As we have already covered the “Literary” work under the Copyright Act 1957 in LW series for basic understanding but before proceeding towards “Musical work” under the Copyright Act 1957 in MW series, addressing the landmark judgement of 1977 by Honourable Supreme Court of India in the matter of IPRS v. EIMPA [Indian Performing Right Society Ltd v. Eastern India Motion Picture Association ] is very critical and paramount.
FOR CINEMATOGRAPHIC FILM WORK ,
IF COMMISSIONED PROJECTS ARE EXECUTED ON
“CONTRACT FOR SERVICE”
THEN U/S 17 OF COPYRIGHT ACT 1957
FOR LITERARY, DRAMATIC , ARTISTIC & MUSICAL WORKS
Story writers, Lyric writer , Music Directors etc
NOT with the FILM PRODUCERS or OTHER OWNERS……..
Developments in Copyright domain have considerably increased the legislative and judicial activity primarily to establish who is the owner of the Copyright in a work , with the intention to share the remuneration derived from the bundle of rights. This involves, first to find who is the “First Owner” of the legal title to the Copyright and then comes devolution of title to other owners.
To settle down on this issue , Judgement pronounced by Honourable Supreme Court in 1977 in the matter of IPRS v. EIMPA [Indian Performing Right Society Ltd v. Eastern India Motion Picture Association] is one of the landmark Judgement given by the visionary Honourable Judge(s) Late Justice Jaswant Singh & Late Justice Krishna Iyer. On close examinations of the petitions and other relevant documents in depth, arguments and the contentions were made by 70’s legal stalwarts and luminaries – Sr.Advocate Ashok Sen, m/s EP Skone James (authorities in Copyright subject of Copinger and Skone James group) with other Barristers and Counsel(s). So one can imagine the quality and in depth substance in arguments that must have undergone to form a benchmark Judgement. Hence , viewpoints given herein above are not contrary to the Honourable Supreme Court judgement but the endeavour is to look into the interpretation of the Apex Court in right perspective because of the changed Copyright environment particularly after the Copyright amendment in 21st Century.
First of all let’s read Section 17 of the Copyright Act 1957 without the Provisos :
FIRST OWNER OF COPYRIGHT – Subject to the provisions of this Act , the AUTHOR OF THE WORK shall be the first owner of Copyright therein :
This means without reading the Provisos its plain and simple that AUTHOR of a Work is the “FIRST OWNER”. Further , “Author” is defined and “Work” is also defined under Section 2(d) & 2 (y) respectively.
Now let’s move to the Provisos . There are three proviso(s) which needs to be addressed :
First proviso : Provided that –
- 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 appearance-ship, for the purpose of publication in a 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 so far as the copyright relates to the publication of the work in any news paper , magazine or similar periodical or to the reproduction of the work for the purpose of its being published , but in all other respects the author shall be the first owner of the Copyright in the work;
First Proviso emphasise only in three works – literary , dramatic and artistic work. Interestingly, (please note carefully) musical work is not covered under Section 17 (a).
Secondly, first proviso of Section 17 categorically carves out newspaper, magazine or similar periodical businesses under a contract of service or apprenticeship wherein in the absence of any agreement to the contrary the first owner of the Copyright will remain with the publication. For instance, assuming , RK Laxman has signed an employment contract with Bennet Coleman to draw artistic work (cartoon) and no agreement to the contrary in the said “contract of service” agreement , then the first ownership is with the publication ,that is Bennett & Coleman .
It’s pretty clear that proviso (a) does not speak about “contract for service” and the purview of the proviso is on “contract of service” who are under employment. But in the said proviso (a) the critical observation is on the sentence ” but in all other respects” the author shall be the first owner of the Copyright in the work. Please note once again the emphasise of the first proviso is on ” contract of service” even to interpret the sentence “but in all other respects”.
Therefore, as per proviso (a) , “in all other respects” means like film and television production companies, broadcasting , advertisement companies etc who have taken the work of literary, dramatic and artistic work from the authors during their employment under contact OF service agreement , however Cinematograph film which ( includes video also ) is not produced , then the first ownership will be with the said authors only and not with the companies / producers but there is a catch in “Cinematographic films” under contract OF service as per second proviso !
Second Proviso :
(b) subject to the provisions of clause (a) , in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a Cinematographic film made, for valuable consideration at the instance of any person , such person shall, in the absence of any agreement to the contrary , be the first owner of the Copyright therein;
Carefully to read is the introduction of proviso(b) which starts with : subject to the provisions of clause (a) . Which means the second Proviso (b) to be read with the conditions given under proviso (a) wherein , one among the most crucial condition is that , the Proviso (a) refers to “contract of service” and not “contract for service”.
Proviso (b) pertains to commissioning of three crafts (i.e) photograph , painting , portrait, engraving and one work (i.e) Cinematographic work. On this proviso , because of the addition of ‘Cinematograph film’ , SC Judgement 1977 is vital and the essence is that , the film producer to claim first ownership of Copyright in the literary, dramatic or artistic work incorporated in Cinematographic Film , the Film producer should have an employment contract ( contract of service ) with the lyric writer or story writer unless in the said contract of service there is an agreement to the contrary.
For instance, putting it hypothetically , if Late Anand Baxi , lyric writer was under a contract of service (employment) with Mehboob Studios then in that case the first ownership is with the Studio unless Anand Baxi had some contrary arrangement. But, if his contract is under “for service” for commissioned projects then Anand Baxi is the first owner and not the studio. And on further supposition, if there is no contract , then the onus lies with the producer to prove that he was under employment by producing his salary slips, tax incidences , treatment in books of accounts , master – servant relationship etc. If producer is not able to establish that he was under employment then the first ownership is with the author of literary, artistic and dramatic work. Therefore, from 80’s at-least the scenario has changed and nobody works or employed by studios or production house ( rarest to the rare exceptions may be there). Please note (very important) , musical work is not covered neither in proviso (a) nor in (b) and “contract for service” agreement is also out of the purview from proviso (a) & (b).
Once again , most importantly , the Honourable Supreme Court judgement pronounced in 1977 is one of the finest judgement which emphasised on CONTRACT OF SERVICE and not on Contract “FOR” service. So the sweeping statement that producers are first owner , if the contracts are executed under “contract for service” is absolutely incorrect. Yes under the “contract of service” while commissioning the project, certainly the producers are the first owners as per the SC judgment of 1977 unless any agreement to the contrary by the authors of literary , dramatic ( screenplay writers) or artistic work.
As such, up-till here (i.e) proviso of section (a) & (b) of Section 17 ] , Music composer’s rights on “MUSICAL WORKS” are not covered. In the next article ,third proviso [ Section 17(c) ] , music composers’ copyright will be covered substantially to understand under what all conditions they are the first owners which is very crucial on post Copyright amendment of 2012 scenario on royalty sharing with the owners and/ or other owners for utilisation of work in all form.
To be continued ……………………………..