The person who conceives the concept and creates any literary, musical, cinematographic file, sound recording, photography or a computer-related work is known as author or creator. The author is the first owner of the copyrighted work; thus, it is essential to know who is an author for work. The term author has been defined for the various copyright works.
The owner of a copyright is a person who possesses the exclusive right in a copyrighted work and enjoys the same against the whole world. There are certain situations in which conflict in ownership in work arises under the Copyright Act,1957. These are enumerated as under.
In the case of copyrights created under a contract of service and contract for service; usually, there is no conflict in deciding whether a person is an employee or freelancer. Still, sometimes it becomes difficult to determine the actual status of the person working for the organization. Where a proprietor employs another to do the work for him under his control, and he directs the schedule of the completion of the work, the way the work needs to be delivered, the method which should be employed in delivering the work then the contract is considered as under the contract of service.
The person who is under the agreement of the service is called the employee of the company. So the test is when the employer is exercising a greater amount of direct control on the person who is working for him then that contract is a contract of service. The employers become the first owner automatically by virtue of the employer-employee relationship unless there is a contract to its contrary.
But there is an exception to the above rule. The employer does not become the first owner automatically by virtue of the employer-employee relationship where the work is literary, dramatic, musical, and artistic works, and the same is incorporated in any film. The author, who is an employee, will be the first owner of the work. A specific assignment of copyright in favor of the employer by the employee is required by the employer to become the owner of that work.
The ownership vest in the employer in all the works produced by the employee of the company during his employment but where an employee has left his employment and has created any work after that he is the creator of the work becomes the first owner, the previous employer has no right over it. Further, the copyright in work created by the employee in his own free time and not related to the profile for which the employer is hiring him belongs to him, and the employer has no ownership right in such work.
Where the employer allows another to do specific work and the other person completes the work independently without the significant control and supervision of the employer such a contract is called a service contract, and the other person is called an independent contractor.
A computer program is a set of instructions expressed in words, quotes, schemes, or any other form designed to perform a specific task. It may be registered as a literary work under the software category accompanied by source code and object code. The general rule is that the author of a work becomes the first owner of the copyright unless there is an agreement contrary to it.
A computer program is no exception to this general rule. Where an employee creates a computer program, not in the course of his employment but to discharge his duty effectively, then in such case that employee shall have the ownership right in the computer program developed by him as the said employee was not hired as a programmer by the organization. However, suppose the employee uses the equipment of the employer in creating such a computer program. In that case, the employer shall become the first owner of the copyright in that computer program unless there is a contract or an agreement contrary to it.
The author of Cinematograph film is the producer. The word producer is defined under section 2(uu) of the Copyright Act 1957 as “Producer, concerning a cinematograph film or sound recording means a person who takes the initiative and responsibility for doing the work.”
Confusion as to the ownership right in a cinematograph film arises because it is a work made with the contribution from various persons such as scriptwriter, lyricist, music director, composer, singer, dancer, actor, performer, etc. All these persons who contributed to the creation of cinematograph films have rights in work to the extent of their contribution to the work. Thus, a no-objection certificate or assignment agreement is needed from all these persons in favour of the person who is applying for the ownership of the copyright in a cinematograph film.
In the matter of Indian Performing Right Society Ltd. vs Eastern Indian Motion Pictures Association and Ors. (14.03.1977 – SC) : MANU/SC/0220/1977 the question before the hon’ble court was
Whether because of the provisions of the Copyright Act, 1957, an existing and future right of music composer, the lyricist is capable of assignment and whether the producer of a cinematograph film can defeat the same by engaging the same person. The court held that the producer of a cinematograph film can defeat the rights of a music composer or lyricist.
The said decision was made as per provisos (b) and (c) to Section 17 of the Act. According to the first of these provisos viz. proviso (b) when a cinematograph film producer commissions a composer of music or a lyricist for reward or valuable consideration for the purpose of making his cinematograph film, or composing music or lyric for example- the sounds incorporated or absorbed in the soundtrack associated with the film, which as already indicated, are included in a cinematograph film, the producer becomes the first owner of the copyright therein and no copyright subsists in the composer of the lyric or music so composed unless there is a contract to the contrary between the producer of the cinematograph film on the one hand and the composer of the lyric or music on the other.
The same view is upheld when the aforesaid proviso (c) is read where the composer of music or lyric is employed under a contract of service or apprenticeship to compose the work. It is, therefore, made very clear that the rights of a music composer or lyricist can be defeated by the producer of a cinematograph film in the manner laid down in provisos (b) and (c) of Section 17 of the Act.
But the Hon’ble court made an observation in the above-said case that the rights of all who are the created of a musical work deserve to be protected which eventually led to a change in the definition of musical work in 1994 vide amendment in the Copyright Act.
However, beyond exhibiting the film as a cinema show if the producer plays the songs separately to attract an audience or for other reasons, he infringes the composer’s copyright unless the composer has worked for the producer under a contract of service Section 17(c). Thus the composer retains his ownership rights if the composer has worked as an independent person under a contract for service for the producer of cinematograph film and the procedure cannot play music of his film separately in a restaurant or aeroplane or radio station or cinema theatre etc. to attract an audience without the permission of the composer.