The Copyright Act, 1957

UNIT 8 AUTHORSHIP AND OWNERSHIP

OF COPYRIGHT
Structure
8.1 Introduction
Objectives
8.2 Ownership: Meaning
8.3 Author: Meaning and Issues
Exceptions to the General Rule
Contract of Service
Joint Authorship
8.4 Assignment of Copyright
Authors Special Rights
8.5 Statutory Exceptions to the Author as the First Owner
8.6 Rights Available to a Copyright Owner
8.7 Protection Available to the Copyright Owners
8.8 Limitations on the Rights of the Copyright Holder
8.9 Licensing of Copyrights
8.10 Summary
8.11 Terminal Questions
8.12 Answers and Hints

8.1 INTRODUCTION
The owner of copyright has no monopoly in the subject matter. Others are at liberty to
produce the same result (from the ‘common source’) provided they do so
independently and their work is ‘original’. Another person may originate another
work in same general form, provided he does so from his own resources and makes
the work he so originates a work of his own by his own labour and industry bestowed
upon it.1 Copyright law does not prevent a person from taking what is useful from an
original work and create new work with additions and improvements. Under the guise
of a copyright, the owner of a copyright cannot ask the court to close all the venues of
research and scholarship and all frontiers of human knowledge.2
To what extent is an author the owner of copyright of the work s/he has/had created?
This is both very simple to answer as much as it has given rise to highly contentions
issues. This is mainly because ownership in copyright has different implications as
contrasted against ownership in physical materials.
It is well-known that the author is the first owner of a work created. But this “first”
ownership prefix has generated many exceptions. This process occasioned by ground
practices has spawned some new concepts/norms and rules in its turn. ‘Contract of
service’, ‘special rights’, ‘joint authorship’ etc. are some such examples. But all these
do not detract the genuine importance of author’s ownership of copyright which in the
interest of advancement of knowledge and progress of the society, has to adjust for a
balanced perspective to certain exceptions.
Objectives
At the end of this unit, you should be able to understand:

• the meaning of ‘ownership’ and ‘author’;

• implications of assignment of copyright for the assignor and assignee;

1
Ravencroft v. Herbert [1980] RPC 193 at p. 204.
2
46 Kartar Singh Giani v. Ladha Singh AIR 1934 Lah 777.
• statutory exceptions to the Author as the first owner; Authorship and Ownership
of Copyright
• special rights of the author and the ‘fair deal’ uses of copyright products;
• limitations on the rights of the copyright holder; and
• licensing of copyrights.

8.2 OWNERSHIP: MEANING

Ownership in copyright is different from ownership in the physical material in which
work is fixed. A person who owns a book may not be owner of its copyright therein.
As a rule, author is the first owner of copyright in a work.3 However the copyright
laws provide certain exceptions to this rule, which are enumerated in the later part of
this Unit. To illustrate this point, if a photograph, painting or a portrait has been made
at the instance of any person for a valuable consideration, such a person is the first
owner of the copyright in this case.
The originator of an idea is also not the owner of copyright in the work unless he is
the creator of the work. Thus if a person has a brilliant idea and he communicates it to
a playwright who goes on to make a play on the same, the originator has no right in
the product, for copyright subsists in a tangible form and not in an idea.

8.3 AUTHOR: MEANING AND ISSUES

An author is a person who, in fact, writes, compiles, composes and draws the work in
issue, although the idea may have been suggested by another. The rationale behind
this is, as we have discussed in previous units, that the originator behind the brilliant
idea is not the copyright owner in the work which gives concrete form to an idea
unless he is also the creator of the work.
The nationality of an author is not the prime determinant of the entitlement of the
author to a copyright under the Act. However, the subsistence of copyright has certain
requirements under Section 13 (2)4.

a) Published work − in case of published work, the work must be published in India
or when published outside India, the author must be a citizen of India at the date
of publication, if alive at that date, or if dead, at the time of his death.
b) Unpublished work − (other than architectural work), the author at the time of
making the work must be a citizen of India or domiciled in India where making of
an unpublished work is extended over a considerable period, the author of the
work will be deemed to be a citizen of, or domiciled in, that country of which he
was a citizen or wherein he was domiciled for any substantial part of that period.
(section 7 of Copyright Act.)
c) Architectural work − the work must be located in India only then it can be subject
of copyright protection.
As a rule, the author is the first owner of the copyright in the work. Section 2(d) of the
Act defines the author of various works as follows:
1. in case of literary or dramatic work, the author of the work,
2. in case of musical work, the composer,
3. in case of an artistic work other than a photograph, the artist,
4. in case of photograph, the person who takes the photograph,
5. in case of cinematographic film, the producer,
6. in case of sound recording, the producer, and
7. in case of literary, dramatic, musical or artistic work which is computer generated,
the person who causes the work to be created.

