Section 17

Copyright act
 Difference between authorship and
ownership of copyright in India

As a layman who has very little knowledge about the aspects of

copyright, we tend to believe that a music composer or a director is
always the owner of the copyright arising from a song or a film.
However, such is not always the case.

The concept of ownership under copyright has a very different

implication in comparison to other domains. The concept of authorship
and ownership are very distinct from each other.
 Who is an author?
Generally, an author is that person who writes or composes the work,
either all by himself or according to the direction given by another
person. Whenever a copyrightable work is created, the author puts in
his intellectual ability in order to create the work. Hence, the
Copyright Act, 1957, recognizing the efforts put by the authors,
grants authorship rights to the author of the creation.
 The Copyright Act, 1957 has set a general rule under the
definition of the author of various works laid down under Section
2(d), which states that the author is the first owner of the
Copyright. Section 2(d) of the Copyright Act, 1957.

The section reads as follows:

•In literary or dramatic works, the author of such work shall be the
author.
•In musical works, the music composer shall be the author.
•In artistic works, the artist shall be the author.
•For a photograph, the person clicking such photograph shall be the
author.
•In cinematographic films, the producer of such a film shall be the
author.
•For a sound recording, the producer of such sound recording shall be the
author.
•When a literary, dramatic, artistic or musical work is a computer
generated then the person who causes such work to be created is the
author.
Who is an owner?
The concept of ownership is very different under the Copyright Act. As we
discussed above, the general rule is that the author is the first owner of
the copyright. However, the Copyright Act, 1957 specifies certain
exceptions to this general rule. Therefore, it becomes very important to
understand the difference between authorship and ownership of
copyright. Let us understand with the help of illustrations.

Illustration:
If ‘A’ asks ‘B’, a painter to paint his portrait for an agreed sum of money,
then although B has created the painting, he shall be the author and A
who paid consideration for the portrait shall become the first owner of the
copyright arising and accruing out of the portrait.
In many scenarios, the work may be commissioned or made through the
course of employment. In such a situation, the person who commissions
the work or who is the employer becomes the owner of the rights in that
work.

The statutory provision that recognizes such a person as the owner is laid
down under Section 17
 Thomas vs Manorama

In this case, it was held that once the employment agreement is terminated,
the work created by a person subsequent to such termination shall be the
first and true owner of copyright arising out of such subsequent works and
the former employer shall possess no copyright on such subsequent
copyrightable work.
 Statutory exception under Section 17 of the Copyright Act,
1957

Section 17 of the Copyright Act, 1957 is an exception to the general

rule of the author being the first owner of the copyright. This section
simply lays down that a person who pays a consideration for the
work to be done shall become the first owner of the copyright. Let’s
dive deeper into this section.
Section 17 (a) of Copyright Act, 1957 : literary, dramatic and
artistic works
This clause of Section 17 talks about literary, dramatic and artistic
works. It says that whenever such a work is made by an author during
the course of his employment or service to the owner of a newspaper,
magazine, book etc under a contract for publishing such work, then
subject to an agreement in contrary, the owner of such newspaper or
magazine shall become the first owner of the copyright.

Illustration:
If ‘A’ is a journalist employed at Mirror Now, a newspaper agency, then
he shall only enjoy authorship rights over that article. The first owner of
the article shall be the owner of Mirror Now.
 Section 17 (b) of Copyright Act, 1957 : photograph, painting, engraving,
cinematographic film

This clause talks about the cases when an artist is hired for creating a
painting, or when a photographer is hired for clicking images, or a
cinematographer is hired to shoot a cinematographic film then the person
causing such work to be created shall become the first owner of the
copyright. However, this rule shall apply only if there’s no agreement to
the contrary between the parties.

Illustration:
If ‘X’ who is an artist has been hired by ‘Y’ to create a portrait of his son,
then ‘Y’ shall be the first owner of the copyright arising and accruing
from the portrait created by ‘X’ in lieu of consideration. However, ‘X’ shall
retain authorship rights over the portrait.
 Section 17 (c), Copyright Act, 1957 : work made during the course of
employment

This section provides that, when a work is made by a person in the

course of his employment under a contract of service or traineeship,
then the employer shall become the first owner of all the work created
during such employment unless there’s an agreement in contrary
between the parties.

Illustration:
If ‘M’ is a programmer employed at XYZ company, then all the copyright
arising from codes created by ‘M’ shall be owned by XYZ company as
the first owner.
 Section 17 (cc), Copyright Act, 1957 : lectures delivered in
public on behalf of another
As per this clause, if a person is delivering a speech on behalf of another
then, the person on behalf of whom the lecture is given in the public is
the first owner of such copyright. However, if a person gives a lecture in
public by himself and not representing anyone else then, he becomes
the author and first owner of such copyright.

Illustration:
If ‘A’ the spokesperson of ‘B’ a political leader delivers a speech in
public, then although ‘A’ is delivering the speech in public, ‘B’ shall be
the first owner of the copyright of such speech.
 Section 17 (d) of Copyright Act, 1957 : work assigned by
Government

Suppose if a copyrightable work is created on being tendered by the

government, then such government shall be the first owner of the
copyright arising and accruing from such works unless there’s an
agreement to the contrary between the parties.

Illustration:
If ‘A’ a sculptor, has been tendered to create a sculpture of national heroes
to be affixed on the road by the State Government then, the State
government shall own first ownership of copyright arising from such
sculpture.
Section 17 (dd) of Copyright Act, 1957 : copyrightable work made on
behalf of a public undertaking

When a copyrightable work is created as per the direction of the

public undertaking, then such public undertaking shall be the first
owner of the copyright.
 Conclusion
In the event that there is an ambiguity amongst the parties as to the
authorship or ownership of rights, one can simply check the contract
they have entered in and the terms and conditions therein. If the
parties share a relationship where section 17 applies and there’s no
agreement between the parties which is in contrast, then the
authorship and ownership rights shall be granted to parties only as per
Section 17 of the Copyright Act, 1957. Therefore, there is no hard and
fast rule on who owns authorship and who has the ownership of
copyright. It is completely dependent on a case-to-case basis and the
agreement existing between the parties.