1.
What are the works capable of being protected in accordance with the provisions
of the Copyright Act, 1957? Specify.
As an intellectual property lawyer, E shall try to make his friends and every other batch
mate in general, aware of their rights as per the applicable provisions of the Copyright Act,
1957. According to Section 13(1) of the Copyright Act, 1957, the following are the areas of
work which are copyrightable in their original essence-
● Original Literary Work: “Literary work”, as is interpreted under Section 2(o)includes
computer programs, tables and compilations including computer databases. It also
includes non-dramatic textual works with or without illustrations, speeches,
textbooks, reference works, directories, catalogs, advertising copy, games, etc.
● Original Artistic Work: Section 2(c) which interprets “Artistic work”, includes
painting, sculpture, drawing (including a diagram, map, chart or plan), an engraving
or a photograph, whether or not any such work possesses artistic quality; it also
includes works of architecture and other work of artistic craftsmanship.
● Original Musical Work: Under section 2(p) “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.
● Cinematograph Films: As per section 2(f) “cinematograph film” means any work of
visual recording and includes a sound recording accompanying such visual recording
and “cinematograph” shall be construed as including any work produced by any
process analogous to cinematography including video films.
● Sound-recording: As per section 2(xx) “sound recording” means a recording of
sounds from which such sounds may be produced regardless of the medium on which
such recording is made or the method by which the sounds are produced.
● Original Dramatic Work: “Dramatic work” under Section 2(h) includes any piece for
recitation, choreographic work or entertainment in dumb show, the scenic
arrangement or acting, form of which is fixed in writing or otherwise but does not
include a cinematograph film.
2. What would be the rights arising and accruing from these works?
The rights that would arise from these works are very well explained under Section 14 of The
Copyright Act.
Section 14 of the Act states, “copyright” means the exclusive right subject to the provisions
of this Act, to do or authorise the doing of any of the following acts in respect of a work or
any substantial part thereof, namely-
(a) In the case of a literary, dramatic or musical work, not being a computer
program-
(i) to reproduce the work in any material form including the storing of it in any
medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in
circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts
specified in relation tothe work in sub-clauses (i) to (vi);
(b) In the case of a computer program—
(i) to do any of the acts specified in clause (a); i.e.
a) to reproduce the work in any material form including the storing
of it in any medium by electronic means;
b) to issue copies of the work to the public not being copies
already in circulation;
c) to perform the work in public, or communicate it to the public;
d) to make any cinematograph film or sound recording in respect
of the work;
e) to make any translation of the work;
f) to make any adaptation of the work;
g) to do, in relation to a translation or an adaptation of the work,
any of the acts specified in relation to the work in sub-clauses (i)
to (vi);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental
any copy of the computer program:
(c) In the case of an artistic work—
(i) to reproduce the work in any material form including—
(A) the storing of it in any medium by electronic or other means; or
(B) depiction in three-dimensions of a two-dimensional work; or
(C) depiction in two-dimensions of a three-dimensional work;]
(ii) to communicate the work to the public;
(iii) to issue copies of the work to the public not being copies already in
circulation;
(iv) to include the work in any cinematograph film;
(v) to make any adaptation of the work;
(vi) to do in relation to adaptation of the work any of the acts specified in
relation to the work in sub-clauses (i) to (iv);
(d) In the case of a cinematograph film—
(i) to make a copy of the film, including—
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means
(ii) to sell or give on commercial rental or offer for sale or for such rental, any
copy of the film;
(iii) to communicate the film to the public;
(e) In the case of a sound recording—
(i) to make any other sound recording embodying it (including storing of it in
any medium by electronic or other means);
(ii) to sell or give on commercial rental or offer for sale or for such rental, any
copy of the sound recording;
(iii) to communicate the sound recording to the public.
The authors of original works will have the Moral rights with respect to the works created by
them. The Moral rights have been provided for under Section 57 of the Copyright Act and
cannot be transferred.
3. In what capacity would these people be the right holders? What are the statutory
provisions that recognize them as right holders?
