IPR
Topic 19 Authorship First Ownership
Topic 19 — Authorship and First Ownership of Copyright
Authorship and ownership are two distinct concepts. The author is the person who creates the work — the writer of the novel, the composer of the music, the photographer of the picture. The first owner is the person in whom the copyright vests at the moment of creation — usually the author, but not always. Section 17 of the Copyright Act 1957 lays down the general rule and seven exceptions, the most important of which were rewritten by the 2012 amendment to ensure that authors of underlying literary and musical works do not lose all rights merely because their works were incorporated into films or sound recordings. This topic walks through the definitions, the general rule, each statutory exception, and the leading cases.
1. Who is the "Author"? — Section 2(d)
Section 2(d) of the Copyright Act 1957 defines "author" by category of work. The definition is exhaustive — for each category, the Act specifies who counts as the author.
Category of Work | Author — Section 2(d) |
|---|---|
Literary or dramatic work | (i) the author of the work |
Musical work | (ii) the composer |
Artistic work (other than a photograph) | (iii) the artist |
Photograph | (iv) the person taking the photograph |
Cinematograph film or sound recording | (v) the producer |
Computer-generated literary, dramatic, musical or artistic work | (vi) the person who causes the work to be created |
✅ Computer-generated works — Section 2(d)(vi) For computer-generated works, the "author" is "the person who causes the work to be created". This category was inserted by the 1994 amendment. It anticipated AI-generated works decades before they became a practical issue. It does not, however, settle every question about modern AI authorship. The Copyright Office has, on a case-by-case basis, accepted human contributors to AI-generated works as co-authors; a definitive judicial pronouncement is awaited. |
Author vs. Owner — A Crucial Distinction
The author is the creator. The first owner is the person in whom copyright initially vests. They are the same person as a default rule but diverge in defined statutory situations under Section 17. After first ownership, the right may be transferred by assignment (Section 18) — in which case the assignee becomes the owner, but the author remains the author. Moral rights under Section 57 always remain with the author and cannot be assigned.
2. The General Rule — Section 17
Section 17, Copyright Act 1957 — Opening Words "Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein." |
The general rule is that the author is the first owner. This is the natural consequence of the natural-rights/Lockean justification of copyright (Topic 4). Several exceptions follow as provisos, each driven by considerations of contractual expectation, employment law, public interest, or the structure of the modern creative industries.
3. The Seven Exceptions — Section 17 Provisos
Proviso (a) — Newspaper, Magazine and Periodical Works
Where a literary, dramatic or artistic work is made by the author in the course of employment by the proprietor of a newspaper, magazine or similar periodical, under a contract of service or apprenticeship, for the purpose of publication therein, the proprietor is the first owner of the copyright in so far as the copyright relates to publication in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of being so published. In all other respects, the author remains the first owner.
✅ Bifurcated ownership under Proviso (a) A staff journalist who writes an article for a newspaper does not lose all rights. The newspaper proprietor owns the right to publish in the newspaper and to reproduce for that purpose. The journalist retains the rights to compile articles into a book, license a film adaptation, sell to a foreign publisher, or syndicate to a non-newspaper outlet — unless a contract says otherwise. This bifurcation protects journalists while preserving the practical workflow of newspapers. |
Proviso (b) — Commissioned Works (Photographs, Paintings, Engravings, Films)
Where a photograph is taken, a painting or portrait is drawn, an engraving is made, or a cinematograph film is made, for valuable consideration at the instance of any person, that person is, in the absence of an agreement to the contrary, the first owner of the copyright. The artist who creates the work is not the first owner; the commissioner is.
Illustration: If A asks B (a painter) to paint A's portrait for an agreed sum, B is the author but A becomes the first owner of the copyright. B retains moral rights under Section 57.
Proviso (c) — Works Made in the Course of Employment
Where a work is made by an author in the course of his employment under a contract of service or apprenticeship, to which Proviso (a) does not apply, the employer is the first owner of the copyright in the work, in the absence of an agreement to the contrary.
✅ Contract of service vs. contract for service Proviso (c) applies only to a "contract of service" (employment) — not a "contract for service" (independent contractor). The distinction depends on the level of control, integration and economic dependence. A salaried software engineer at a company writes code as part of her employment — the employer is the first owner. A freelance developer hired for one project on a fixed-fee basis is an independent contractor — she remains the first owner unless the contract assigns rights. |
Proviso (cc) — Public Speeches and Addresses
Inserted by the 1983 amendment. Where any address or speech is delivered in public, the person delivering it is the first owner of the copyright; if the speech is delivered on behalf of another, that other person is the first owner; if delivered by an employee in the course of employment, the employer is the first owner.
