WEEKLY EXERCISE FOR 20.08.2023 TO 26.08.

2023

Exercises on Authorship, ownership and statutory rights related to various copyrightable

works

EXERCISE 1:

1. What are the works capable of being protected in accordance with the provisions of
the Copyright Act, 1957? Specify.

In the given scenario, E as an responsible intellectual property lawyer is making an attempt to create
awareness to his friends regarding the protection of their work under Section 13 of the Copyright Act,
1957. Section 13, under Chapter III of the Copyright Act, 1957, provides for provisions related to the
different types of works protected by Copyright in India. The different types of works protected by
copyright are as follows:

(i) Original Literar Works

The Literary Works as defined under Section 2(o) of the Copyright Act includes the original or unique
creation of literature, which can be in any form like a work of fiction, technical books or paper,
biography, dramatics, thesis, script, research work, compilation, tables, and computer programmes
including computer databases. It can be claimed regardless of the style, quality, or literary merit of the
work.

(ii) Original Artistic Works

Section 2(c) of the act defines artistic works to include sculptures, paintings, cartoons, graphics,
lithographs, etchings, drawings, plans, photography, diagrams, models of buildings, charts, buildings,
maps, molds and casts for sculptures.

(iii) Original Dramatic Works

Dramatic Works are defined under Section 2(h) of the act which includes any arrangement of acting a
play, or a part for recitation, or choreographing work or dumb show entertainment, a picturesque
arrangement, or acting work based on a fixed writing work. But, the Dramatic works does not include
any type of cinematograph films.
(iv) Original Musical Works

Section 2(p) of the act defines musical works for which copyright protection is extended. Here, original
musical works means a work consisting of music and it includes graphical notation of such a work. The
words in a song and the music have separate rights and the rights cannot be merged.

(v) Sound Recordings

Sound recordings is defined under Section 2(xx) of the act to include any work of sound recording
irrespective of its storage medium. The songs which contain singers voice with or without music, a
recorded speech or an audio, or podcast is the examples of sound recording. In case the sound recording
also contains music, so the permission from the author of musical work is required to be obtained for
the Copyright protection of the sound recording.

(vi) Cinematograph Films

Section 2(f) of the Copyright Act defines cinematograph films to be a work of visual recording together
with the sound recordings accomplished by any process, whether digital or analogous, including the
video films. It also includes visual recording in any medium and by any way of storing such visual
recording. As per the definition of cinematograph films, every single recorded work with moving
images or visuals will be considered a cinematograph.

2. What would be the rights arising and accruing from these works?

Under the Copyright Act 1957, the owner possesses two types of rights arising from his/her work,

- Economical Rights and

- Moral Rights.

(i) Economical Rights

Section 14 of the Copyright Act guarantees certain rights which arise from the original works
mentioned under Section 13 of the act. This right is also known as the Exclusive Rights of the
copyright holder provided under Section 14.

- In the case of original literary, musical, and dramatic work:

● Right to reproduce;
● Right to issue copies;
● Right to perform at public;
● Right to make cinematography and sound recording;
● Right to make any translation;
 ● Right to adaptation; and
● Right to do any other activities related to the translation or adaptation.

- In the case, of computer program work:

● Right to do any act aforesaid mentioned; and

● Right to sell, rent, offer for sale of the copyrighted work.

- In the case of artistic work:

● Right to reproduce;
● Right to communicate;
● Right to issue copies;
● Right to make any cinematography and sound recording;
● Right to make an adaptation; and
● Right to do any other activities related to the translation or adaptation.

- In case of a cinematograph film work:

● Right to sell, rent, offer for sale of the copyrighted work; and
● Right to communicate.

- In the case of a sound recording work:

● Right to communicate;
● Right to issue copies; and
● Right to sell, rent, offer for sale of the copyrighted work.

(ii) Moral Rights

In addition to the protection of economic rights, the Copyright Act, 1957 conjointly protects ethical
rights, that is due to the actual fact that a literary or inventive work reflects the temperament of the
creator, just as much as the economic rights reflect the author’s need to keep the body and the soul of
his work out from commercial exploitation and infringement. These rights are supported by Article 6
of the Berne Convention of 1886, formally referred to as a world convention for the protection of
literary and inventive works, whose core provision relies on the principle of national treatment, i.e.
treats the opposite good as one’s own.