3
Section 17.
4
Law relating to patents, trade marks, copyrights and designs, Dr. B.L.Wadhera, Edn. 1999,
Universal Book Traders. 47
The Copyright Act, 1957 “Composer” in relation to musical work means the person who composes music
regardless to any form of recording in graphical notation.5 However, the definition of
composer may not enable him to prove his authorship unless the composition is
recorded in some form of musical notation or otherwise.
“Musical work” means a work consisting of music and includes any graphical
notation of such work but does not include any words or any action intended to be
sung, spoken or performed with the music.6

8.3.1 Exceptions to the General Rule

There are certain exceptions to the general rule that author is the first owner, i.e. when
the author is an employee and the work is made in the course of employment, or the
work is a cinematograph film or sound recording, then the copyright in the work vests
with the employer. An author may create a work independently, or he may create a
work under contract of service or contract for service. Where a man employs another
to do work for him under his direct control and supervision, which includes what to be
done and how it is to be done, then it is a contract of service. If, on the other hand, a
man employs another to do certain work but leaves it to the discretion of the other
person the manner in which it is to be performed to result in desired product, then it is
contract for service. The ‘real test’ to ascertain the nature of contract is whether the
employee is employed as a part of the business and whether his work is an integral
part of the business or is only an accessory to it. In the former case, it is a contract of
service and in the latter a contract for service. Therefore, the distinction between the
two is that of between an employee and an independent contractor.

8.3.2 Contract of Service

In the light of the above stated, where an author creates a work at the instance of
another person for a valuable consideration, this is a case of contract of service e.g.
when a music composer composes music of a song for a film or a photographer takes
a photo on behalf of a newspaper etc. In such cases, in the absence of an agreement to
the contrary, the person at whose instance the work is created is treated as the owner
of copyright in the work. In other words, if the work is made by a person pursuant to a
contract of service apprenticeship with you, you are the first owner of the copyright in
that work. If you happen to be the proprietor of a newspaper or a periodical, and the
work is made for purpose of publication in the newspaper under a contract of service
or apprenticeship, then you as proprietor are the first owner of the copyright. If you
have commissioned somebody for valuable consideration to take photographs, or draw
paintings or portraits, or make an engraving or cinematograph film, then you and not
the person who undertakes the commission, is the first owner of copyright. In this
paragraph, the expression “contract of service” would, in the absence of legal
complexities, mean a contract of employment.
It is imperative to note that each of the exceptions given above is subject to agreement
to the contract between employee and the author of the work.
From the discussion above, we may gather that if there is an employer-employee
relationship between yourself and the person creating the work, or if you have
commissioned that person to create the work, you are the first owner of the copyright
by default as it were.

8.3.3 Joint Authorship

A work of joint authorship means a work produced by the collaboration of two or
more authors in which the contribution of one author is not distinct from the

5
Section 2 (ffa).
6
48 Section 2 (p).
contribution of the other author or authors.7 Copyright subsists in the works of joint Authorship and Ownership
of Copyright
ownership.
To constitute joint ownership it is necessary that there should be a common design
and co-operation in carrying out that design. A person who only suggests the idea or
the subject matter of the work cannot be considered as joint author.8 A person who
revises and makes some minor addition for making the work more attractive cannot
claim the authorship with the author.9
Joint authors of a work hold the copyright as ‘tenants in common’ rather than as joint
tenants, and, in the absence of agreement to contrary, each owns an equal undivided
share in the copyright. One joint author cannot reproduce the work himself or grant
licenses to others to reproduce it, without the consent of the other author or authors,
but he may by himself take proceedings for infringement.

SAQ 1 Spend "

5 min.
a) Describe implications of ‘contract of service’.
b) Discuss issues associated with ownership of copyrights.
c) Write a note on ‘Joint Authorship’.

