COPYRIGHT - Assignment, Adaptation, Registration & Rights

 ASSIGNMENT

A copyright assignment is when the copyright holder transfers ownership of the copyright to another person or organization.

The copyright holder is normally the person who created the work. Still, they may decide to sign the agreement over to a publisher (in the book industry or music industry) or record label (in the music industry). This occurs because publishers and record labels have more resources than an author to print copies of the work, distribute to a broader audience, and maintain other aspects of their career. Often, the publisher or record label may even supply the author with a monetary advance so the author can focus on just creating the work.

The downside of assigning your copyright over to a publisher is that you receive only a cut of what you would have received if you retain the copyright, and you may also lose some creative control. For instance, deciding whether to turn your book into a movie may now rest with the publisher and not you.

An alternative of transferring the entire copyright over to a publisher is licensing the work to them in a limited capacity. In this instance, you retain the copyright, but you also get the business advantages from the publisher. 

Debates have popped into court over who actually owns the copyright. So like any other contract, an assignment must be in writing to avoid any future confusion. 

Assignment of Copyrights can be made in whole or in part either generally or subject to limitations and either for the whole term of the copyright or any part thereof. 

In other words, you may assign away 50%, 1%, or 99% of your interest in that Copyright. Assignments may be integrated into a contract or maybe drafted separately. 

Mode of assigning copyright

It shall be in writing signed by the assignor or by his duly authorised agent. It shall identify the specific works and specify the rights assigned and the duration and territorial extent of such assignment. It shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

Period of assignment

If the assignment period is not stated, it shall be deemed to be five years from the date of assignment.

Assignment and License

A license is an authorization of an act which, without such authorization, becomes infringement.

In essence, a license is a grant of authority to do a particular thing that otherwise could not have been done.

It amounts to consent or permission granted by the owner of a copyright that the licensee could carry out a restricted act which but for such permission could have been an infringement.

Owner of copyright in an existing work or future work ‘may grant any interest in the right by license in writing signed by him or his duly authorized agent’ (S. 30)

K.A. Venugopala Setty v. Dr. Suryakantha U. Kamath AIR 1992 Kar 1.

It is the case of the plaintiff that he is the author of the book "A Concise History of Karnataka" and the manuscript of the same was given to the defendant for printing; that he had not assigned his copyright to the defendant and therefore, the defendant was and is not entitled to publish the book without assignment of the copyright in writing to him by the plaintiff; that when the book was printed and ready for publishing, the defendant came forward with the plea that the plaintiff had assigned the copy-right though no such assignment had been made by the plaintiff either orally or in writing; that as the defendant tried to publish the book claiming that the plaintiff had assigned the copyright of the book in question, the plaintiff had no other go but to seek relief as claimed in the suit.

Section 19 of the Act provides that: 

• An assignment of copyright should be in writing signed by the owner of the copyright.
• Mere acceptance of remuneration or delivery of manuscript does not constitute an assignment of copyright. 
• An oral assignment is invalid, and it is impermissible in law. (Section 19 requires that the assignment should be in writing signed by the assignor or by his duly authorized agent—if the assignment appears from any document and it is signed by the assignor or by his authorized agent, the statutory requirement is fulfilled.)

Assignment – Points to Ponder

Transfer of ownership of the rights

Assignment leaves nothing in the grantor *qua; the right assigned bestowing in the grantee the whole of the legal interest in the right. (*in the capacity of; as being)

Capacity to sue for infringement

A licensee cannot sue for infringement of copyright unless he joins the copyright owner as a co-plaintiff in the action.

Sec. 61. Owners of copyright to be a party to the proceeding.—

(1) In every civil suit or other proceedings regarding infringement of copyright instituted by an exclusive licensee, the owner of the copyright shall, unless the court otherwise directs, be made a defendant. Where such owner is made a defendant, he shall have the right to dispute the claim of the exclusive licensee.

(2) Where any civil suit or other proceedings regarding infringement of copyright instituted by an exclusive licensee is successful, no fresh suit or other proceedings in respect of the same cause of action shall lie at the instance of the owner of the copyright.

