This Article is written by Apurba Das, a law graduate from Madhusudhan Law College, Utkal University, Odisha, an intern under Legal Vidhiya
In this article, we shall begin with an introductory understanding of Copyright or Brand and also understand in detail who’s an author, and who’s an owner or proprietor of the brand as per the Copyright Act, 1957. The conception of ownership under brand has a veritably different recrimination in comparison to other realm. The conception of authorship and ownership are veritably distinct from each other. We shall also study the statutory exception to the conception of authorship and ownership of copyright.
Keywords: Copyright, Authorship, Ownership, Act, Law.
Copyright is a type of intellectual property that’s generally possessed by the creator. It’s given in the name itself that one possesses rights against the person copying it. The Copyright Act, 1957 is the law that deals with brand in India. The intent of the council with respect to the Copyright Act, 1957 is, to assure authors, artists, melodists, contrivers; principally, those who belong to the creative field who invest time, energy and plutocrat in creating the work and secondly, to encourage creative individualities to produce further similar work without stewing violation of their rights.
The Copyright Act, 1957 intends to guard the rights of the proprietor as well as the author, whether the copyrightable work is published or unpublished. It’s needful that in cases of unpublished workshop the author must be a citizen or have a fireside of India at the time of the creation of similar work. One must always keep in mind that brand subsists only in those workshops which are original.
The proprietor of copyright or brand has no monopoly in the subject matter. Others are at liberty to produce the same result (from the ‘common source’) handed they do so singly and their work is ‘original’. Another person may appear another work in same general form, handed he does so from his own coffers and makes the work he so originates a work of his own by his own labour and assiduity bestowed upon it. Brand law doesn’t help a person from taking what’s useful from an original work and produce new work with additions and advancements. Under the guise of a brand, the proprietor of a brand cannot ask the court to close all the venues of exploration and education and all borders of mortal knowledge.
It’s well- known that the author is the first proprietor of a work created. But this “first” power prefix has generated numerous exceptions. This process occasioned by ground practices has spawned some new generalities morals and rules in its turn. ‘Contract of service’, ‘special rights’, ‘common authorship’ etc. are some similar exemplifications. But all these do not abstract the genuine significance of author’s power of brand which in the interest of advancement of knowledge and progress of the society, has to acclimate for a balanced perspective to certain exceptions.
WHAT IS OWNERSHIP?
Ownership in copyright is different from power in the physical material in which work is fixed. A person who owns a book may not be proprietor of its brand therein. As a rule, author is the first proprietor of brand in a work. However, the copyright act gives certain exceptions to this rule, which are enumerated here in later parts. To illustrate this point, if a snap, oil or a portrayal has been made at the case of any person for a precious consideration, such a person is the first proprietor of the brand in this case.
The originator of an idea is also not the proprietor of brand in the work unless he is the creator of the work. therefore, 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 brand subsists in a palpable form and not in an idea.
Section 17 of the Copyright Act, 1957, provides for vittles of acquiring Power of Brand. The Power right is available only if the person qualifies the provision of the Copyright Act, 1957. In other laws prevailing in India, no other remedy is available to fight the violation of Ownership or Power of Brand. Section 17 of the Copyright Act, 1957, provides for the provision that the first proprietor of Brand is defined to be the author of the work. The description of the author is defined independently under the Copyright Act, 1957, to easily explain the distinction between the Ownership and Authorship of Copyright in India. The description of author related to colourful workshop is handed under the Copyright Act, 1957.
WHAT IS AUTHORSHIP?
An author is someone who, in fact, writes, compiles, composes and draws the work in issue, although the idea may have been suggested by another. The explanation behind this is, as we have known in former, that the originator behind the brilliant idea is not the copyright or brand owner in the work which gives concrete form to an idea unless he is also the creator of the work.
The nation of an author is not the high determinant of the subvention of the author to a brand under the Act. Still, the subsistence of copyright has certain conditions under Section 13(2)
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 housed in India where timber of an unpublished work is extended over a considerable period, the author of the work will be supposed to be a citizen of, or housed in, that country of which he was a citizen or wherein he was housed for any substantial part of that period. (Section 7 of Copyright Act.)
c) Architectural work − the work must be located in India only also it can be subject of brand protection.
As a rule, the author is the first proprietor of the brand in the work. Section 2(d) of the Act defines the author of colourful workshop as follows
1. in case of erudite or dramatic work, the author of the work,
2. in case of musical work, the musician,
3. in case of a cultural work other than a snap, the artist,
4. in case of snap, the person who takes the snap,
5. in case of cinematographic film, the patron,
6. in case of sound recording, the patron, and
7. in case of erudite, dramatic, musical or cultural work which is computer generated, the person who causes the work to be created.
“Musician” in relation to musical work means the person who composes music anyhow to any form of recording in graphical memorandum. Still, the description of musician may not enable him to prove his authorship unless the composition is recorded in some form of musical memorandum or else.
“Musical work” means a work conforming of music and includes any graphical memorandum of similar work but doesn’t include any words or any action intended to be sung, spoken or performed with the music.