8.4 ASSIGNMENT OF COPYRIGHT

In cases where one is not entitled to be the first owner of the copyright in a work, he
must have the work “assigned” in his favour. This is particularly true if he is engaging
another company as an independent vendor.
As per the Indian Copyright Act, the owner of copyright need not assign all the
various rights that make up copyright - the right to make copies, the right to publish,
the right to make adaptations and so on. He may assign any one or more of them or all
of them. Assignment must be made in writing and signed by the assignor, it cannot be
done orally. The work that is the subject matter of assignment and the rights that are
assigned, and the duration and territorial extent of the assignment − all these must be
specified. It shall also specify the amount of royalty payable, if any, to the author or
his legal heirs during the currency of the assignment which is always subject to
revision, extension or termination on terms mutually agreed upon by the parties. If no
duration is stated, the assignment will be valid for only five years. If the territory
where the assigned rights may be exercised is left unsaid, it will be deemed to be
India. It is therefore important to secure a comprehensive assignment from the owner
of the copyright. It is also imperative that you specify as part of the terms of
assignment that there is no obligation for you as the assignee to actually exercise the
assigned rights. Otherwise, the law deems that if for one year after the assignment,
you have not exercised the rights, the assignment shall lapse. Assignment of a future
work is valid under Indian copyright law but will take effect only after the work
comes into existence.
If you intend to obtain an assignment of copyright from another company, it may be
worthwhile to examine the standard employment contracts between that company and
its employees to ensure first of all that the other company actually has the rights to
assign to you. If no assignment is possible for some reason, then one may obtain an
exclusive license to the work. Here too the license must be in writing and must specify
the rights licensed, the duration of the license, the territory in which the license
operates and so on.10

7
Section 2 (z).
8
Tate v. Thomas (1921) 1 Ch D 503.
9
Levy v. Rutley (1871) LR 6 CP 523.
10
http://www.deccanherald.com/deccanherald/oct042004/eb3.asp 49
The Copyright Act, 1957 8.4.1 Authors Special Rights
By law, there are certain special rights that the author has independent of his
copyright. These rights exist even after assignment of his copyright. These special
rights are the right to claim authorship of the work and the right to prevent the use of
the work in a manner prejudicial to his reputation or claim damages for such use.

8.5 STATUTORY EXCEPTIONS TO THE AUTHOR AS

THE FIRST OWNER
According to Section 17, the author of the work is the first owner of copyright therein.
This is subject to the following statutory exceptions:

a) Literary, dramatic, artistic work11 − where the work is made by the author in the
course of his employment by the proprietor of a newspaper, magazine or similar
periodical under a contract of service or apprenticeship, for the purpose of
publication in a newspaper, magazine or any such periodical etc., the said
proprietor, in the absence of any agreement to the contrary, will be the first owner
of the copyright in the work so far as it relates to the publication of the work in the
newspaper etc. or to the reproduction of the work for the purpose of its being so
published. But in all the other respects the author will be the first owner of the
copyright.

b) Photograph, painting, portrait, engraving or cinematographic film12 − where a

photograph is taken, or a painting or portrait is drawn, or an engraving or
cinematographic film is made for a valuable consideration at the instance of any
such person, in the absence of any agreement to the contrary, will be the first
owner of the copyright therein. Where, however, a person does any of the above
in the course of his employment by the proprietor of a newspaper, magazine or
similar periodical under a contract of service or apprenticeship, for the purpose of
publication in a newspaper, magazine or any such periodical etc., the said
proprietor, in the absence of any agreement to the contrary, will be the first owner
of the copyright.

c) Work made in the course of employment13 − in the case of a work made in the
course of author’s employment under a contract of service or apprenticeship, the
employer (not being proprietor of a newspaper, magazine or similar periodical), in
the absence of any agreement to the contrary, is the first owner of the copyright.

d) Lectures delivered in public14 − where a person has delivered any address or

speech in public that person will be the first owner of the copyright therein. If the
speech is delivered on behalf of some other person, such other owner will be the
first owner of copyright. This is so even if the person who delivers the speech is
employed by any other person who arranges such address or speech or on whose
behalf or premises it is delivered.15

e) Government work16 − in the case of government work, the government, in the

absence of any agreement to the contrary, will be the first owner of the copyright.

f) Work made on behalf of a public undertaking17 − in the case of work made or first
published by or under the direction or control of any public undertaking such

