- Copyright is a sui generis right, a right which exists immediately upon its creation. Therefore, this right is very closely associated with the author of the work. Unlike trade mark where the person who has coined the mark is not generally known, identified or mentioned during the registration or enforcement action, the author plays a significant role and finds specific mention during both registration and enforcement action.
- In certain kinds of work, the author is considered as the first owner of the work, whereas in certain other kinds of work the producer of the work is considered as the first author of the work. It is therefore significant that there should be written assignment or other documents in place so that copyright is properly acquired from the author of the work.
- The importance of pleading the identity of the author and mentioning assignment from the author can be seen in the judgment in the case of Tech Plus Media Private Limited vs. Jyoti Jadia & Ors., when the suit was dismissed for not mentioning the chain of title from the author of the work. The Delhi High Court held that:
20.......The plaintiff is a juristic person and is incapable of being the author of any work in which copyright may exist. However, the plaintiff can be the owner of a copyright under an agreement with the author of the said work. For the plaintiff to maintain the present suit, it is incumbent upon the plaintiff to disclose the said work and the author thereof and the agreement under which the author has made the plaintiff the owner of the copyright in the said work. The plaintiff has not done so..... of the material facts required to be pleaded in an action for infringement of copyright to show a right to sue, lacking in the plaint."
- Section 17 of the Copyright Act, 1957 concerns the first owner for each of the work concerned.
- In the case of a literary, artistic, dramatic or musical work, the author is the first owner of the work. Literary work includes books, computer software, contents published online, speeches delivered in public.
- In the case of a a photograph, sculpture, drawing including architectural drawings, plan or engraving, the author is the first owner of the work.
- In the case of cinematographic work, the producer is the first owner of the work. However, the author of the lyrics, music, artistic and dramatic work which is incorporated in the cinematographic work, the author shall retain their right for other purposes. In the case of sound recording, the producer is the first owner of the work.
- Similarly, where any of the above work, viz. literary, dramatic, artistic work or photographs have been instituted by any person under a contract, such person is the first owner of the work for the purpose for which the contract was entered into. For all other purposes, the author shall be the first owner of the work.
- For a work created by any employee in the course of employment, the employer is the first owner of the work. The words "in the course of" have been subject of intense confrontation when the employee asserts that the work was not created during the employment. Similarly, work created by a partner during the course of his business shall vest in the partnership. A draft prepared by a lawyer during the course of his employment or engagement in a firm vest in the law firm or employer.
- In the case of a work created under a Contract of service the first owner is the person who has instituted the service. It is akin to an employee – employer relationship, where the employer has full control over the object of the work as well as the manner in which it is to be achieved. Whereas in the case of a work created under a Contract for service, the first owner is the author. Under this, the author has the discretion to adopt means for execution of a work. The difference in treatment for the two works is on account of the discretion in the author while creating the work. Hence, the first owner is also different in certain circumstances
- In the case of speech delivered in public, the person who has delivered such address is the first owner of the work irrespective of the same being delivered as an employee or when it is arranged by another person.
- The Copyright Office insists on production of assignment deed from the author of work in most of the works. Employment agreement with the author will again show that the employer is the owner. For instance, in the case of cinematograph work, assignment / no objection declaration is to be filed from the actors, music composer, lyrics writer etc.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.