Section 17 recognizes that usually the authors of the work are the copyright owners.
However, this has certain exceptions which are laid down under Section 17.
According to Section 2 (d) “author” means —
I. in relation to a literary or dramatic work, the author of the work;
II. in relation to a musical work, the composer;
III. in relation to an artistic work other than a photograph, the artist;
IV. in relation to a photograph, the person taking the photograph;
V. in relation to a cinematograph film or sound recording, the producer; and
VI.in relation to any literary, dramatic, musical or artistic work which is computer-generated,
the person who causes the work to be created;
Exceptions as laid down in Section 17
1) Employer-Employee Relationship (Contract of Service):
Section 17 (a) provides that in the case of a literary, dramatic or artistic work
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
similar periodical, the said proprietor shall, in the absence of any agreement to
the contrary, be the first owner of the copyright in the work in so far as the
copyright relates to the publication of the work in any newspaper, magazine or
similar periodical, or to the reproduction of the work for the purpose of its
being so published, but in all other respects the author shall 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.
Section 17 (c) provides that in the case of a work made in the 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;
2) Specially commissioned works (Contract for Service):
Section 17 (b) provides that in the case of a photograph taken, or a painting or
portrait drawn, or an engraving or a cinematograph film made, for valuable
consideration at the instance of any person, such person shall, in the absence
of any agreement to the contrary, be the first owner of the copyright therein;
In 1977 - Indian Performing Right Society Ltd. vs. Eastern Indian
Motion Pictures Association and Ors, the Supreme Court of India
clarified that the producer would be the first owner of a work made for hire
under Section 17. A specific paragraph in the case is reproduced
hereunder:
“18. This takes us to the core of the question, whether the producer of a
cinematograph film can defeat the right of the composer of music or
lyricist by engaging him. The key to the solution of this question lies in
provisos (b) and (c) to Section 17 of the Act reproduced above which put
the matter beyond doubt. According to the first of these provisos viz.
proviso (b) when a cinematograph film producer commissions a composer
of music or a lyricist for reward or valuable consideration for the purpose
of making his cinematograph film, or composing music or lyric therefore
i.e. the sounds for incorporation or absorption in the soundtrack associated
with the film, which as already indicated, are included in a cinematograph
film, he becomes the first owner of the copyright therein and no copyright
subsists in the composer of the lyrics or music so composed unless there is
a contract to the contrary between the composer of the lyrics or music on
the one hand and the producer of the cinematograph film on the other. The
same result follows according to aforesaid proviso (c) if the composer of
music or lyric is employed under a contract of service or apprenticeship to
compose the work. It is, therefore, crystal clear that the rights of a music
composer or lyricist can be defeated by the producer of a cinematograph
film in the manner laid down in provisos (b) and (c) of Section 17 of the
Act. We are fortified in this view by the decision in Wallerstein v. Herbert.
(1867) 16 L.T. 453 relied upon by Mr. Sachin Chaudhary where it was
held that the music ‘composed for reward by the plaintiff in pursuance of
his engagement to give effect to certain situations in the drama entitled
“Lady Andley’s Secret”, which was to be put on the stage was not an
independent composition but was merely an accessory to and a part and
parcel of the drama and the plaintiff did not have any right in the music.”
3) 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;
4) 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;
5) 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;
6) 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.
Section 18 - 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.
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, is the owner of copyright and the provisions of this Act shall
have effect accordingly.
4. Who should own the rights in the photographs that C has clicked in his capacity as
the official photographer for the event?
According to Section 17(b) of The Copyright Act, 1957, in the case of a
photograph taken, for valuable consideration at the instance of any person, such
person shall, in the absence of any agreement to the contrary, be the first owner
of the copyright therein.
In the given scenario, C is a photographer who’s been engaged by the school as the
official photographer of the event and so even though he’s the Author of such
photographs according to Section 2(d), he’s not the owner of the rights as it’s a work
for hire basis/ commissioned work. The rights in the photographs shall be owned
by the school, as they’ve hired C, unless any other agreement subsists between the
parties to the contrary.