EXCEPTIONS TO THE GENERAL RULE – ‘AUTHOR IS THE FIRST OWNER’
According to Section 17, the author of the work is the first proprietor of brand therein. This is subject to the following statutory exceptions:
a) Literary, dramatic, cultural work − where the work is made by the author in the course of his employment by the owner of a review, magazine or analogous journal under a contract of service or internship, for the purpose of publication in a review, magazine or any similar journal etc., the said owner, in the absence of any agreement to the negative, will be the first proprietor of the brand in the work so far as it relates to the publication of the work in the review etc. or to the reduplication of the work for the purpose of its being so published. But in all the other felicitations the author will be the first proprietor of the brand.
b) Snap, oil, portrayal, drawing or cinematographic film − where a snap is taken, or an oil or portrayal is drawn, or a drawing or cinematographic film is made for a precious consideration at the case of any similar person, in the absence of any agreement to the negative, will be the first proprietor of the brand therein. Where, still, a person does any of the below in the course of his employment by the owner of a review, magazine or analogous journal under a contract of service or internship, for the purpose of publication in a review, magazine or any similar journal etc., the said owner, in the absence of any agreement to the negative, will be the first proprietor of the brand.
c) Work made in the course of employment − in the case of a work made in the course of author’s employment under a contract of service or internship, the employer (not being owner of a review, magazine or analogous journal), in the absence of any agreement to the negative, is the first proprietor of the brand.
d) Lectures delivered in public − where a person has delivered any address or speech in public that person will be the first proprietor of the brand therein. If the speech is delivered on behalf of some other person, similar other proprietor will be the first proprietor of brand. This is so indeed if the person who delivers the speech is employed by any other person who arranges similar address or speech or on whose behalf or demesne it’s delivered.
e) Government work − in the case of government work, the government, in the absence of any agreement to the negative, will be the first proprietor of the brand.
f) Work made on behalf of a public undertaking − in the case of work made or first published by or under the direction or control of any public undertaking similar public undertaking will, in the absence of any agreement to the negative will be the first proprietor of brand therein.
g) Workshop of certain transnational organisations − in similar cases the transnational organisations concerned will be the first proprietor of the brand.
EXEMPTION IN ‘FAIR DEAL’
Subject to certain conditions, a fair deal for exploration, study, review, review and news reporting, as well as use of workshop in library and seminaries and in the houses, is permitted without specific authorization of the brand possessors. In order to cover the interests of druggies, some immunities have been specified in respect of specific uses of workshop enjoying brand. Some of the immunities are the uses of the work.
- for the purpose of exploration or private study,
- for review,
- for reporting current events,
- in connection with judicial proceeding,
- performance by an amateur club or society if the performance is given to a non-paying followership, and
- the timber of sound recordings of erudite, dramatic or musical workshop under certain conditions.
ASSIGNMENT OF COPYRIGHT
An assignment is, in substance, a transfer of power, indeed if it’s partial. The brand proprietor in an being work or the future proprietor of the brand in a farther work may assign to any person the brand either wholly or incompletely, either generally or subject to limitation, either for the total of brand or any part thereof. However, the assignment will take effect only when the work is expressed and not simply an idea, If the brand assignment is for any unborn work. No bone can copy, reproduce, vend, or publish an original work without the creator’s authorization. Only the brand proprietor can transfer the power to a third party. Another essential thing to note is that with the assignment of a brand, the attorney shall also enjoy all the rights related to the brand to the assigned work. Section 18 of the Copyright Act specifies that where the attorney of brand becomes eligible for any right comprised in the brand, the attorney shall be treated as the proprietor of the brand concerning those rights. The bone who assigns shall also be treated as the brand proprietor concerning unassigned rights. In case of the death of the attorney, before the work comes into actuality, the legal representatives of the attorney will be entitled to the benefits of the assignment.
CURRENT STATE OF COPYRIGHT LAWS IN INDIA
Recent times have seen a considerable change in brand laws, especially with the rise of digital technologies. As a result, sweats have been made to strike a concession between the rights of the brand holder and the public rights. The perpetration of transnational covenants aiming at harmonizing brand laws across different nations, the extension of fair use exceptions, and the preface of new technologies for copyrighted work protection are some recent changes made in brand law. Brand legislation has grown more pivotal in the digital age for guarding creative workshop and making sure that their generators are fairly compensated. The convenience of copying and sharing digital content has also made it simple to partake workshop without authorization. A growing need for effective enforcement tools to help brand violation has redounded from this.
As mentioned, it’s understood that copyright law draws a line of distinction between power and authorship in India. Although the author will always be credited as the creator of the work that he or she has produced in the history, but ownership of the work may not inescapably remain with the original creator. The general rule that the author is the first proprietor has exceptions outlined in section 17, but if there’s a differing agreement between the parties in the course of employment, also the ownership can be altered grounded on this understanding.
- Bare Act of Intellectual Property Laws
- Book- Law Relating to Intellectual Property Rights by V.K. Ahuja
- https://egyankosh.ac.in/bitstream/123456789/51643/1/Unit-8.pdf – last visited on 20-09-2023
- https://corpbiz.io/learning/ownership-and-authorship-of-copyright-in-india/ – last visited on 19-09-2023
- https://www.intellectvidhya.com/authorship-and-ownership-of-copyright-in-india/ – last visited on 19-09-2023
- https://en.wikipedia.org/wiki/Copyright_law_of_India – last visited on 20-09-2023
 Ravencroft v. Herbert  RPC 193 at p. 204.
 Kartar Singh Giani v. Ladha Singh AIR 1934 Lah 777.
 Section 17 of Copyright Act, 1957.
 Law relating to patents, trademarks, copyrights and designs, Dr. B.L. Wadhera, Edn. 1999, Universal Book Traders.
 Section 2 (ffa) of the Copyright Act, 1957.
 Section 2 (p) of the Copyright Act, 1957.
 Section 17 (a) of the Copyright Act, 1957.
 Section 17 (b) of the Copyright Act, 1957.
 Section 17 (c) of the Copyright Act, 1957.
 Section 17 (cc) of the Copyright Act, 1957.
 Nicols Pitman  26 Ch D 374, where students were held not entitled to publish the notes of lectures which they have attended.
 Section 17 (d) of the Copyright Act, 1957.
 Section 17 (dd) of the Copyright Act, 1957.
 Section 17 (ee) and Section 41 of the Copyright Act, 1957.
 Supra Note 16.