Concept of Owner and Author under Copyright Law

Introduction

In the realm of copyright law, the concepts of “ownership” and “authorship” serve as the cornerstone for determining who holds the rights to a creative work. Ownership of copyright is distinct from owning the physical object in which the Workis embodied. For instance, owning a painting or a book does not automatically confer the right to reproduce or distribute the content within it. Instead, copyright belongs to the person who has fixed the original expression of an idea into a tangible form. The law recognizes the creator of this expression as the owner rather than the mere originator of the underlying idea.

Ownership of Copyright

The ownership of copyright in a work is distinct from the ownership of the physical material in which the Work is fixed. For instance, owning a book or its manuscript does not automatically make one the owner of the copyright contained within it.

Moreover, merely originating an idea does not grant ownership of the copyright unless the originator is also the creator of the Work. Copyright belongs to the individual who gives concrete form to the idea.

For example, if someone has a brilliant idea for a story, play, or picture and communicates that idea to an author, playwright, or artist, the resulting production based on that idea will be the copyright of the artist who gave the idea its form, whether through a book, play, or picture. The originator of the idea, therefore, holds no rights in the product where the copyright exists.

Who is the First Owner?

Section 17 of the Copyright Act states that subject to the provisions of the Act, the author of a work is the first owner of the copyright therein.[1]

Who is the Author?

Generally, the “author” is the person who actually writes, compiles, composes, or draws the Work, even if the idea was suggested by another.

Section 17 addresses two circumstances:

1. Where the author is the first owner of the copyright.
2. Where someone other than the author is the first owner of the copyright (i.e., the proviso to Section 17).

Definition of “Author” under Section 2(d) of the Copyright Act, 1957:

• Literary or Dramatic Work: The author of the Work.
• Musical Work: The composer.
• Artistic Work (other than a photograph): The artist.
• Photograph: The person who takes the photograph.
• Cinematograph Film: The producer.
• Sound Recording: The producer.
• Computer-generated Literary, Dramatic, Musical, or Artistic Work: The person who causes the Work to be created.

As per Section 17, subject to the provisions of the Act, the author of a work is the first owner of the copyright therein.

Persons Other Than the Author as the First Owner

The proviso to Section 17 outlines seven exceptional cases where the author is not deemed the first owner of the copyright.

1. Author of Literary, Dramatic, or Artistic Work in Employment of Newspaper, Magazine, or Periodical:

Proviso (a) to Section 17 states that the proprietor of a newspaper, magazine, or similar periodical, under a contract of service or apprenticeship, shall be the first owner of the copyright only in relation to the publication of the Work in the newspaper, magazine, or periodical, or its reproduction for such purposes. In all other respects, the author remains the first owner of the copyright.[2]

Thus, the author of a literary, dramatic, or artistic work may not be the first owner in the following circumstances:

a) Work of employees of proprietors of newspapers, magazines, or similar periodicals.

When an author of a literary, dramatic, or artistic work is under a contract of service or apprenticeship with a newspaper, magazine, or periodical, the proprietor is the first owner of the copyright insofar as it relates to the publication of the Workin any newspaper, magazine, or periodical. However, in all other respects, the author retains the copyright in the Work, including rights like making a cinematograph film or performing the Work.[3]

This exception does not apply if the employee enters into an agreement with the employer that states the employee will be the first owner of works created during the course of employment.

b) Work created under general employment.

Section 17(c) applies to works created under general employment. If a work is created by an employee during the course of employment under a contract of service or apprenticeship, the employer is the first owner of the copyright unless there is an agreement to the contrary.[4]

For example, if an employee writes a book related to his professional Work at home during evenings and weekends, not under the direction of his employer, it is not considered written during the course of employment. Upon termination of employment, the employee retains ownership of the copyright in works created thereafter, and the former employer has no rights in such copyright.

2. Photographs, Paintings, Portraits, Engravings, or Cinematograph Films:

If a photograph is taken, a painting or portrait drawn, an engraving made, or a cinematograph film produced for valuable consideration at the instance of any person, that person, in the absence of any agreement to the contrary, will be the first owner of the copyright.[5]

For instance, if a person engages in these activities during the course of employment with a newspaper, magazine, or periodical, the proprietor will be the first owner of the copyright related to the publication of the Work in such periodicals. However, in all other respects, the author retains ownership of the copyright.

