Wednesday, March 9, 2011

Unpublished Works and Their Copyright Status- II

‘Confute’ is a word I wasn’t familiar with until a few days back. Apparently, its roots lie in the Latin word “Confutare” which, among other things, means “to put down” or “to silence”. 

In a debate, “confute” is typically understood to mean “to conclusively refute”, thereby making confute a portmanteau of sorts. The conclusions that I was inclined to arrive at in the last post on the status of unpublished works are on the verge of being "confuted" by my friends and colleagues starting with Bihu Sharma, Sneha Jain, Divya Subramanian, Maanav Kumar and Chhavi Jain, to all of whom I am thankful. Looks like flawed posts are the best way of getting people to talk ;-)

In this post, I shall first state the proposition, counter-proposition and provide additional arguments supporting the former.

Proposition: No Publication, No Copyrights
Counter-position: Mere Creation Gives Birth to Copyright

To a very large extent, arguments supporting the proposition have their foundations in the balance typically sought to be struck between private rights and public interest, which is characteristic of IP rights. Stated simply, if members of public do not have access to a work, the author is not entitled to stake a claim for copyright.

Although this sounds unfair to an author, it could be argued that all that the author is deprived of is the copyright in the work, and not any other right which avails him certain other remedies. This is one way of interpreting Section 16 of the Copyright Act which affords an author the right to institute action for breach of trust or confidence.

For ease of reference, here’s Section 16 again:

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provided in this Act- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be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.

In other words, if a personal diary or a letter is published without the author’s consent, such publication will not constitute valid publication since it suffers from absence of consent from the author. Consequently, if publication were to be accepted as the sine qua non for vestation of copyright in the work, the author of the work cannot institute action for copyright infringement since there has been no valid publication of the work.

If so, if the author institutes action for breach of trust or confidence, what must he do to convert the action to one for copyright infringement? Publish the work himself. Is it possible to don a blackcoat’s hat and find some semblance of support for this position from Section 16? May be...

Section 16 says “No person shall be entitled to copyright or any similar right in any work, whether published or unpublished...,”. It could be argued (some might say, in an inebriated state) that “copyright” has been used in the provision with reference to a published work and “any similar right” is with reference to an unpublished work.

If this is to be accepted, what is the nature of “any similar right”? What exactly is that “similar right”? The “similar right” could be the right to acquire copyright in the work i.e. the right to publish the work and hence acquire copyright in it. Walter v. Lane appears to take a similar position on unpublished works. The relevant portion of the decision is as follows:

It is plain that a person who is not the author of a work may nevertheless be the proprietor of the copyright in it; for example, in the ordinary case of an assignment of copyright. The author is one person, the proprietor of the copyright is another. The expression "proprietor of copyright" constantly occurs in the Act. Sometimes the expression clearly includes author; sometimes it as clearly does not, but means his assign. The latter part of s. 3, which relates to the publication of books after the death of their authors, shows that authors and first publishers are by no means synonymous expressions.

Again, s. 16, which relates to actions for infringement and objections to the title of the plaintiff, shows that authors and first publishers may stand on different footings. The wording of these sections justifies the view that the owner of an unpublished manuscript, although not the author of it, acquires copyright in it by first publishing it. That has been decided in Scotland, and the cases are referred to in Phillips on Copyright, pp. 55 and 56. He refers to Maclean v. Moody and Dodsley v. M'Farquhar .

The author of an unpublished manuscript has no copyright in it, but he has a right to acquire copyright in it; and this right he may impliedly transfer to anyone to whom he sells or gives the manuscript. Further, an author who sells or gives away an unpublished manuscript/ composition of his own may be fairly inferred to transfer his own right to publish it, unless he expressly or impliedly prohibits the publication of the manuscript which he sells or gives. This is intelligible, but it does not carry the plaintiffs far enough. 

A thief or other unlawful possessor of an unpublished manuscript would not acquire copyright in it by first publishing it. He would not be the author or proprietor of the manuscript. Again, Lord Rosebery had no copyright in his speech, and although he could have acquired copyright in it by putting it into writing, and printing and publishing it, he did not do so; and there is no evidence whatever to justify the inference that he transferred to the plaintiffs his right to acquire the copyright in his own compositions, whether written or verbal. 

The plaintiffs do not derive their title to their publication from Lord Rosebery. Sect. 18 of the Act refers to copyright in what is printed in newspapers and periodical publications. Unless otherwise agreed, the copyright in such matter belongs to the author. But the publisher or proprietor of the newspaper, &c., can himself obtain the copyright in any article published in the newspaper, &c., if he employs someone to "compose" what is published on the terms that the copyright shall belong to the publisher or proprietor. 

The word "compose" here cannot mean copy or write from dictation; it obviously means compose in the sense of being the author of the matter published. This is made perfectly clear by the language of the provisos, which prevent the publisher or proprietor of the newspaper, &c., from publishing the article in a separate form without the consent of the "author," and entitle the author to publish it himself in a separate form. The "author" here is the person employed to "compose" the article. 

The more closely the Act is studied the more clearly it appears that, in order that the first publisher of any composition may acquire the copyright in it, he must be the "author" of what he publishes, or he must derive his right to publish from the author by being the owner of his manuscript, or in some other way

If the gist of the above extract from Walter v. Lane, were to be accepted, it may still be possible for us to reconcile the proposition with the phraseology of Section 17(a) and (c) of the Copyright Act, which reads thus:

Subject to the provisions of this Act, the author of a Work shall be the first owner of the copyright therein :

Provided that –

(a) 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 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 any newspaper, magazine or similar periodical, or to the reproduction of the work for the purposes of its being so published, but in all other respects the author shall be the first owner of the copyright in the work.

 (c) In the case of a work made in the course f the author’s employment under a contract of service or apprenticeship, to which clause (a) or clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

In other words, when a work is created in the course of employment, it could be said that what is transferred from the author to the employer or the proprietor of the newspaper is the right to acquire copyright, and not the copyright itself. Again, the same argument could be used to reconcile the proposition with Section 18 of the Act, which deals with assignment of copyright in a future work.

Although, one could continue to reconcile the proposition with other provisions of the Act, principles of interpretation and prudence tell us that if there are two possible lines of interpretation, the one which is less tenuous and more practical must be opted for. In the next post, we will consider reconciling the counter-proposition with the provisions of the Act.

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