Unpublished Works and Their Copyright Status-III

In the last two posts, I had rambled on how unpublished works probably do not have copyright protection under the Indian Copyright Act owing to absence of a specific term for such works in the Act.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provided in this Act- No person shall be entitled to copyright or any similar right in any work, whether published or unpublished, otherwise than under and in accordance with the provisions of this Act or of any other law for the time being in force but nothing in this section shall be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 There is no copyright in any work, published or unpublished, other than the copyright vested in it under the Act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Therefore, nowhere does Section 16 allude to preclusion of unpublished works from the realm of copyright. In fact, the presence of “published or unpublished” in Section 16 itself indicates that issues pertaining to unpublished works too are covered by the Copyright Act.

Add to that, as pointed out by Bihu Sharma, Section 13 too speaks of unpublished works (a glaring omission on my part).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 ;-)

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.

(Image from www.cartoonstock.com)

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.