Section 57 of The Copyright Act,1957 recognize two types of moral rights which are:
 ● Right to paternity– which incorporates the right to assert the authorship of the work, and
the right to forestall others from claiming authorship of his work; and
● Right to integrity- which incorporates right to restrain, or claim of damages in respect of
any distortion, modification, mutilation, or any other act relates to the said work if such
distortion, multiplication or alternative act would be prejudiced to claimant honor or name.

In Mannu Bhandari v. Kala Vikas Pictures Ltd (AIR 1987 Delhi 13), the Bench attempted to strike a
balance between creative freedom of filmmakers and the moral rights of authors. The court held that
even though the plaintiff had transferred all her rights to the defendant, she still had moral rights over
the work. Moral rights are not only in literary works but also apply to films and documentaries.

3. In what capacity would these people be the right holders? What are the statutory
provisions that recognize them as right holders?

Section 17 of The Copyright Act, 1957 discusses regarding the author of the work to be the copyright
owners.

Under Section 2(d) of the act, the tem “author” is specifically defined to be,

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;

Under Section 17, there are certain exceptions laid down where the author of the work are not
necessarily the copyright owners.

These exceptions are,

Contract of Service:

- Section 17(a) – Literary, Dramatic & Artistic Work

This clause states that if an author creates a literary, dramatic, or artistic work while working for the owner
of a newspaper, magazine, book, or other publication under a contract for publishing such work, the owner
of such newspaper or magazine becomes the first owner of the copyrighted work, unless an agreement to the
contrary is in place.
Illustration – A journalist or writer working in a newspaper house is never the owner of the work he
produces; only authorship is his.

Section 17(c) states that if a work is made during the course of employment or a service contract, the
employer becomes the first owner of such copyrighted work.

In the well-known case of V.T. Thomas and Others vs Malayala Manorama Co. Ltd, the
employee, an artist, created a cartoon character prior to his employment with the publishing house
Manorama and continued to use it after his job terminated. The publishing house claimed that they
were the first owners of the copyright because the cartoon was utilized while the artist was working for
them. Although the cartoon was utilized by Manorama, it was not created by the artist during his
employment with them; hence he was the sole owner of the artwork.

In another case of Neetu Singh vs Rajiv Saumitra, the court agreed that the defendant had served as
a director of a company for two years, but the plaintiffs were unable to prove that the literary work
authored by the defendant was part of his employment obligations.

Contract for Service

- Section 17(b) states 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;
- Section 17(cc) states that in the case of any address or speech delivered in public, the person
who has delivered such address or speech or if such person has 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.
- Section 17(d) provides that in the case of a Government work, Government shall, in the
absence of any agreement to the contrary, be the first owner of the copyright therein;
- Section 17(e) 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 any
agreement to the contrary, be the first owner of the copyright therein;

Assignment of Copyright

Section 18 of the Copyright Act discusses “assignment of copyright.” The owner of the copyright in an
existing work or the prospective owner of future work has the right to assign to any person the
copyright of that work.

An assignment agreement shall have the following essentials:

 1. It shall be made in writing and identify the work assigned.

2. It shall specify the scope of rights assigned and consideration.

3. It shall mention the duration and territorial extent of such assignment.

In Saregama India Ltd v. Suresh Jindal, it was held that the owner of the copyright in a future work
may assign the copyright to any person either wholly or partially for the whole of the copyright or any part
thereof and once the assignment is made the assignee for the purpose of this Act is treated as the owner of
the copyright.

4. Who should own the rights in the photographs that C has clicked in his capacity as the
official photographer for the event?

Section 17(b) of The Copyright Act explicitly states 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 this particular situation, individual C functions as a photographer who has been contracted by the
school to serve as the official event photographer. While C falls under the category of the Author of
these photographs as defined in Section 2(d), the ownership of rights is not vested in C due to the
nature of the arrangement being on a work-for-hire or commissioned basis. The ownership of rights in
these photographs belongs to the school since they have engaged C's services, unless any different
agreement between the parties stipulates otherwise.