Rights in a musical sound recording

A sound recording generally comprises various rights, For example, the lyricist who wrote the lyrics, the composer who set the music, the singer who sang the song, the musician (s) who performed the background music. It is necessary to obtain the licences from each and every right owner in the sound recording. This would, inter alia, include the producer of the sound recording, the lyricist who wrote the lyrics, and the musician who composed the music.

Owner of copyright in works by journalists during the course of their employment.

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. Still, in all other respects, the author shall be the first copyright owner in the work.

Owner of the copyright in the case of a work produced for valuable consideration at the instance of another person

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.

ADAPTATION

In the law of copyrights, the exclusive right of the author of a literary project to reproduce, publish, and sell his or her work, which is granted by statute, adaptation refers to the creation of a derivative work, which is protected by copyright laws.

A derivative work involves a recasting or translation process that incorporates pre-existing material capable of protection by copyright. 

An adaptation is copyrighted if it meets the requirement of originality, in the sense that the author has created it by his or her own proficiency, labour, and judgment without directly copying or subtly imitating the pre-existing material. 

Mere minor alterations will not suffice.

The Copyright Act defines the following acts as adaptations:

Conversion of a dramatic work into a non-dramatic work

Conversion of a literary or artistic work into a dramatic work

Re-arrangement of a literary or dramatic work

Depiction in a comic form or through pictures of a literary or dramatic work

Transcription of a musical work or any act involving re-arrangement or alteration of an existing work.

The making of a cinematograph film of a literary or dramatic or musical work is also an adaptation.

Copyright over news

There is no copyright over the news. 

However, there is copyright over the way in which a news item is reported.

COPYRIGHT OFFICE

Section 9 of the Copyright Act requires for the establishment of an office to be called the Copyright Office for the purpose of the Act. The Copyright Office is to be under the immediate control of a Registrar of Copyrights to be appointed by the Central Government, who would act under the superintendence and directions of the Central Government.

The Copyright Office is currently located at the following address:

4th Floor, Jeevan Deep Building

Parliament Street

New Delhi - 110001

Telephone No. : +91-11-23362436

Copyright Board

Section 11 of the Act provides for the establishment of the Copyright Board and empowers the Central Government to constitute the same consisting of a Chairman and not less than two, but not more than fourteen members. 

The Chairman of the Board should be a sitting or retired judge of the High Court or a person qualified to be appointed as judge of the High Court. 

The Registrar of Copyright to act as Secretary of the Copyright Board. (The Copyright Board has no powers to limit the use of copyright to any particular territorial area. The appeal against orders passed by the Copyright Board to the High Court within whose jurisdiction the appellant resides or carries on business.)

Functions of the Copyright Board

The main functions of the Copyright Board are as under:

1. Settlement of disputes as to whether copies of any literary, dramatic or artistic work or records are issued to the public in sufficient numbers.
2. Settlement of disputes as to whether the term of copyright for any work is shorter in any other country than that provided for that work under the Act.
3. Settlement of disputes with respect to assignment of copyright as dealt with in Section 19A.
4. Granting of compulsory licences in respect of Indian works withheld from the public.
5. Granting of compulsory licence to publish unpublished Indian works.
6. Granting of compulsory licence to produce and publish the translation of literary and dramatic works.
7. Granting of compulsory licence to reproduce and publish literary, scientific or artistic works for certain purposes.
8. Determination of royalties payable to the owner of the copyright.
9. Determination of objection lodged by any person as to the fees charged by Performing Rights Societies.
10. Rectification of Register on the application of the Registrar of Copyright or of any person aggrieved.

REGISTRATION OF A COPYRIGHT

Chapter VI of the Copyright Rules, 1956, as amended, sets out the procedure for the registration of a work. 

