Saturday, September 24, 2011

Copyright- “Statute-Governed” or “Statutory”?

Is registration of copyright mandatory? Does registration of a work under the Copyright Act lead to vestation of copyright? Or is it a mere recordal of the work in which copyright subsists? 

If an application for registration of copyright under Section 45 of the Copyright Act is rejected by the Copyright Office, does rejection deprive the work of the copyright in it?

Several judgments of various High Courts have categorically ruled that registration of copyright in not compulsory, and this is for good reason. Section 45 of the Copyright Act clearly states that an author/publisher/owner/other interested person “may” make an application for copyright. 

Copyright registration, therefore, is not mandatory for the exercise and enforcement of the right. This is fairly obvious and there is nothing earth-shattering in this conclusion.

So long as any work satisfies the fundamental requirements for vestation of the right such as originality and fixation, and it falls within the subject-matter enumerated in the Act, copyright subsists in it. To restate Section 16 of the Act, as long as a work satisfies the prerequisites of a copyrightable work as required by the statute, the work enjoys copyright protection.

This means copyright under Indian law, is strictly not a “statutory copyright”, but is in fact a right whose vestation is governed by the statute. A statutory right is one which is granted by or under a statute, however a right whose subsistence is regulated, but not granted by a statute, cannot be rightly called a “statutory right”.

For instance, a patent is granted, similarly a registered trademark too is the product of grant. Therefore, these rights may be called “statutory rights”.  Copyright, on the other hand, is a right that subsists in a work subject to fulfilment of certain conditions (of which registration is certainly not one). Hence copyright is a "statute-governed right", but not a "statutory right".

If registration of copyright is not mandatory, and it does not vest or buttress vestation of copyright, what does it attest to? It attests to the title of the applicant/author/registrant over the registered work. In other words, it serves to support a claim of copyright ownership in the work.

Since registration is merely to establish title over the work, does rejection of an application for registration translate to deprival of copyright in the work? By now, the answer must be fairly clear, which is NO. Copyright in the work continues to subsist even if application for registration is rejected.

Also, registration is merely prima facie evidence of copyright ownership, which means the presumption raised by registration of copyright with respect to ownership is not irrebuttable. Copyright ownership is still open to challenge even if the work has been registered under the Act.

Does registration of a work have implications on burden of proof when the registrant/owner of copyright institutes a suit for copyright infringement? In other words, does registration of copyright translate to presumptive validity of copyrightability?

The answer is again a clear NO. Since registration neither decides copyrightability nor vests a copyright, existence of registration does not translate to presumptive validity of copyright in the work. It merely amounts to presumptive validity of title of the work in the name of the registrant.

The further consequence of this is, although the copyright owner/plaintiff’s ownership over the work is supported by the registration, he still has the burden of proving copyrightability of the work.

Therefore, existence of copyright registration does not relieve the Plaintiff of the burden of proving that his work is eligible subject-matter for a copyright in the first place. Until this is established, he or she cannot proceed to the issue of infringement.

This is unlike the Trademark Act which bestows presumptive validity on a registered trademark. 

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