Under Section 13 of the Act, an artist is the owner of the copyright in an artistic work because they create it.[6] However, producers may acquire these rights by virtue of Section 17(b), which provides that the author of a work is the first owner of the copyright in the absence of any agreement to the contrary.

For example, when a song is recorded for a film, the producer typically enters into a contract with the artist, in which the artist assigns their rights to the producer unconditionally and forever. As a result, producers make all profits by selling the copyright to music companies, while the author and creator of the Work do not receive any share of the profit.

The Copyright (Amendment) Act, 2012 introduced a new proviso to Section 17, stating that an “agreement to the contrary” referred to in Section 17(b) does not affect the copyright vested in the author by virtue of Section 13(1)(a).

Commissioned Works

An author may create a work at the instance of another person for valuable consideration. Examples include a person writing a report for a company, a composer creating a song for a film company, a photographer taking a photograph at someone’s request, or a painter drawing a portrait at the behest of another. In such cases, in the absence of an agreement to the contrary, the person who commissions the Work is the owner of the copyright.

In Eastern India Motion Pictures v. Performing Rights Society Ltd.[7], the Calcutta High Court held that when a cinematograph film producer commissions a composer of music or a lyricist for valuable consideration to make a film, the producer becomes the first owner of the music or lyrics.

In Indian Performing Rights Society v. Eastern India Motion Pictures Association[8], the Supreme Court observed that when a cinematograph film producer commissions a composer or lyricist for valuable consideration, the rights of the composer or lyricist can be overridden by the producer under provisions (b) & (c) of Section 17 of the Copyright Act, 1957.

Equitable Right in Commissioned Work: When a person commissions certain drawings or designs, the equitable rights in the copyright pass from the designer to the person who commissioned the Work. Even if the equitable title in the copyright does not pass to the person commissioning the Work, there is an implied license for them to use the drawings.

The passing of equitable title in copyright or the granting of an implied license to use a copyrighted work does not mean that the author has waived their moral rights under the Act.

Commissioned Work Partly Subcontracted: In cases of commissioned Work where part of the process has been subcontracted, the person who commissioned the ultimate article and paid for it is considered the person who commissioned the Work, and the copyright belongs to them.

3. Work Made in the Course of Employment:

Proviso c to Section 17 provides that where Work is done in the course of the author’s employment under a contract of service or apprenticeship, and where provisos (a) and (b) do not apply, the employer is the first owner of the copyright unless there is an agreement to the contrary.[9]

In Raj Kumar Sharaf v. Visakha Chemicals[10], the Copyright Board held that where a work is created by an employee during the course of their employment, under a contract of service or apprenticeship, and provisos (a) and (b) do not apply, the employer is the first owner of the copyright unless there is an agreement to the contrary.

Where Section 17 Proviso c Does Not Apply:

Proviso c to Section 17 does not apply where the author of the Work is an independent contractor, even if the Work is done at the request of another person.

In such a situation, the independent contractor remains the first owner of the copyright, regardless of whether the employer has paid the contractor to do the Work unless there is an agreement to the contrary.

In Griffith v. Towers[11], the appellant, an employer, paid an independent contractor to create an invention, but there was no agreement to the contrary. The employer was not deemed the first owner of the copyright, as the contractor was an independent party. The Work created by the contractor was not considered to be made “in the course of employment.”

4. Lectures Delivered in Public:

Under Section 17, proviso (cc) of the Copyright Act, 1957, the copyright ownership of a public lecture, which includesaddresses, speeches, or sermons, depends on the context of the delivery. The individual who delivers the lecture is the first owner of the copyright. However, if the lecture is delivered on behalf of another person, that person holds the copyright, even if the lecturer is employed or engaged by someone else to deliver it.[12]

A lecture is defined in Section 2(n) of the Act to include addresses, speeches, and sermons, with Section 2(g) extending this to include mechanical or broadcast delivery.[13] For copyright protection, the lecture must be written down before delivery. An extempore lecture, not reduced to writing, can only be protected through a breach of confidence claim if delivered under an express or implied contract, with assurances against publication.

In Caird v. Simne[14], it was held that a lecture delivered in the classroom by a professor to his students is not a public lecture. By delivering such lectures, the Professor does not make his lecture public, and such lectures cannot constitute communication to the public at large.

