The Copyright Act, 1957 uses two different terms for a work- ‘Authorship’ and ‘Ownership’. Is there a difference between the two? Can these two terms be used interchangeably? If you are a dialogue writer and are approached by a producer to write dialogues for his/her upcoming film, in exchange of a fee, will you be considered as an author or the owner of those dialogues?
Let us dive into the Copyright Act, 1957 (“Act, 1957”) to find out what is the fine line of difference between the two concepts.
A. The concept of ‘authorship’ Under The Copyright Act, 1957
Whenever a work, copyrightable under the law, is created, the author of such work is the first owner of such work (ref. Section 17 of the Act, 1957). Having seen that the law gives an author the recognition as the first owner of a copyrightable work, a crucial aspect to be considered is – who all are included under the term ‘author’.
The Act, 1957 under Section 2(d) defines who is an ‘author’ of a work. The authorship depends on the type of work and accordingly the said provision provides the following list-
a. For a literary/dramatic work- The author of the work
b. For a musical work- The composer
c. For an artistic work (except photograph)- The artist
d. For a photograph- The person taking the photograph
e. For a cinematograph film or sound recording – The producer
f. For any computer-generated literary, dramatic, musical or artistic work – The person who causes the creation of such work.
B. Authorship and Ownership – The Fine Line of Difference
If the Act, 1957 under Section 2(d) classifies who is an ‘author’ for various types of works, who is considered as an ‘owner’ of such works? The answer lies in Section 17 of the Act, 1957. The said provision primarily makes it clear that an author is the first owner of a work.
Having said that, it is pertinent to note that the Act, 1957 u/Section 17 also discusses, through two exceptions the fine line of difference between authorship and ownership. This could be better understood through the concept of (i) Contract of Service – i.e. work made/done during the author’s employment, (ii) Work made for valuable consideration.
Talking about the first concept, the employer of the author will always be considered as the first owner of the work created by the author, unless there is an agreement between the employer and the author about a contrary understanding. For example, if a cartoonist, employed for a film, creates a cartoon for the film, his/her employer shall be the first owner of such cartoon (unless there is an agreement to the contrary).
Talking about the second concept, in a situation where a photograph is taken, painting/portrait is drawn or an engraving/cinematograph film is made by a person on behalf of another person for consideration, the person causing such work to be created shall be the first owner of such work.
Ownership in copyrightable work can also be transferred by a person to another person by way of ‘assignment’ of copyright. The Act, 1957 under Section 18 expressly provides that ownership in an existing work or a future work, can be transferred by a person owning the work in existence or a prospective owner in a future work respectively. The same can be either wholly/partly and either for the entire term of copyright or any part thereof. The aforesaid comes with two exceptions/carveouts, one that in case of future work the ownership can be assigned only when such work will come into existence, second that the author of a literary or musical work included in a cinematograph film cannot assign his/her right to receive royalties except to the legal heir or a copyright society.
C. Judgments
a. Eastern Book Company v. D.B. Modak-
In this case, the court held that in cases of a work created by an employee in the course of his/her employment, the employer shall be the first owner of the copyright, save and except an understanding between the employer and employee stating otherwise.
b. V.T. Thomas v. Malayala Manorama-
In this case, certain cartoons were drawn by a cartoonist after his employment terminated with his employer (i.e. a magazine). It was held that the proprietor of the magazine could not claim any copyright in such cartoons since they were drawn after termination of employment.
Authors: Malabika Boruah, Tushar Gerewal & Riya Patil