The procedure for registration is as follows:

• Application for registration is to be made on Form IV ( Including Statement of Particulars and Statement of Further Particulars) as prescribed in the first schedule to the Rules ;
• Separate applications should be made for registration of each work;
• Each application should be accompanied by the requisite fee prescribed in the second schedule to the Rules; and
• The applications should be signed by the applicant or the advocate in whose favour a Vakalatnama or Power of Attorney (neither notarization nor consular legalization required) has been executed. 
• A power of attorney signed by the party and accepted by the advocate should also be enclosed.
• Both published and unpublished works can be registered.
• Three copies of published work may be sent along with the application. 
• If the work to be registered is unpublished, a copy of the manuscript has to be sent along with the application for affixing the stamp of the Copyright Office in proof of the work having been registered. 
• In case two copies of the manuscript are sent, one copy of the same duly stamped will be returned, while the other will be retained, as far as possible, in the Copyright Office for record and will be kept confidential. 
• It would also be open to the applicant to send only extracts from the unpublished work instead of the whole manuscript and ask for the return of the extracts after being stamped with the seal of the Copyright Office.
• If the work is a Computer programme, in addition to the above 3 Copies of the work in CD or Floppy Diskette must be provided.

Steps involved in getting a copyright registration certificate:

1. The application with complete details is filed.
2. Thereafter, the application is examined, and objections, if any, are raised.
3. The certificate is issued by the copyright office after the objections, if any, are removed to the satisfaction of the department.
4. When a work has been registered as unpublished, and subsequently it is published, the applicant may apply for changes in particulars entered in the Register of Copyright in Form V with a prescribed fee.

PERFORMER'S RIGHTS

As per the Indian Copyright Act, a "Performer" includes an actor, singer, musician, dancer, acrobat, juggler, conjurer, snake charmer, a person delivering a lecture or any other person who makes a performance.

"Performance" in relation to performer’s right means any visual or acoustic presentation made live by one or more performers.

Rights of a performer:

A performer has the following rights in his/her performance:

• Right to make a sound recording or visual recording of the performance;
• Right to reproduce the sound recording or visual recording of the performance;
• Right to broadcast the performance;
• Right to communicate the performance to the public otherwise than by broadcast.
• Performer’s rights subsist for 25 years.

Protection of Foreign Works

The Indian Copyright Act today is compliant with most international conventions and treaties in the field of copyrights. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright Convention of 1951 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. 

Though India is not a member of the Rome Convention of 1961, the Copyright Act, 1957 is fully compliant with the Rome Convention provisions. 

Copyright of nationals of countries who are members of the Berne Convention for the Protection of Literary and Artistic Works, Universal Copyright Convention and the TRIPS Agreement are protected in India through the International Copyright Order.

The Berne Convention and the TRIPS Agreement stipulate the subsistence of copyright in original literary, dramatic, musical and artistic works; cinematographic film and sound recordings. 

These classes include a variety of works like books, pamphlets and other writings; lectures, addresses, sermons; dramatic or dramatic-musical works, choreographic works; musical composition, chirographic works; drawing, painting, architecture, sculpture, engraving; and lithography, photography, maps, plans, sketches, three-dimensional works, translations, encyclopaedias and anthologies, software codes, multimedia productions, etc.

Statutory Licence for Cover Versions

Section 31C (1) provides that any person desirous of making a cover version, being a sound recording in respect of any literary, dramatic or musical work, where sound recordings of that work have been made by or with the licence or consent of the owner of the right in the work, may do so subject to the provisions of this section.

However, such sound recordings shall be in the same medium as the last recording, unless the medium of the last recording is no longer in current commercial use.

The person making the sound recordings required to give prior notice of his intention to make the sound recordings in the manner as may be prescribed, and provide in advance copies of all covers or labels with which the sound recordings are to be sold, and pay in advance, to the owner of rights in each work royalties in respect of all copies to be made by him, at the rate fixed by the Copyright Board.

It may be noted that such sound recordings shall not be sold or issued in any form of packaging or with any cover or label which is likely to mislead or confuse the public as to their identity, and in particular shall not contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated and, further, shall state on the cover that it is a cover version made under this section.