11
Section 17 (a) of the act.
12
Section 17 (b) of the act.
13
Scetion 17 (c) of the act.
14
Section 17 (cc) of the act.
15
Nicols v. Pitman [1884] 26 Ch D 374, where students were held not entitled to publish the
notes of lectures which they have attended.
16
Section 17 (d).
17
50 Section 17 (dd).
 public undertaking will, in the absence of any agreement to the contrary will be Authorship and Ownership
of Copyright
the first owner of copyright therein.

g) Works of certain international organisations18 − in such cases the international

organisations concerned will be the first owner of the copyright.
Exemptions for a ‘fair deal’
Subject to certain conditions, a fair deal for research, study, criticism, review and
news reporting, as well as use of works in library and schools and in the legislatures,
is permitted without specific permission of the copyright owners. In order to protect
the interests of users, some exemptions have been prescribed in respect of specific
uses of works enjoying copyright. Some of the exemptions are the uses of the work
i) for the purpose of research or private study,
ii) for criticism or review,
iii)for reporting current events,
iv) in connection with judicial proceeding,
v) performance by an amateur club or society if the performance is given to a non-
paying audience, and
vi) the making of sound recordings of literary, dramatic or musical works under
certain conditions. 19

8.6 RIGHTS AVAILABLE TO A COPYRIGHT OWNER20

Rights that a Copyright owner acquires, includes:
1. Right of reproduction
Right of Reproduction of the Copyright holder is embodied in the word Copyright
itself. This right is the most important right conferred by Copyright protection and
it essentially means exclusive right to prevent others from reproducing or copying
work in any form without authorization of the owner of the copyright in that work.
For example: A publisher of books cannot publish and distribute a book without
authorization of the author of that book; or the copyright owners also have rights
of authorizing broadcasting of their works or communication thereof to the public
by any means of wireless diffusion of signs, sounds or images for example
through radio, television or satellite. No person can make other sound recording
embodying the sound recording on which copyright exists without the
authorization of the owner of the copyright.
2. Rights of public performance, broadcasting and communication to the public
The authors of the literary and artistic works also enjoy exclusive rights of Public
Performance, Broadcasting and Communication to the public. The author of the
work has a right to exclude the public performance of his work, which means that
no person other than the author or the one authorized by the holder of the
copyright in the work will have the right to publicly perform the work. Therefore
theatrical performance of a play would require an authorization of the author of
that play.
3. Rights of translation and adaptation
The owners of the copyrights also have exclusive rights to authorize translations
and adaptation of their works. Not only the original works but also the translations
and the adaptations of the original works are subject matters of copyright
protection. This is, however, without any prejudice to another right known as

18
Section 17 (ee) and Section 41.
19
Supra Note 16.
20
www.foxmandal.com 51
The Copyright Act, 1957 “Right to Distribution” which is related to the right of reproduction. The right of
reproduction is of little value unless the person receiving the authorization from
the owner of the Copyright to copy his work is able to receive copyright
protection accorded to the original work e.g. reproduction of the work by a
teacher or pupil in course of instruction etc.
All the three rights mentioned above are essentially economic rights as they can
be bargained for financial benefits. However, the Copyright also accords certain
moral rights which remain with the owner even though the economic rights have
been transferred. For example, the author has a right to claim authorship of the
work and object to any distortion, mutilation or other derogatory action in relation
to the said work, which could be prejudicial to the honour or reputation of the
owner of the copyright in that work.

8.7 PROTECTION AVAILABLE TO THE COPYRIGHT

OWNERS
A copyright owner has the exclusive right to do or authorize any other person to do
the following:
a) in case of literary, dramatic or musical work, not being a computer program: to
reproduce the work in any material form including the storing of it in any medium
by electronic means; to issue copies of the work to the public not being copies
already in circulation; to perform the work in public or communicate it to the
public; to make any cinematograph film or sound recording in respect of the
work; to make any translation and adaptation of the work; to do, in relation to a
translation or an adaptation of the work any of the aforesaid acts.
b) In case of computer program: to do any of the acts mentioned in clause (a); to sell
or give on hire, or offer for sale or hire any copy of the computer program,
regardless of whether such copy has been sold or given on hire on earlier
occasions.
c) In case of artistic work: to reproduce the work in any material form to
communicate the work to the public; to issue copies of the work to the public not
being copies already in circulation; to include the work in any cinematograph
film; to make any adaptation of the work; to do in relation to the adaptation of the
work any of the aforesaid acts.
d) In respect of cinematograph film: to make copy of the film including a photograph
of any image forming part thereof; to sell or giving it on hire, or offer for sale or
hire of any copy of the film, regardless of whether such copy has already been
sold or given on hire on earlier occasion and to communicate the film to the
public.
e) In respect of sound recording: to make any other sound recording embodying it; to
sell or give on hire, or offer for sale or hire any copy of the sound recording
regardless of whether such copy has been sold or given on hire on earlier occasion
and to communicate the sound recording to the public.