5. Government Work:

Proviso (d) to Section 17 provides that in the case of a Government work, the Government is the first owner of the copyright.[15]

Government Work Defined:

Government work is defined under Section 2(k) of the Act as a work made or published by or under the direction or control of:[16]

• The Government or any department of the Government.
• Any State Government or any department thereof.
• Any local authority.
• Any other prescribed authority.

6. Work Made Under the Direction or Control of Public Undertakings:

Proviso (dd) to Section 17 provides that in the case of a work made or published under the direction or control of a public undertaking, the public undertaking is the first owner of the copyright.[17]

Public Undertaking Defined:

A public undertaking is defined under Section 2(gg) of the Act as:[18]

• An undertaking owned or controlled by the Government.
• A Government company as defined in Section 617 of the Companies Act, 1956.
• A body corporate established by or under any Central, Provincial, or State Act.
• An undertaking owned or controlled by a local authority.

7. Work Made for International Organizations:

Proviso e to Section 17 provides that in the case of a work made or published under the direction or control of any international organization, the international organization is the first owner of the copyright.[19]

International Organization Defined:

An international organization is defined under Section 2(m) of the Act as:

• Any organization that the Central Government may, by notification in the Official Gazette, declare to be an international organization for the purposes of this Act.[20]

Rights of the Copyright Owner

1. Economic Rights of a Copyright Owner

Economic rights refer to the legal entitlements that allow the copyright owner to monetize their Work. These rights are fundamental in enabling the copyright holder to control how their Work is used and to derive financial benefits from it. In Indian law, these economic rights are comprehensively listed under Section 14 of the Copyright Act of 1957. Here are the key economic rights provided under the Act:

I. Right to Reproduce the Work: The right to reproduce the Work is a fundamental economic right that allows the copyright owner to make copies of their Work. Reproduction includes the Act of copying the original Work in whole or in part, and this can be done in various forms, such as print, digital, or any other medium. The copyright owner has the exclusive right to authorize or prohibit others from reproducing their Work.

Infringement of this right occurs when an unauthorized party reproduces the Work, even if it is only a substantial or material portion of it. The courts have recognized that it is not necessary to copy the entire Work to constitute an infringement; even a partial reproduction that captures the essence of the original Work can lead to liability.

In the case of R.G. Anand v. M/S. Delux Films & Ors[21], the Supreme Court of India held that the reproduction of substantial parts of a copyrighted work, especially if it captures the core or essence of the original, can be considered an infringement.

II. Right to Distribute the Work in the Market

The copyright owner has the exclusive right to distribute their Work, which includes selling, renting, lending, or gifting the Work. This right enables the copyright owner to control the availability of their Work in the market and to generate income through various means.

The principle of exhaustion, or the “first sale doctrine,” applies to this right. Once a copyrighted work is sold, the copyright owner’s right to control the distribution of that particular copy is exhausted, meaning that the purchaser can resell or transfer the copy without infringing the copyright. However, this principle does not apply to rentals or lending of copyrighted works, especially in contexts like libraries or video rentals, where the owner can continue to control the distribution and charge fees.

For instance, in the case of Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey[22], the Supreme Court held that the copyright owner’s right to distribute their Work is exhausted only upon the first sale and does not extend to subsequent sales by the buyer.

III. Right to Communicate the Work to the Public

The right to communicate the Work to the public allows the copyright owner to make their Work available to the public through various channels, including broadcasting, webcasting, and public performance. This right is essential in the modern digital age, where works are often disseminated through the internet and other electronic means.

Unauthorized communication of the Work to the public constitutes an infringement of the copyright. The courts have consistently protected this right, ensuring that only the copyright owner or those authorized by them can publicly perform or broadcast the Work.

In Indian Performing Right Society Ltd. v. Aditya Pandey[23], the Delhi High Court reinforced this right by restraining the defendant from communicating copyrighted works to the public without proper authorization.

IV. Right of Adaptation

The right of adaptation allows the copyright owner to modify, alter, or create derivative works based on the original copyrighted Work. Adaptations can include converting a novel into a screenplay, rearranging a musical composition, or translating a book into another language. This right is limited to literary, musical, and dramatic works and does not extend to computer programs.

Adaptation must maintain a degree of originality, even if it is derived from a non-copyrighted source. The courts have upheld this principle, ensuring that adaptations that lack originality do not qualify for copyright protection.

