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Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Copyright In Unpublished Works: A Conundrum Under The Indian Copyright Act

Introduction

Copyright is one of most common form of Intellectual Property. Copyright provides ownership and protection to the author for his original work such as literary, dramatic, musical, cinematographic and artistic work.[1] An important element of copyright is that it does not protect the idea but only its expression. It is often regarded as a “bundle of rights” as it provides not only economic benefits but also other rights such as right of paternity (right to claim authorship) and integrity (right to prevent alteration) to the author.[2] In India, the Copyright Act 1957 is the main legislation covering the various aspects of copyright protection in the country.[3] The law been amended several times till now to make it at parity with International agreements such as the Berne Convention for Protection of Literary and Artistic Works, 1886 and the TRIPS agreement. 

What amounts to Publication?

Publication of the work by the author is an important aspect in attaining copyright protection as it serves two important purpose of copyright law, first it makes the original work of the author available to the public in general for their benefit and secondly its date of publication helps in setting out the time period for which the copyright will subsist. As per the Berne convention, publication is referred as to make the work available to public.[4]

The Indian Copyright Act does not provide any specific manner for the publication of the work. Although section 3 and 4 of the Act lays down the circumstances when the publication of the work is deemed or not deemed to be so, as was laid in the case of Warner Bros. Entertainment Inc. and Ors. v Mr. Santosh V.G.[5]
Section 3 of the Act provides that, “publication means making a work available to the public by issue of copies or by communicating the work to the public.”[6] Section 4 states that “except in relation to infringement of copyright, a work shall not be deemed to be published or performed in public, if published, or performed in public, without the license of the owner of the copyright.”[7]

What amounts to unpublished works?

So what amounts to unpublished work, can it simply mean the work which is not made available to the public? Statutory ambiguity exists in this regard but there are certain factors which affect and play an important role in determining whether a work is published or unpublished such as the manner in which the work is to made available, the number of people that can constitute public, the intention of the author in making the work known to other people. To illustrate this point, certain sections of the Indian Copyright law are discussed hereafter:

Section 52(1)(p) of the act states that, “reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access’ is not infringement of copyright.”[8] It can be clearly inferred from this provision that an unpublished work can even be a work which is made available to the public. Thus an unpublished work cannot simply mean as to not available in public domain, for it to be a published work it has to be made available in a particular manner or with such intention.
Section 31A (1) of the act entails the provision whereby a person can apply for a compulsory license to publish unpublished works or certain published works.[9] But for a person to apply for compulsory license for publication of an unpublished work, he/she must have the knowledge of the existence of such unpublished work. Therefore, it can be observed that even if an unpublished work is known to a person or a group of person, it does not make it published as such. A work can remain unpublished even it being in knowledge of some persons.

Explanation to section 2(ff) of the act which defines the term ‘communication to the public’ further enumerates this observation. It states that “For the purposes of this clause, communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public.” It clearly indicates that the term ‘public’ is not wholly related to the number of people. As in such a case, even two persons may be termed as ‘public’. Thus, publication is not equated with the number of people to whom the work has been made available.
Thus it can be established that for a work to be published it is not wholly dependent on any single factor like the knowledge of it among certain person or the number of people but more to the intention of the author and the manner in which it is made known.

Publication not a pre-requisite

Since copyright protects an original expression, copyright in a work subsists as soon as an idea is put into an expression so as to form an original work of the author. There is no explicit requirement for it to be published. To explain this point various sections of the India Copyright Law are illustrated hereafter:

Section 13 of the act is titled as “works in which copyright subsists.” Sub-section (1) states that subject to other clauses of the section and the other provisions of the Act, copyright subsists in original literary, dramatic, musical and artistic work, cinematographic films and sound recordings.[10] None of the five sub-sections of this section provides for the requirement of publication for subsistence of copyright in a work. Thus, no distinction is made on the basis of publication of a work for it to be protected under the Act.
Section 16 of the provides that, “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.”[11] It can be noticed that section 16 nowhere hints at the exclusion of unpublished work from the domain of copyright law. Rather by using the words both “published and unpublished”, the legislators had cleared their intention to cover each of such works under the act.

Further an interesting observation can be drawn from the wording of section 18 of the act which deals with assignment of copyright. It provides that the prospective owner of the copyright in a future work may assign to any person the copyright, but in such a case the assignment shall take effect only when the work comes into existence.[12] Thus, it can be inferred that copyright in a work exists as soon as it is put into an expression and not wait for it to be published.

Conclusion and Opinion

Thus it is clear that copyright subsists in a work as soon as it is written or given an expression, provided it is an original work of the author. There is no mandatory requirement for it to be communicated, seen, heard or enjoyed by the public to get copyright protection for a work. The main reason here is to protect the exclusive work of the author and his labour by preventing any misappropriation of his work before it is published. It is done to promote new development in these fields by safeguarding their interests. However in a case where the work remains unpublished and only with the author (in his computer, notepad, drawer etc.) and a conflict arises with respect to its ownership or authorship, it can be really challenging for the actual author to prove his bona fide ownership. The burden of proof will be on the person claiming the work as his own to prove how the alleged infringer had the knowledge of his work and could access it, which generally can be rather difficult. Thus, the relevance of publication cannot be undermined.

Furthermore, publication plays an important role in determining the time period for copyright protection. According to section 22 and 23 of the Indian Copyright Act, copyright subsists for a period of 60 years from the year of its publication. An unpublished work hence does not come within the ambit of these sections and since it’s not made clear anywhere, the question whether the copyright subsists in such a work for eternity remains unanswered. 

Reference

[1] N. M, Anjaneya & Aswath, Lalitha. Understanding Copyright Laws: Infringement, Protection and Exceptions, INTERNATIONAL JOURNAL OF RESEARCH IN LIBRARY SCIENCE 2455-104X, (2016).
[2] Thurston, Morris A, A Bundle of Rights, JOURNAL OF MORMON HISTORY, Vol. 28, no. 1, 2002, pp. 67–79. JSTOR,www.jstor.org/stable/23288646.
[3] The Indian Copyright Act, 1957, http://copyright.gov.in/Documents/CopyrightRules1957.pdf
[4] Summary of the Berne Convention for the Protection of Literary and Artistic Works (1886).
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html.
[5] Warner Bros. Entertainment Inc. and ors. v Mr. Santosh V.G. (CS (OS) No. 1682/2006).
[6] Section 3, The Indian Copyright Act, 1957
[7] Section 4, The Indian Copyright Act, 1957
[8] Section 52(1)(p), The Indian Copyright Act, 1957
[9] Section 31(A)(1), The Indian Copyright Act, 1957
[10] Section 13, The Indian Copyright Act, 1957
[11] Section 16, The Indian Copyright Act, 1957
[12] Section 18, The Indian Copyright Act, 1957

Author: Jalaj Agarwal, Symbiosis Law School, Pune

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