The person making such sound recordings shall not make any alteration in the literary or musical work which has not been made previously by or with the consent of the owner of rights or which is not technically necessary for the purpose of making the sound recordings. 

However, such sound recordings shall not be made until the expiration of five calendar years after the end of the year in which the first sound recordings of the work was made.

It may be noted that the cover version means a sound recording made in accordance with this Section 31C of the Act.

Statutory Licence for Broadcasting of Literary and Musical Works and Sound Recording

Section 31D provides that any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published may do so subject to the fulfilment of prescribed conditions.

The broadcasting organisation required to give prior notice in the prescribed manner of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and pay to the owner of rights in each work royalties in the manner and at the rate fixed by the Copyright Board.

The rates of royalty for radio broadcasting shall be different from television broadcasting, and the copyright Board shall fix separate rates for radio broadcasting and television broadcasting and the broadcasting organisation to pay an advance to the owners of rights.

The broadcasting organisation required to maintain such records and books of account, and render to the owners of rights such reports and accounts; and allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast in prescribed manner.

Licence to Produce and Publish Translations

Section 32 entitles any person to apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work. 

However, in respect of teaching, scholarship or research, Section 32(1A) allows any person to apply to the Copyright Board for a licence to produce and publish a translation, in printed or analogous forms of reproduction, of a literary or dramatic work, other than an Indian work, in any language in general use in India after a period of three years from the first publication of such work. 

Further, where such translation is in a language not in general use in any developed country, such application may be made after a period of one year from such publication.

Termination of Licence

Section 32B of the Act deals with termination of licences and provides that if at any time after the granting of a licence, the owner of the copyright in the work or any person authorised by him publishes a translation of such work in the same language and which is substantially the same in content at a price reasonably related to the price normally charged in India for the translation of works of the same standard on the same or similar subject, the licence so granted shall be terminated. 

However, such termination shall take effect only after the expiry of a period of three months from the date of service of a notice in the prescribed manner on the person holding such licence by the owner of the right of translation intimating the publication of the translation.

Copyright Societies

Under clause (3) of Section 33 Central Government has been authorised to register association of persons as copyright society after taking into account the following factors:

1. the interests of the authors and other owners of rights under the Copyright Act;
2. the interest and convenience of the public and in particular of the groups of persons who are most likely to seek licences in respect of the relevant rights; and
3. the ability and professional competence of the applicants.

However, an owner of copyright in his individual capacity continues to have the right to grant licences in respect of his own works consistent with his obligations as a member of the registered copyright society.

The Central Government cannot register more than one copyright society to do business in respect of the same class of works.

The Central Government has been empowered to cancel the registration of a Copyright Society if its management is detrimental to the interests of the owners of rights concerned. 

The registration can also be suspended by the Government for a period of one year if it is necessary in the interest of the owners of the rights concerned, and the government has to appoint an administrator to discharge the functions of the Copyright Society.

Copyright Society is a legal body that protects or safeguards the interest of owners of the work in which copyright subsist. The Copyright Societies gives assurance to the creative authors of the commercial management of their works. 

The authors of creative works licence a publisher to publish the work on a royalty basis. This may lead to infringement of the work anywhere in India or abroad as it is extremely difficult for the owner of the work to prevent such infringement. To overcome such difficulty, owners of Copyright works have formed Societies to licence their works for performance or communication to the public or issue copies of the work to the public. 

The Copyright societies are also authorized to watch out for infringement of the copyright and take appropriate legal action against the infringers.

Section 34(3) empowers the Copyright Society to:

1. issue licences under Section 30 in respect of any rights under the Act;
2. collect fees in pursuance of such licences;
3. distribute such fees among owners of rights after making deductions for its own expenses; and
4. perform any other function consistent with the provisions of Section 35.

FUNCTIONS OF A COPYRIGHT SOCIETY:

• It grants the license of the Copyright in the work for reproduction, performance or communication to the public.
• It locates the infringement of the Copyright and initiates legal proceedings.