Continuation from previous article MW 1-01
In last article, two provisos (a) & (b) of Section 17 of Copyright Act 1957 have been explained wherein musical work of the composers does not have any place but in the third Proviso (c) of Section 17 of Copyright Act 1957, musical work is covered and have been addressed specifically herein below.
Third proviso of Section 17 of the Copyright Act 1957:
(c) In the case of work made in the course of authors’ 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;
Proviso(c) is straightforward on two points. First it refers to author’s employment under contract of service or apprenticeship and second it mandates for those works in which proviso(a) or proviso (b) does not apply. Therefore, on examining this proviso judiciously , the non- derivative work which does not apply is “Musical work” and here under proviso (c) the musical work fits into it but the music composer should be in employment of the producer under contract of service and not on “contract for service”.
For instance (hypothetically) , if music composer Ram Sampat is working under employment on contract of service with Dharma Productions , then the film producer will be the first owner unless any agreement to the contrary and if the contract is work made on hire on contract FOR service then the music composer Ram Sampat will the first owner under section 17 of the Copyright Act 1957 and not the film producer.
Since , 1977 , as a general trend , out-and-out perception is that , film Producer is the “first owner” unless any agreement to contrary. Yes the statement is not incorrect but only, if , the contracts between the producer and author are under employment which comes under the category – CONTRACT OF SERVICE.
Besides , reading section 17 of Copyright Act 1957 which clearly emphasise on “contract of service” , enumerated herein the facts that have been averred inter-alia in ( IPR Society v. EIMP Association 1977 ) by the association of producers as per para 2 of the Supreme Court Judgement ( page 1444 SC ) “………that their members (producers) engaged composers and sound writers under CONTRACT OF SERVICE for composing songs to be utilised in their film that the musical works prepared by the composers of lyric and music under the CONTRACT OF SERVICE ……….”. Any Judgement has to be read in entirety with the facts given and the said facts under “contract of service” have been averred specifically by the producer members of EIMP while filing SLP before the Supreme Court. Please go thru the averments of Para 2 cautiously. The Supreme Court judgement in the matter of IPRS v. EIMPA (1977) was never on the premise of “Contract FOR service”.
Therefore , it can be safely derived that if the contract is executed with the authors of literary and musical work ( story writers, dialogue writers, lyric writers , music directors etc ) on FOR service basis ,then from 1977 till today ( pre or post amendment) the first owner and the author is NOT THE FILM PRODUCERS. Hence, the perception that the “producers are the first owners” cannot be taken in straight jacket.
The ramifications of film producers not being first owner will trail down to assignment and licensing contracts viz : Section 18, 19 , 30 , 33, 34, maintenance of ownership register by registered copyright Societies, sharing of royalties among first owners / authors / other owners etc from 1977 onwards read with corresponding Rules made under Copyright Rules 1958 (old & new). Ergo, the producer can defeat the rights of composer or lyricist , provided the contracts executed are of employment (i.e) CONTRACT OF SERVICE in the manner laid down in the provisos of the Act and that’s the essence of the Judgement pronounced by the Honourable Supreme Court.
The issue on doctrine of ownership divisibility , for transferring some or all bundle of rights which comprise Copyright ownership will not be an easy task considering the conceptual problems in determining the nature and scope of copyright ownership and the essentiality of contracts executed for Hindi and regional contents in India.
In the US , commissioned work were given substantially different treatment under the 1909 Act, clearly favouring the rights of employers (the commissioning party) but 1976 Act has reversed that presumption. The reason for this change , according to the legislative history , was to remedy an inequitable situation where the copyright on a work created by an independent contractor would presumptively fall into the hands of a commissioning party. ( see HR Rep No- 94-1476, 94th Congress, 2 session 121 (1976).
On a comprehensive understanding of the Copyright Act promulgated in 1957, the intention of the legislation was that film and music industry should be encouraged with new technological development and for that , certainly film producers are going to do the capital investment . In return , to get technology in place , producers will be given the privilege to have the first ownership benefit. However , to balance the equity equilibrium, legislation strongly provided that to take the leverage of “first ownership” by the film producers, people of India should be given employment (essentially the creative community like writers, music directors etc) under contract of service who are contributing to make the CINEMATOGRAPHIC FILMS. Further in addition to employment security to the creators, legislation insulated the author’s work(s) by way of Moral rights which got established in various legal cases and critical being the Delhi High Court order in the matter of Amarnath Sehgal v. UOI in 2005.
As of today , specifically after the Amendment of 2012 , royalty to be shared equally between owners and authors for the utilisation of such work in any form as per section 18 & 19 of the Copyright Act 1957 . Further, the demarcation between “of” and “for” is very crucial for calculating author’s terms of copyright in literary , dramatic , artistic and musical work. If contracts with authors are executed under the employment contract (i.e) contract of service the derivative right will come to an end after completion of 60 years but what happens to the right of the author in the situation under “contract of service” because the author”s term start after the death of the author plus 60 years. On the aspect of complex “reversionary interest regulation” , law in India is silent as of date. However , after six decades when the reservation given to the producers got curtailed for sharing the proceeds , the commotion began and this can be resolved only by having in depth examination of each contract executed among authors , owners and other owners on case to case basis.
In India, we have to go long way which will have plethora of complex legal battles to harmonise the law concerning copyright ownership and contracts. Therefore, in case of litigation on matters of ownership , infringement etc, first and foremost is to check the contracts executed between the producers and authors of literary , dramatic, artistic and and musical work on case to case basis , to find out the “of” and “for” theory then to move on the merits for injunctions. Post 2012 amendment it’s more crucial because Section 18 & 19 of Copyright Act on assignments have added the “void” provision to establish the maintainability of the Suits filed.
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.
