Friday, March 11, 2011

Unpublished Works and Their Copyright Status-III

In the last two posts, I had rambled on how unpublished works probably do not have copyright protection under the Indian Copyright Act owing to absence of a specific term for such works in the Act.

In retrospect, I think I must admit that my research on the issue was not just incomplete, it was rather superficial.

In this post, I will present the counter-arguments to the proposition. Again, let’s start with Section 16, and this time we will interpret the provision to suit the counter-position.

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provided in this Act- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be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

Before I proceed further, I thank Divya Subramanian for sharing with me her thoughts on the underlying objective which Section 16 seeks to achieve.

My first take on the provision was that, it leaves it open for authors to explore non-copyright options in the absence of a copyright in their work until it is published. However, a second reading makes it pretty obvious that the provision in fact makes room for non-copyright infringement actions, despite the availability of a suit for copyright infringement.

In other words, the provision states that:

1. There is no copyright in any work, published or unpublished, other than the copyright vested in it under the Act

2. That said, notwithstanding the presence of copyright in the work under the Act, an author or copyright owner is still entitled to use/assert his rights to restrain breach of trust or confidence. Put simply, vestation of copyright does not disentitle an author or owner from instituting a suit for breach of trust or confidence.

Therefore, nowhere does Section 16 allude to preclusion of unpublished works from the realm of copyright. In fact, the presence of “published or unpublished” in Section 16 itself indicates that issues pertaining to unpublished works too are covered by the Copyright Act.

Add to that, as pointed out by Bihu Sharma, Section 13 too speaks of unpublished works (a glaring omission on my part). Further, Section 18, which refers to assignment of copyright, is another telling pointer. Section 18(1) of the Act reads thus:

18. Assignment of Copyright: (1) The owner of the copyright in an existing work or the prospective owner of the copyright in a future work may assign to any person the copyright either wholly or partially and either generally or subject to limitations and either for the whole term of the copyright or any part thereof:

Provided that in the case of the assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence.

The proviso states that in assignment of copyright in any future work, the assignment shall take effect only when the work comes into existence. If publication were necessary for vestation of copyright, the proviso would have said the assignment in future work shall come into existence upon the copyright in the work coming into existence, as opposed to the work itself coming into existence.

It is therefore clear that copyright comes into being as soon as the work comes into existence.

As for term, Sections 22 and 23, which I had previously cited to relate publication to vestation of copyright, both provisions refer to “subsistence” of copyright, as opposed to vestation. Simple English tells us that subsistence refers to survival of a thing that is already in existence.

The implication is that Sections 22 and 23 limit the term of the works referred therein to the term mentioned in those provisions. In other words, in the absence of a limitation to the term, the term would have been unlimited.

This applies in the case of unpublished works too i.e. although Section 13 vests unpublished works with copyright, since there is no provision in the Act which limits the term of the right in these works, it follows that the copyright in unpublished works lasts for eternity. Only when they are published do they fall within the penumbras of Sections 22 or 23.

If there are other perspectives on this issue, including other lines of enquiry, we welcome them! and if the very topic of the post and the conclusions are downright obvious, please ignore the posts on the issue. We take pride in ruminating on the obvious ;-)

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