8.8 LIMITATIONS ON THE RIGHTS OF COPYRIGHT

HOLDER
There are, however, certain limitations imposed on the rights of the Copyright owner.
Some of these limitations include:
The ownership in the Copyright can be transferred by license or assignment. The
assignment can be complete or partial and can be general or subject to certain
52 limitations. Once the Copyright in the work is assigned to someone, the assignee
becomes the owner of the Copyright and all the rights therein except the moral rights Authorship and Ownership
of Copyright
become rights of the assignee. Individuals can make single copies of the works
protected by Copyright for personal, private and non-commercial purpose including
for purpose of research. Copies of a computer programme can be made for backup
purpose.
The author of a work may relinquish all or any of the rights comprising the copyright
in the work by giving notice in the prescribed form to the Registrar of Copyrights.

8.9 LICENSING OF COPYRIGHTS

Owner of a copyright can grant interest in his right by licence in writing to another
person. Licence relating to future work can also be granted, but in that case the licence
takes effect only when the work comes into existence. The license must be in writing
and should be signed either by the owner himself or by his authorised agent.
A licence deed in relation to work should contain the following particulars:
i) identification of work;
ii) duration of licence
iii) the right licensed;
iv) territorial extent of licence;
v) quantum of royalty payable; and
vi) the terms regarding revision, extension and termination.
Provisions as applicable to assignment i.e. period, territorial assignment, resolution of
dispute by Copyright Board are also applicable to license.
There are different kinds of licenses. A license may be exclusive or non-exclusive, it
may be granted by the Copyright Board as a compulsory licence and may be limited to
a specified period of time.
Copyright Rules, 1958 prescribe the procedure for making an application to the
Copyright Board for obtaining licences and the manner of determining royalties under
the following provisions of the Copyright Act, 1957 in India:
i) Compulsory licence in works withheld from public (Section 31): If the owner
does not grant permission for republication, performance or communication to
public, Copyright Board can direct Registrar of Copyrights to grant compulsory
licence to complainant on such terms and conditions as it deems fit.
ii) Compulsory licence in unpublished Indian works (Section 31A).
iii) Licence to produce and publish translations (Section 32).
iv) Licence to reproduce and publish works for certain purposes (Section 32A): This
is a licence to reproduce cheap edition or out of print work.

SAQ 2 Spend "

5 min.
a) Discuss procedures involved in assignment of copyrights by the owner.
b) What exemptions are available for ‘fair deal’ vis-à-vis copyright?
c) Discuss about the protection a copyright owner enjoys in respect of computer
programs and sound recordings.
d) What particulars are necessary for a license deed to be complete?

53
The Copyright Act, 1957
8.10 SUMMARY
• The purchaser of a copy of a book is an owner of the book and not of the
Copyright subsisting in the content of the book.

• Author is the first owner of a Copyright in a work, as per Section 17 of the

Copyright Act, but this is subject to certain statutory exceptions. Some
exemptions are available for ‘fair deal’.

• The owner of the copyright need not assign all the various rights implicit in
Copyright and all such assignments must be specific.

• Ownership of copyright can be transferred by license in writing for which the

Copyright Rules, 1958 has laid down a procedure.

• Copyright in a work can be abandoned through giving notice in a prescribed form

to the Registrar of Copyrights.

• Joint Authors hold the Copyright as “Tenants in Common”.

8.11 TERMINAL QUESTIONS Spend 15 min.

1. Who is an author in relation to a work? What is the relation between author and
owner? (300-500 words)
2. Write short notes on the following:
a) Assignment of copyright,
b) Ownership and transfer of ownership of copyright,
c) Limitations on rights of copyright holder, and
d) Licensing of copyright.

8.12 ANSWERS AND HINTS

Self Assessment Questions
1. Refer to text.
2. Refer to text.
Terminal Questions
1. Refer to text.
2. Refer to text.

54