32

Author and Ownership of Copyright

The concepts of 'author' and 'ownership' are vital when the
propriety over the copyright arises. The copyright provisions do not
copyright in an idea. The originator of an idea is not the owner of
questio
recOgise an
copyright belongs to the person who gives concrete form to the the copyrWri ites;
book, paints a picture or makes a film borrowing from the idea ifidea,
suche.ang-,
been communicated to him by another. idea ha
In Donoghue v. Allied Newspapers, (1937) 3 All ER 503, the view
"since there is no copyright in ideas even if they are original, the expressed
originator:w;
brilliant idea is not the owner of the copyright in the work, unless he is a
creator of the work". Thus, ifa person has a brilliant idea for a story, plav
picture and if he communicates that idea to an author or play writer or an
the production based on that idea is the copyright of the artist who has clothet h
idea in aform whether by means of a book, play or picture and the originator of t
idea has no right in the product, for which copyright subsists.
According toprovisions of section 17 the author of the work is the first ownert
the copyright in the work. To understarnd as to who is considered the author of tht
work, section 2(d) needs to be read. It defines 'author in relation to vario:
categories of works as follows:
1. Literary or dramaticwork, the author of the work.
2. Musical work, the composer in relation to amusical work means th:
person who composes the musicregardless of whether he records it in a
form of graphical notation- section 2(ffa).
According to section 2(p) a 'musical work' means a work consistug
music and includes any graphical notation of such work but does
include any words or any action intended to be sung, spoken orj performe
with the music.
3. An artisticwork other
4. Photograph,the
than a photograph, the artist.
5. person who takes the photograph.
6. Cinematograph the the producer.
Sound
film,
recording, producer.
7. Literary, dramatic, musical or artistic work which is computer 8generated
the person who
causesreport
The author of a newspaper the work to be
is the person who writes it and not the /persa
created.
supplying the news. Ajournalist who writes a news story on the life storyo'
another on the basis of such a
published. narration made to him is the author of thestorys
 Awtthorand
Ownership of Copyright
Nationalityrequirement for
299
ownership of copyright of the entitlement of
Thenationality of an author is not the prime determinant
theauthorto a copyright under the Indian Act. However, the subsistence of
requirements under section 13(2).
copyrighthas certain
Published work---In case of a published work,
()i nIndia or when published outside India, thethe work must be
author must be a published
India at the date of publication (if alive at that date) or if dead at thecitizen of
his death. time of
(i) Unpublished work (other than architectural work)-Theauthor at the tirne
must be a citizen of India or domiciled
of makingthe work
the making of an unpublished work is extended over ina India where
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, this is provided in
section 7 of the Copyright Act.
st) Architectural work-The work must be located in India only then can it be a
subject of copyright protection.
OWNERSHIP OF COPYRIGHT
Section 17 statutorily recognises the author of the work to be the firstowner of
the copyright therein. This ishowever, subject to some exceptions.
These are discussed as belOw for each kind of creative work.
dramatic or artistic work
Literary,
Section 17(a) provides
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 ina newspaper,
magazine or periodical, the said proprietor, in 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
purpose of
similar periodical or to the reproduction of the work for the
first owner
being so published. Except in such cases, the author will be the
of the copyright in the work.
1 Ker LT
In V.T. Thomas v. Malayala Manorama Co. Ltd.,AIR 1989 Ker 49: (1988)
433, it was held that in case of termination of the employment, the employee IS
subsequently and the
eutied to the ownership of copyright in the works created
Omer employer has nocopyright over the subsequent works so created.
time and not in the
opyright in a work done by an employee on his own
Course of his employment belongs to him.
Photograph,
Section 17(b)painting,
provides portrait
painting or aportrait at
drawn, Othe
wiere a photograph is taken or a for valuable
consideration at
engraving or a cinematograph film made,the absence of any agreement
to
instance of any person, such person, in therein.
the contrary,shall, be the first owner of the copyright
 300 Intel ectul Proget
of employment
Work made in the course
Section 17(C) provides course of the
the
Where a work is made inapprenticeship, the author's employment
or
proprietorof ofservice
contract
employer (not