In Macmillan and Company Ltd. v. K. and J. Cooper[24], the Privy Council held that for an adaptation to be protected, it must possess sufficient originality and creativity. The case demonstrated that merely deriving a work from a non-copyrighted source without adding original content does not entitle the creator to copyright protection.

V. Right to Translate the Work

The right to translate a work into different languages is an important economic right, especially in a multilingual country like India. This right enables the copyright owner to control the translation of their Work, ensuring that it reaches a wideraudience while still maintaining the economic benefits of the original Work.

Unauthorized translation of a copyrighted work is considered an infringement, as it involves reproducing the essence of the Work in another language. The courts have emphasized that merely adopting an idea from a work does not constitute infringement; there must be a substantial reproduction of the Work for it to be considered an infringement.

In Academy of General Edu., Manipal & ANR. v. B. Malini Mallya[25], the court held that mere adaptation of an idea does not amount to copyright infringement. However, if the translation involves substantial copying of the original Work, it would be considered an infringement.

2. Moral Rights of a Copyright Owner

Moral rights are a set of entitlements that protect the personal and reputational interests of the copyright owner. These rights go beyond the economic benefits derived from work and focus on the Work’s integrity and the author’s personal connection to it. Under Indian copyright law, moral rights are detailed in Section 57 of the Copyright Act, 1957[26]. These rights are fundamental in preserving the dignity and reputation of the Work and the author. The principal moral rights recognized are:

I. Right of Paternity

The right of paternity allows the copyright owner to claim authorship of the Work and to prevent others from falsely claiming authorship. This right ensures that the original creator of the Work is recognized and credited appropriately. It also includes the right to prevent others from claiming ownership of the Work, which is essential for maintaining the author’s reputation and integrity.

In Sholay Media Entertainment Pvt. Ltd. v. Parag M. Sanghavi[27], the Supreme Court of India addressed the right of paternity by protecting the iconic title of the movie “Sholay.” The court held that the defendant’s use of a similar movie title infringed upon the reputation associated with the original title. The defendant was required to change the title of the movie to avoid damaging the distinctive and cult status of “Sholay.”

II. Right of Integrity

The right of integrity allows the copyright owner to protect the Work from distortion, mutilation, or other modifications that would harm the reputation of the Work. This right ensures that the Work remains as the author intended and is not subjected to changes that could negatively impact its original character and quality.

In Sajeev Pillai v. Venu Kunnapalli & Ors[28], the Kerala High Court addressed the right of integrity by restraining the unauthorized pre-release publicity of a movie. The court ruled that such actions, which could damage the exclusiveness and reputation of the movie, infringed upon the author’s right to maintain the Work’s integrity and reputation.

III. Right of Retraction

The right of retraction allows the author to withdraw their Work from publication if they believe it has been published in a manner that could harm their reputation. This right acknowledges that an author may wish to distance themselves from a work that has been altered or misrepresented in a way that derogates from its original value and dignity.

In Amarnath Sehgal v. Union of India[29], the Supreme Court recognized the right of retraction by granting the author the option to withdraw their Work from public display. The plaintiff’s Work had been damaged, resulting in a loss of its aesthetic and market value. The court awarded a mandatory injunction along with compensation, allowing the author to retract their Work to protect their reputation.

[1] The Copyright Act, 1957, s. 17.

[2] Id. at s. 17(a).

[3] Ibid.

[4] Id. at s. 17(c).

[5] Id. at s. 17(b).

[6] Id. at s. 13.

[7] AIR 1978 Cal 477.

[8] AIR 1977 SC 1443.

[9] Supra note at 4.

[10] 2009 (39) PTC 576 (CB),

[11] 1897 AC 1.

[12] The Copyright Act, 1957, s. 17(cc).

[13] Id. at s. 2(n).

[14] 1887 GLP 526.

[15] The Copyright Act, 1957, s, 17(d).

[16] Id. at s. 2(k).

[17] Id. at s. 17(dd).

[18] Id. at s. 2(gg).

[19] Id. at s. 17(e).

[20] Id. at s. 2(m).

[21] (1978) 4 SCC 118.

[22] (1984) 2 SCC 534.

[23] (2012) 5 SCC 712.

[24] (1924) 26 BOMLR 848.

[25] (2009) 4 SCC 256.

[26] The Copyright Act, 1957, s. 57.

[27] (2004) 3 SCC 393.

[28] (2010) 3 KLT 620.

[29] (2002) 5 SCC 370.