawing the cartoon.. Here the interesting question is that if the Manorama contented that they are the owner of the cartoons then is it possible for them to restrain Tom to use such characters. If the cartoon is developed during the course of employment whether the author can use it after his termination from employment. The Court in the end concluded that cartoon characters were developed by the author in 1957 which entitle him to copyrights.

In University of London Press Ltd vs. University Tutorial Press Ltd [17] 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. In that case the element of control was considered important in deciding whether or not the authors of certain examination papers, who were not on the staff of the University of London, were employed under contract of service. The Court answered in the negative.

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, copyright vest in the employer. If, on the other hand, a man employs another to do certain work but leaves it to that other to decide how that works shall be done. What step shall be taken to produce that desired effect, and then it is a contract for service. In such cases a copyright vests in him and not the employer. Control test is a useful way of determining whether a person is an employee where the parties are in master –servant relationship [18] .But it provides little help in relation to those professions where a person has considerable amount of freedom. In the circumstances the courts have stressed that the question of whether someone is an employee depends on whether the work they perform is an integral part of the business. In determining whether someone is an employee, court, looks at nature of relationship and what is that and what it is that a person does in day to day activities. Also factors like their responsibility provide their own equipment, hire their own helpers, take financial risk and have opportunity of profiting from the task they perform. Also financial arrangement between the parties etc.

The present day approach should be to abandon the search for a single test, and instead to take a multiple or ‘ pragmatic ‘ approach, weighing upon all the factors for and against a contract of employment and determining on which side the scales eventually settle. Factors which are usually of importance such as – the power to select and dismiss, the direct payment of some form of remuneration, the organization of the workplace, the supply of tools and materials (though there can still be a labor-only sub- contract) and the economic realities meaning who bears the risk of loss and has the chance of profit and whether the employee could be said to be ‘in business on his own account’.

Conflict of Authorship in Cinematographic Film

Generally, the author of cinematographic film is the first owner of the copyright in such film [19] , but conflict can arise when the producer of particular film and composer of songs, those songs which are later used in that film. In caseIPRS Vs. Eastern India Motion Pictures [20] ,The question before the court was whether the producer of a cinematography film can defeat the rights of composer of music or lyrist and the court held that u/s17(b) there is automatic transfer of all rights of the author. Therefore, the producer is the owner of musical or sound recording the producer can defeat right of the composer of music or lyrist .But Sec 13(4) says that copy right in a cinematographic film or a sound recording shall not affect the separate copyright in any work in respect of it or a substantial part of which, the film, or, as the case may be, the sound recording is made, so by the combined reading of sec. 13(3) and (4) presupposes contractual relationship with these creators to safeguard the interest S.17 contemplates contract of employment and in the case of 17(b) cinematography film can be made under contract for employment in such cases copyright of composers and lyrists still remains with them. It is the contractual obligation which binds the producers and composers and lyrists , and 17(b) there is no automatic transfer of all rights of the author. In 17(b) there is no mention of the sound recording or literary or musical work only cinematographic film is mentioned. Therefore, the producer is not the owner of musical or sound recording unless it complies with S.17(c) thus the producer cannot defeat right of the composer of music or lyrist. So it is clear that intention behind S.17(b) is to provide incentive to the author of literary or musical or sound recording work otherwise the whole purpose of sec. 17 and 13(4) which safeguards the balance will be defeated. But here the court give different interpretation to 17(b) without considering S 13(4) and (5) and held that there is automatic transfer of all rights of authors u/s.17(b) .By this decision, it will be the producer who will be enjoying economic benefits from the work of composer or lyrist. The producer is getting the right to incorporate literary or musical work in the cinematographic film. So once the literary or musical work of the composer or lyrist is incorporated in cinematographic film i.e., right u/s. 14(a)(iv) is transferred to the producer but the other rights of author on musical and literal work still rest upon composer or lyrist. To an extent it was made clear by later amendments in s. 2(g) &(uu)also s.14.

Conflict of Ownership in Computer Program

As we all know, the author of a work is generally the first owner of the copyright therein [21] . In a computer program is made by an employee during the course of employment, then ownership of that computer program rests with the employer, subject to the agreement to the contrary. But at the same time everything made by employee during course of employment, the employer may not necessarily own copyright in that. Let’s say employee made a program which ultimately helps in his work but where the program was created the designation of that man was not as computer programmer, his task did not include making computer program under that scenario employer will not have ownership and hence authorship and ownership will rest with the same man i.e. the employee. But whereas the computer program was created outside the normal courses of his duties but employee used employer’s equipment to make that program, then employer will be the owner of that computer’s program copyright.

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.