Proviso (d) — Government Works
In the case of a Government work, the Government is, in the absence of an agreement to the contrary, the first owner of the copyright. "Government work" is defined in Section 2(k): a work made or published under the direction or control of (i) the Government or any department of the Government, (ii) any legislature in India, or (iii) any court, tribunal or other judicial authority in India. (Note that Section 52(1)(q) makes certain reproductions of government works non-infringing.)
Proviso (dd) — Works of Public Undertakings
Inserted by the 1983 amendment. In the case of a work made or first published by or under the direction or control of any public undertaking, that public undertaking is, in the absence of an agreement to the contrary, the first owner of the copyright. "Public undertaking" includes any company controlled by the Government, statutory bodies and corporations established under any law.
Proviso (e) — International Organisations
In the case of a work to which Section 41 applies — works first published by certain international organisations — the international organisation concerned is the first owner of the copyright.
4. The 2012 Amendment — Protecting Underlying Authors
The Copyright (Amendment) Act 2012 inserted a critical proviso to Section 17:
Proviso to Section 17 (inserted 2012) "Provided that in case of any work incorporated in a cinematograph work, nothing contained in clauses (b) and (c) shall affect the right of the author in the work referred to in clause (a) of sub-section (1) of Section 13." |
The amendment overrules the earlier Supreme Court decision in IPRS v. Eastern Indian Motion Pictures Association (1977) 2 SCC 820, which had held that composers and lyricists lost all rights once they assigned their works for incorporation in a cinematograph film. After 2012, even if the producer is the first owner of the cinematograph film and any sound recordings, the author of the underlying literary or musical work retains a separate copyright (Section 13(4)) and a non-waivable right to royalty under Sections 19(9) and 19(10).
📖 IPRS v. Eastern Indian Motion Pictures Association, (1977) 2 SCC 820 The Supreme Court held that, when a composer or lyricist is engaged for valuable consideration to compose a song for incorporation in a cinematograph film, the producer becomes the first owner of the copyright in that song. Significance — Settled the merger question for nearly four decades. Substantially overturned by the 2012 amendments to Sections 17, 18 and 19. |
📖 IPRS v. Music Broadcast Ltd., 2023 SCC OnLine Bom 94 The Bombay High Court held that, after the 2012 amendments, authors of underlying literary and musical works subsisting in a sound recording own a separate copyright and are entitled to claim equal royalty share with the owner of the sound recording when the recording is broadcast. Significance — The first authoritative judicial endorsement of the 2012 reforms. Confirms that radio broadcasters must obtain separate authorisation/royalty for the underlying works in addition to the sound recording. |
5. Other Special Cases
Joint Authorship — Section 2(z)
A "work of joint authorship" means a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other. Joint authors are co-owners of the copyright; the term of copyright runs from the death of the longer-living author. Each joint author can sue for infringement; profits are shared.
Anonymous and Pseudonymous Works
Section 23 deals with the term for anonymous and pseudonymous works. The author retains the right; the term is 60 years from the year of first publication. If the identity of the author is disclosed before the expiry of the said period, the term reverts to life of the author + 60 years (Section 22).
Computer-Generated Works
For works generated by a computer in circumstances such that there is no human author, Section 2(d)(vi) treats "the person who causes the work to be created" as the author. Section 17 then applies as for any other work — the Author = First Owner default applies, subject to the provisos.
6. Drafting Implications
✅ Key drafting points for IP-related contracts Always specify whether a contract is one of service or for service. Section 17(c) applies only to the former. For commissioned works, draft an explicit assignment clause — relying on Proviso (b) is risky as it has narrow scope. For freelance work, include an assignment under Section 18 and 19 — Proviso (c) does not apply. For films and sound recordings, address Section 17 proviso (post-2012) and the unwaivable royalty rights of underlying authors. For staff-journalist agreements, address the bifurcated rights under Proviso (a). Include moral rights acknowledgement (Section 57) — they cannot be assigned but can be waived in some contractual contexts. |
7. Author vs. Owner — Side by Side
Aspect | Author | Owner |
|---|---|---|
Definition | The creator of the work — Section 2(d) | The person in whom copyright vests — Sections 17 read with assignments under Section 18 |
Rights held | Moral rights (Section 57); right to royalty for underlying works (Sections 19(9)–(10)) | Economic rights bundle (Section 14) |
Can transfer | No (moral rights cannot be assigned) | Yes — assignment under Section 18; licence under Section 30 |
Survives assignment | Yes — author remains author after assignment | Changes — assignor ceases to be owner; assignee becomes owner |
Sue for infringement | For moral-right violations and unwaivable royalty rights | For violation of any economic right in the bundle |
Term | Authors' moral rights coexist with copyright term | Coextensive with the copyright term in respective category |
🎯 EXAM POINTERS — TOPIC 19
|