a newspaper, magazine or periodical) in absence te
contract to the contrary, the employer will be the first owner of he beingunder
created.
copyrightin the work so
Lectures delivered in public
Section 17(cc) provides-
Where any person has delivered any address or speech in public tha
person will be first owner of the copyright. Ifthe address or speech is
delivered on behalf of any other person, such other person will be the
Owner of the copyright therein.
Government work
Section 17(d) provides
the owner of s.
In the case of Government work, the Government is
copyright in the absence of an agreement to the contrary.
Work made on behalf of a public undertaking
Section 17(dd)
By the Amendment Act of 1983, the Copyright Act came to contain this
direction or
provision, in case of a work made or first published by or under the absence oi
in the
controlof any public undertaking,such publicundertaking shall,therein.
any agreement to the contrary, be the first owner of the copyright
Public sector undertaking means:
(i) An undertaking owned andcontrolled by Government;
(ü) AGovernment company as defined in the Comparies Act, 1956; or
(iüi) A body corporate established by or under any Central or Provincial or
State Act.
Government will include both Central and State Governments.
Work of certain international organisation
Section 17(e) provides
When a work is considered to be a work of certain internation
organisations under the provisions of section 41, in such cases
international organisation concerned shall be the first owner of u
copyright therein.
Ownership of copyright in a commissioned work or work created at
the instance of another
Work created at the instance of another for a valuable consideration belong
Commissioned
the provider of such valuable consideration. Examples of such
works are: person writing areport on a subject as a part of a research project being
conducted by the company, a compOser composing a Song for afilm company,a
painter drawing aportrait at the instance of another person.
Apprenticeship
An apprentice is a student.
In Dunk v. George Waller, (1970) 2 WLR 241, it was held that an apprentice ethe
student bound to another for the Purpose of learning his trade or calling
 of Copyriglht 301
and Ownerslhip
Author that the master teaches and the other serves the
beingof such
a nature
contract the intention of learning.
Hence, the work belongs to the teacher.
masterwith
Shorthand writer
down the matter dictated verbatim by a
shorthand writer takes is the author and copyright owner of the person,
work.
the
Ifthewhodictated the matter
person
Employee teacher a book on the
employee teachingin a school, college or university writes owner of the
If an teaches or on anything else, he is the author and the
subject hebecause he isemployed to teach and not to write text books.
copyright examination
papers of an
Question in examination question papers vestsin the paper setter
Ownership copyright The paper setter in such a case is the
contract to the contrary exists.
where no
and not the Board of Examination or the authority for whom the
authorand oWner
set.
questionpapers are
Collective works
dictionary, year book, newspaper,
Collective works include encyclopaedia,works or parts by different authors are
magazine or generally a work in which
first owner of the copyright in the collective work as a whole is a
incorporated.The organised the work.
and
person whohas collected, edited
Musical work
musical work is the composer of the work. If
The first owner ofa copyright in a employment under a contract of service, the
is composed in the course of
the work
first owner of copyright. The person who commissions a
employer will be the
who commissions a music composer to
musical work, for example, a film producer the owner of the copyright but only
for his film does not become
compose the music purpose for which it is commissioned.
The
to use the work for the are
the music in his film. Allother rights
gets a licence
producer only gets the right to incorporate
retained by the music composer.
Artistic work
owner of copyright.
(a) The artist who created the work is the first employment unless a contract to
course of
(0) Where the work is created in the the owner of the copyright.
the contrary exists, the employer will be
employer is the owner of a newspaper, magazine, he possesses
9 where the publication in the newspaper or
Only a limited right to use the work for
magazine. commissioned work for valuable
(d) When the creation of artistic work is a owner of the
commissioned the work is the
consideration, the person who
copyright.
Plan
copyright of the architedt
of a building or astructure is the
contrary.
Whero agreemnent to the He
ownership of Copyright can be eliminated only by anexcept for his own study.
The client is not authorised to make copies ofthe plan extension of the building
cannot use the pre-existing plan even for making an
cOnstructed on the basis of the previous plan.
302