EXERCISE 2:

1. Their friend G, who has just arrived because of his busy schedule as an actor, wants to
know if he has any rights in the roles he has played so far in various movies.

Under the Copyright Act, 1957 in India, actors generally do not hold copyright in the roles they
portray in films or other creative works. Copyright in a film, including the performances within it, is
typically owned by the producer or the person who takes the initiative and financial risk to create the
film. This is established in Section 2(q) of the Copyright Act.

Actors are typically considered to be providing a service, and their performances are considered part of
the larger creative work (the film) rather than standalone works that would be subject to individual
copyright ownership.
However, it's important to note that actors may still have certain rights related to their performances
and how they are used. These rights are not necessarily derived from copyright law, but they may be
governed by other legal concepts such as contract law, personality rights, and specific agreements
between the actors and the producers.

2. D, as a musician, has worked on creating music for several movies. He wants to know if the
ownership of such musical works belongs to him and whether he can exploit these works or
not. Advise D.

Undet the Copyright Act, 1957, the composer owns the copyright for the musical composition. They
have the exclusive right to reproduce, perform, adapt, and Free music distribution with the world
which are guaranteed under Section 14 of the act.

Hence, the right to exploit his works for commercial purpose is vested upon him under the guise of
reproducing and performing his music. In addition to this, he also has performer rights guaranteed
under Section 38 of the act through which he is free to exploit his own original works.

3. For how long would the protection in these works subsist?

In case of original literary, dramatic, musical, and artistic works the time period of copyright in India is
60 years in addition to the author's lifespan. Further, the performer's right shall subsist until fifty years
from the beginning of the calendar year next following the year in which the performance is made.

4. What if someone doesn’t want to exploit his/her rights and wants their work to be
available in public domain for use by anyone? Explain.

The Indian Copyright Act doesn't specifically address public domain dedication, one can explicitly
state that they are waiving certain rights associated with your work. This would allow others to use
your work in ways that would typically be protected by copyright. Keep in mind that the scope of this
waiver should be clearly defined to avoid confusion.

Furthermore, not registering one’s work for copyright would automatically make the work available in
the public domain as damages can be claimed for infringement of copyright only upon registered work.
While the protection of copyright is vested upon a work by the virtue of its originality, the legal
remedies available in case of an infringement is only available for registered original works.
5. If E wishes to use a song created by B and used in his latest film, what should he do to
ensure that the usage made is not illegal?

To ensure that the usage of a song created by B in E's latest film is not illegal under the Copyright Act
of 1957 in India, E should follow proper legal procedures and obtain the necessary permissions or
licenses from the copyright holder, which is B in this case. Here's what E should do:

1. Obtain Permission from the Copyright Holder (B): E should contact B, who is the creator of the
song and the copyright holder. E needs to seek explicit permission from B to use the song in the film.
This can be in the form of a written agreement, contract, or correspondence.

2. Negotiate Terms and Compensation: E and B should discuss the terms of usage, including the scope
of usage, duration, compensation (if any), and any other conditions. A clear understanding of these
terms will help avoid future disputes.

3. Licensing Agreement: E and B should formalize the agreement in a licensing agreement. This
agreement should outline the permissions granted by B to E, including details about how the song will
be used in the film.

4. Specify Credit: The agreement should also specify how B should be credited for the song in the film's
credits.

5. Register the Agreement: While not mandatory, registering the licensing agreement with the
Copyright Office can provide additional legal evidence of the arrangement.

6. Adhere to the Agreement: Once the agreement is in place, E should strictly adhere to the terms
specified in the agreement, including the way the song is used in the film.

7. Respect Moral Rights: Although moral rights are not explicitly recognized in Indian copyright law,
it's a good practice to consider the moral rights of the creator, such as giving proper credit and not
using the work in a way that might harm the creator's reputation.

It's important to note that without proper permission or licensing, using the song in the film could
potentially lead to copyright infringement claims. The Copyright Act of 1957 grants creators certain
exclusive rights over their works, including the right to reproduce, distribute, and adapt their work.