Sunday, February 27, 2011

Does the Copyright Act Apply to Unpublished works?- I

I have had this doubt about the status of unpublished works under the current copyright regime for quite some time now. 

Although Sections 22 and 23 of the Copyright Act, 1957 spell out the term of published works, anonymous and pseudonymous works, there doesn’t seem to be any reference to the term of unpublished works. Why? Are unpublished works not protected by copyrights?

I must give a disclaimer here: my research on this point has been very limited, so if I have missed any judgment or opinion which sheds light on this issue in the Indian context, I’d be more than happy to stand corrected.

Let’s take a look at Sections 22 and 23(1) here:

22. Term of copyright in published literary, dramatic, musical and artistic works- Except as otherwise hereinafter provided, copyright shall subsist in any literary, dramatic, musical or artistic work (other than a photograph) published within the lifetime of the author until sixty years from the beginning of the calendar year next following the year in which the author dies. Explanation.- In this section the reference to the author shall, in the case of a work of joint authorship, be construed as a reference to the author who dies last.

23. Term of copyright in anonymous and pseudonymous works- In the case of a literary, dramatic, musical or artistic work (other than a photograph), which is published anonymously or pseudonymously, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published:

Provided that where the identity of the author is disclosed before the expiry of the said period, copyright shall subsist until sixty years

In all the situations envisaged under both these provisions, the reference is to a work that is published (in fact under Section 22, publication must occur within the lifetime of the author) . In others words, subsistence of the copyright is tied or connected to the factum of publication.

Does this mean that the 60 year limit on the term of the copyright is applicable solely to published works, and not to unpublished works? If yes, does it follow that there is no limit on the term of the copyright for unpublished works? Or does it follow that there is no copyright in an unpublished work in the first place?

The first consequence seems to go against legislative intent of restricting the term of IP rights. Not just that, it also appears to violate the quid pro quo equation that governs all forms of IP i.e. if enablement, disclosure and use of the invention govern grant of patents, and continuous use governs a trademark right, there must be some requirement on similar lines when it comes to copyright too.

That requirement could be publication i.e. unless the work is published and is accessible to the public, an author/owner cannot expect an IP right such as copyright in return. What this could mean is that mere creation does not vest a work with copyright, publication is necessary for copyright to subsist in the work. 

Does this mean the Indian Copyright regime is not a common law regime, but a statutory regime? It probably is statutory; Section 16 of the Act certainly seems to say so. Section 16 says:

16. No Copyright except as provided in this Act- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence.

A literal interpretation of Section 16 makes it clear that there is no copyright outside the 4 corners of the Copyright Act. This position has been endorsed by the Supreme Court in Entertainment Network v. Super Cassette Industries (2008). The Apex Court observed thus:

“There cannot be any doubt whatsoever that an artistic, literary or musical work is the brain-child of an author, the fruit of his labour and, so, considered to be his property. A copyright, however, unlike a trade mark is a right created under the Act as is evident from Section 16 thereof. When an author of a copyright and other claims a copyright, it is subjected to the provisions of the Act. The rights and obligations of the author ought to be found out within the four corners of the Act. It is not necessary to dilate more upon these aspects of the matter as the object behind enacting the Act is absolutely clear and explicit. It creates a monopoly in favour of the author.”

In the very same judgment, the Court quotes Copinger and Skone Jones on Copyright, which says:

"Finally, it is considered a social requirement in the public interest that authors and other rights owners should be encouraged to publish their work so as to permit the widest possible dissemination of works to the public at large. These four fundamental principles are cumulative and inter-dependent and are applied in the justification of copyright in all countries, although different countries give varying emphasis to each of them

To generalize, it is true to say that in the development of modern copyright laws, the economic and social arguments are given more weight in Anglo- American laws of common law tradition, whereas, in Continental law countries with civil law systems, the natural law argument and the protection of authors are given first place."

Therefore, if the public good aspect of copyright is not satisfied by way of publication, copyright under the Indian Act does not seem to be available to authors/owners.

Does this mean if an unpublished work is published by a third party without the consent of the author, there is no remedy available to the author? No, Section 16 states clearly that nothing in this section shall be construed as abrogating any right or jurisdiction to restrain a breach of trust or confidence. 

Therefore, all that Section 16 precludes is institution of an action for copyright infringement, it does not prevent an author/owner from proceeding to take action under other laws. So, even from the point of view of reasonableness, it does seem reasonable to require publication of a work, for subsistence of copyright in it.

There are a few other provisions of the Copyright Act, which would need to be reconciled with this position, if at all it is correct. I shall elaborate on this in the next post. 


  1. sai...

    Unpublished works are entitled to CR protection, the moment they r pen to paper. Berne did away with formalities completely..

    My hunch is there is no inclusion of this in the statute.. because someone who hasnt published his work may have a bleak chance of having it misappropriated.. n if so, he can always establish his date of CR.. by evidence n claim rights... albeit may b difficult

    i believe this is a reason works are encouraged to be regd and subsequently mentioned in the Act.

    Thats my understanding on a processor slow morn..

  2. Bihu Sharma MukerjiMarch 9, 2011 at 3:13 PM

    Hey Sai,
    I think the only issue bothering you here is that there is no term prescribed to 'unpublished' works. Regarding the fact whether unpublished works have copyright, there cannot be much doubt.
    First, if one looks at Section 2 of the Copyright Act 1957 (“The Act”), the same does not restrict the meaning of “work” to just ‘published works’. Second, a mere glance at Sections 13 and 14 of the Act clearly show that copyright does subsist in published and unpublished works.
    Further, the subsistence of copyright and the term of copyright are entirely two different things.
    Coming to the question of term...
    In my opinion, a Copyright Act contains provisions of 'term of copyright' only in order to ensure that the public to whom already ‘the work’ has been ‘made available’ to (refer to definition of publication under Section 3 of The Act) is not left at the mercy of the copyright owner for eternity. An 'unpublished' work, in any case is not ‘made available’ to the public, so the term of copyright will not come into play in order to balance public interest and proprietary rights.
    The provisions of ‘term of copyright’ would come into play the moment an ‘unpublished work’ is published. Looking at, say, Sections 22 and 24 of The Act, it is clear that the Legislature did recognize the factum of subsistence of copyright in a work which is not published. Section 22 of the Act is aimed at determining a term of copyright based on the factum of the ‘lifetime of the author’. Whereas section 24 defines ‘term of copyright’ in ‘unpublished works’ which is published after the death of the author, but in which copyright subsisted at the time of author’s death, thus clearly recognising that copyright exists in ‘unpublished works’.
    Hence, in my opinion copyright cannot be seen to be tied to the factum of publication.