Photograph
Within the meaning of section 2(s) photograph includes
Intel ectual Propety
work produced by any process analogous to photography but does
cinematograph film. not or
(a) The person taking the photograph is the owner of copyright.
(b) Where the photograph is taken for a valuable
photolithographinciudea
consideration
at he
of any person, such a person in the absence of any agreemernt
contrary, is the first owner of copyright therein.
(c) Where the photographer takesa photograph in the course of em
insta
to hene
by a proprietor of a newspaper or magazine under a contract off
apprenticeship tor the purpose of publication in the
magazine; the said proprietor is the first OWner of
se
newspaperrvice ox

copyri
photographin so far as the copyright relates to the publication gofhttheinbeththee
in any newspaper or magazine. In all other respects, the author will Work
first owner of the copyright in the photograph.
THE DISTINCTION BETWEEN CONTRACT OF SERVICE
ANDCONTRACT FOR SERVICE
The author may create work independently or he may create a work under a
contract of service or contract for service.
Contract of service
Where a man employs another to do work for him under his control so that he
can direct the time when the work shallbe done, the means to be adopted to bring
about the end, and the method in which the work shall be arrived at, then the
Conract is a contract of service.
WIn Beloff v. Pressdram, 1973 RPC765, it was decided that the true test is whether
on one hand the employee is employed as part of the business and his work is an
integral part of the business or whether his work is not integrated into the busines
but is only accessory to it or the work is done by him in business on his own
account. In the former case, it is contract of service and in the later case, it is a
contract for seryice.
In the case of contract of service, the status of the author is that of an employe.
in the
For examnple, whenever an employee of a solicitor'sfirm drafts adocument
course of his employment, the employer is the first owner of copyright.
Contract for service
If a person employs another to do a certain work but leaves it to the other 0
decide how that work shall be done, what steps shall be taken to produce i
desired effect,
contractor whothen it is decides
himself acontract for service.
about His status
the manner is that
of doing ofin
work, ansuch
indepen
casesthe
copyright vests in him and not the employer. For example, an architect whocase 1s te
by the company to construct a plan for their new building. In such a
copyright vests in the architect himself.
In the case of University of London Press v. Tutorial Press, (1916) 2 Ch 601, it was
declared that theservices of an independent contractor are hired tor creating question
doing a work on a given subject. It was held the examiner who prepares at his
papers for a University
Convvenience so long
or college was free to prepare his questions
as they were ready by the time appointed for the examination,
and it was left to his skill and judgemernt to decide what questions should be
asked, having regard to the syllabus, the book work and the Standard ot
Awthor
andOwnership of Copyright
303
expected at the
aspectofthe matter.the examniner matriculation
Anowledgetobe was not acting examination and in view
under the "contract of this
for service".
Hence he was anindependent contraclor owning a copyright over the question
raper.
QUANTUM OF EXTRACTS OR "FAIR
DEALING"
The production of whole work or a substantial portion of it as such will not
normallybe permittedand only extracts or quotations from the work will alone be
permitled evenas"fair dealing". In the circumstances, the quantum of extracts or
quotations pernissible will depend upon the circumstances of each case. It may
proper to lay down any
hard and fast rules to cover all cases where
intringement the
of copyright is alleged on the basis of extracts or quotations from the
not be
copyrighted work. Ín a case like the one on hand, Court will have to take into
considerationthe followings : (1) the quantum and value of the matter taken in
relationtothe comments or criticism, (2) the purpose for which it is taken, and (3)
thelikelihood ofcompetition between the two works. It is only when the Court has
determinedthat assubstantial par: has been taken, that any question of fair dealing
this question arises, the degree of substantiality, that is to say,
arises. Thoughonce
quantity and the value of the matter taken, is an important factorin considering
the
whether or not there has been a "fair dealing". whether a
Eurther, it is thought that evern under the personal law, in considering
work was fair, it would have to be considered whether
dealing with a particular
any competition was likely to exist between the two works.necessarily
But each case will
be fair in
may be fair in one case will not
depend on its. facts, and whatreview may relate not only to literary style but also to
another case. The ariticism or expounded in his book. Afair criticism
be doctrine or philosophy of the another as books or documents would constitute "fair
of the ideas and events described in the
dealing". defined as such in the Act. But
Moreover, the term "fair dealing" has not beendealing" of the work and not to
section 52(1)(a) and (b) specifically refers to "fair that the
reproduction of the work. Accordingly, it may be reasonable to hold will not
substantial portion of it as such
reproduction of the whole work or a quotations from the work will alone be
and only extracts or
normally be permitted
permitted even as "fair dealing".
LAW
PIRACY AND COPYRIGHT
problem due to the rapid advancesthe in technology. It
Piracy has become a global countries are
alarming proportion all over the world and all
has assumed
the challenge by taking stringent legislative and enforcement
trying to meet
measures.
piracy, namely, piracy of the printed word,
There are mainly three types of cinematograph films. The object of the
recordings and piracy of of legitimate
pracy of sound and avoid payment to seven
pirate in all such cases is to make quick money estimated that six hundred the
taxes and royalties. In respect of books, it is of the pirated titles,
on each
hundred titles are pirated every year in India and T.V.
loss of Government is in form of tax evasion. of filns and
and video cassettes
massive scalein and
many
Apart from books, the recorded music and on a
distributed
programmes are reproduced, remuneration
sold
authors, artists,publishers
to the
parts of the world without any
producers concerned.
304

The emergence of
Intel ect
new technique of recording, fixation and reprod.
ual Property
audio programnme combined with advent of video technology have
the pirater. It is also estimated that the losses of the film producers greatly helpe,
and otherin
OWners of copyright amount to several crores of rupees. The loss ofofGovernment
terms of tax evasion also amounts to crores of rupees. In addition,
because
recent video boom in the country, there are reports that uncertified video fil of fhe
exhibited on a large scale. A large number of video parlours have al
being
up all over the country and they exhibit such films recorded on video
charging admission fees from their clients. tapessprugb