What Is Copyright?
Copyright in India is an ownership right given by law to an author, creator of literary, music and artistic work, cinematograph films, and sound recordings. Some of the rights that come under Copyright include the right to reproduce work, communication of the work to public, adaptation of the work and translation of the work. The duration of the protection provided under the Copyright law varies with the nature of protected work.
However, in a 2016 lawsuit, the Delhi High Court stated that copyright is not an inevitable, divine, or natural right that gives authors the absolute ownership over their creations. Rather, it is designed to stimulate progress for intellectual ownership of their creations.
What Is A Copyright Licensing Agreement?
A Copyright Licensing Agreement is a contract under which a copyright owner allows another person or company to use their copyrighted material in several ways such as to:
- To re-print.
- To distribute it; and
- To use it for a separate amount of time.
In simple, a copyright licensing agreement defines in details as to how, where, and when the copyrighted work may be used. A Copyright owner of any work can grant a licence to authorise a third party to use and distribute a Copyrighted work. This licence may be either exclusive or non-exclusive.
Types Of Copyright Licensing Agreements
1) Voluntary Licence
An existing copyright owner or a prospective owner of the copyright in future may grant any interest in the right by way of licence. However, in case of a licence relating to copyright, such a licence will take effect only when the work comes into existence. If a person to whom a licence relating to copyright in any future work, dies before the work comes into existence, his/her legal representative shall be entitled to the benefit of the licence.
A Licence Agreement should have the following characteristics:
- Duration of the licence.
- The condition relating to revision, extension/termination of the licence.
- Identification of work and licenced rights.
In case there are disputes relating to licencing, it will be settled by the Copyright Board.
2) Compulsory Licensing
Compulsory licensing in regards to Indian work will be granted by the Copyright Board in the following circumstances.
If a copyright owner of any Indian work has published or performed in public has:
- Refused to republish or allow republication of work.
- Refused to allow communication of work to the public by broadcast or sound recording.
- Refused to allow performance of work in public and in case the work is withheld from the public.
Various Facets Of Copyright Assignment In India
What Is A Copyright Assignment?
A copyright assignment in India refers to the transfer/ assigning of ownership from a copyright holder to another person or organisation. Though a copyright holder who is the creator of a work may decide on signing an agreement over to a publisher, or record label. This usually occurs because publisher and record labels possess more resources than that of an author that prints copies of the work and distribute the work to a large set of audience. Most times, the publisher or record label may supply the author with a monetary advance so that the author can begin creating the work.
What Happens If You Assign Your Copyright To A Publisher?
Assigning ones copyright over to a publisher can sometimes be on the downside in scenarios such that you may receive only a part of what you would have received holding a copyright. This means that a person may lose a part of the creative control over his/her work. For example; the decision of turning a book into a movie may now rest with that of a publisher and not you.
An alternative of assigning a copyright to a publisher is that you can assign only a limited part of your work to a publisher. In some cases, one can retain a copyright and get business advantages from the publisher. However, there is ongoing debate as to who owns a copyright. Like any other contract/ agreement, a copyright assignment must be written to avoid any future confusion.
Legality Of The Transfer Of Copyright
The author of a work is the owner of the work unless he assigns a copyright to a publisher or someone else to be a partial owner of the work for a specific time. Transfer of copyright in future is mentioned under Section 18(1) of the Copyright Act, 1957 states that any prospective owner of a future work may assign his copyright. However, the recent amendment of 2012 made it clear that such an assignment will not extend to those mediums or modes of exploitation which did not exist at the time of assignment.
Modes Of Assigning A Copyright In India
Section 19 of the Copyright Act lays down the requirements to assign a copyright.
- No assignment of the copyright in any work shall be considered valid unless it is in writing and signed by the assignor/ his duly authorised agent.
- The assignment of copyright in any work shall identify such work, and specify the rights assigned, duration and territorial extent of such assignment.
- The assignment of copyright in any work shall also specify the amount of royalty and any other consideration payable, to the author or his legal heirs during the currency of the Assignment. The assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
- Where the assignee does not exercise the rights assigned to him/her under any of the other sub-sections within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period, unless, otherwise specified in the assignment.
- If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
- If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
- Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.
- The assignment of copyright in any work, contrary to the terms and conditions of the rights already assigned to a copyright society in which the author of the work is a member, shall be considered void.
- No assignment of copyright in any work to make a cinematograph film, affect the right of the author of the work to claim an equal share of royalties and consideration payable in case of utilisation of the work in any form other than for the communication to the public of the work, along with the cinematograph film in a cinema hall.
- No assignment of the copyright in any work to make a sound recording which does not form part of any cinematograph film shall affect the right of the author of the work to claim an equal share of royalties and consideration payable for any utilisation of such work in any form.
All of the above laws have come into force as a relief to authors that strengthens their position as new modes of exploitation of their work come into existence. These modes of exploitation keep changing due to scientific developments. For example; Initially, there used to be video cassette recorders and currently we have MP3 players, iPods, and other music players that are available. We cannot foresee the technological improvements that are yet to come in the near future and therefore the assignment of copyright that is made today will only cover those modes of exploitation that are available currently.
Disputes When Assigning Copyright In India
- If an assignee fails to make sufficient exercise of the rights assigned to him, and such failure is not attributable to any act or omission of the assignor, then, the Copyright Board may, on receipt of a complaint from the assignor and after holding such inquiry revoke such assignment.
- If any dispute arises with respect to the assignment of any copyright, the Copyright Board may, on receipt of a complaint from the aggrieved party and after holding such inquiry pass such order as it may deem fit including an order for the recovery of any royalty payable:
- Provided that the Copyright Board shall not pass any order to revoke the assignment unless it is satisfied that the terms of an assignment are harsh to the assignor in case the assignor is also the author.
- Provided further that, pending the disposal of an application for revocation of assignment under this subsection, the Copyright Board may pass such order, as it deems fit regarding the implementation of the terms and conditions of assignment including any consideration to be paid for the enjoyment of the rights assigned.
- Provided also that no order of revocation of assignment under this subsection shall be made within a period of five years from the date of such assignment.
- Every complaint received under sub-section (2) shall be dealt by the Copyright Board and efforts shall be made to pass the final order in the matter within a period of six months from the date of receipt of the complaint and any delay in compliance of the same, the Copyright Board shall record the reasons thereof.
Need A Copyright Assignment Agreement?
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