Every copyright must, at the moment it comes into existence, vest in someone. The question of who that person is who holds the copyright from the instant the work is created, before any assignment, any licensing arrangement or any commercial transaction has taken place is the question of first ownership. It is a question of foundational importance, because everything that follows in the economic life of a copyright who may license it, who may assign it, who may enforce it, who receives the royalties from its exploitation depends on the answer to this question at the moment of the work’s creation.
Indian copyright law answers the first ownership question through Section 17 of the Copyright Act, 1957. Section 17 lays down the general rule and its exceptions in a single provision of considerable practical significance. The general rule is simple: the author of a work shall be the first owner of the copyright therein. The exceptions set out in a series of provisos that qualify the general rule are numerous and commercially important and their application to specific factual situations generates some of the most practically significant copyright questions in Indian intellectual property practice.
The importance of getting the first ownership question right cannot be overstated. A business that commissions software development, graphic design or content creation without understanding that the intellectual property in the commissioned work may vest in the contractor rather than in the commissioning party has failed to secure an asset it has paid for. A film producer who does not understand how the Section 17 provisos operate may not own the music, the screenplay or the performances that constitute their film. An employee who creates commercially valuable software in the course of their employment may be surprised to discover that the copyright belongs to their employer. And a photographer who takes commissioned portraits may find that the copyright in their creative work belongs to the person who commissioned the shoot rather than to them.
This article offers a comprehensive examination of Section 17 of the Copyright Act, 1957 its structure, its general rule of author ownership, each of the provisos that qualify that rule, the judicial interpretation of those provisos and the practical implications of the first ownership framework for different categories of creators and commercial parties.
The Structure of Section 17
Section 17 of the Copyright Act, 1957 provides as follows:
“Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein:
Provided that –
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment under a contract of service or apprenticeship, to which clause (b) does not apply, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work;
(b) in the case of a photograph taken or a painting or portrait drawn or an engraving or a cinematograph film made, for a 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;
(c) in the case of a work made by an author in the course of his employment under a contract of service or apprenticeship with the proprietor of a newspaper, magazine or similar periodical under an agreement the work was so made 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 newspaper, magazine or similar periodical or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(d) in the case of a work made or first published by or under the direction or control of any Government, department of the Government or any local authority, the Government or local authority, as the case may be, shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work;
(dd) in the case of a work made or first published by or under the direction or control of any public undertaking, the public undertaking shall be the first owner of the copyright in the work;
(e) in the case of a work made by an author in the course of his employment under a contract of service with any broadcasting organisation, the said broadcasting organisation shall, in the absence of any agreement to the contrary, be the first owner of the copyright in such work.”
The provision’s structure a general rule followed by multiple provisos, each addressing a specific category of work or employment relationship reflects the legislature’s judgment that while the general principle of author ownership is correct as a default, specific commercial and institutional contexts require departure from that default to reflect the economic and organisational realities of how works are created.
The General Rule – Author as First Owner
The general rule of Section 17 is that the author of a work shall be the first owner of the copyright therein. This rule reflects the philosophical foundation of copyright in the Anglo-Indian common law tradition that the creator of a work has a natural entitlement to the exclusive rights in that work as an expression of their intellectual personality and as recognition of the creative effort they have invested.
For Section 17’s general rule to apply, it is necessary to identify who the “author” of the work is. Section 2(d) of the Copyright Act defines “author” for each category of work: in relation to a literary or dramatic work, the author of the work; in relation to a musical work, the composer; in relation to an artistic work other than a photograph, the artist; in relation to a photograph, the person taking the photograph; in relation to a cinematograph film or sound recording, the producer; and in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.
The definition of “author” is both intuitive and occasionally counterintuitive. For most categories of work novels, poems, paintings, sculptures, songs the author is the person who creates the work, in the conventional and expected sense. For cinematograph films and sound recordings, the author is the producer the person who takes the initiative and responsibility for making the work rather than the director or performer whose creative contribution shapes the film’s artistic character. This counterintuitive identification of the producer as author of the film has significant first ownership consequences examined in the context of film copyright elsewhere on this platform.
The principle that the author is the first owner of copyright means that ownership arises at the moment of creation automatically, without registration, without formality and without any commercial transaction. The author owns the copyright from the instant the work comes into existence as an original expression and this ownership persists until it is transferred by a valid assignment satisfying the requirements of Section 19 or until the copyright term expires.
Proviso (a) – Employment Under Contract of Service
The first and most commercially significant exception to the author-as-first-owner rule is proviso (a), which provides that in the case of a literary, dramatic or artistic work made by the author in the course of their employment under a contract of service or apprenticeship, the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work.
This proviso vests copyright in the employer for works created by employees in the course of their employment. The rationale is that where an employer engages and pays an employee to create works as part of their employment duties, it is the employer rather than the employee who bears the financial risk of the employment and who ought therefore to receive the commercial benefit of the works created. The employer’s investment in the employee’s time, skills and resources justifies the employer’s ownership of the resulting intellectual property.
Three conditions must be satisfied for proviso (a) to apply. First, there must be a contract of service an employment relationship in the legal sense between the author and the employer. Second, the work must be made by the author in the course of their employment under that contract. Third, clause (b) the commissioning proviso must not apply, which means that proviso (a) applies to the full range of literary, dramatic and artistic works except those specifically addressed by proviso (b).
The Contract of Service Requirement
The distinction between a contract of service employment and a contract for services independent contracting is fundamental to the application of proviso (a). An employee engaged under a contract of service works under the direction and control of the employer, receives a salary or wage, is subject to the employer’s policies and procedures and has their working time and methods substantially determined by the employer. An independent contractor engaged under a contract for services provides specified services to a client, typically in accordance with their own professional judgment, for an agreed fee, without the client directing the methods by which the work is performed.
This distinction is legally clear in principle but factually complex in application. Many commercial relationships in the creative economy exist in a grey zone between employment and independent contracting a regular freelancer who works exclusively for one client, receives a fixed monthly retainer, attends the client’s premises regularly and follows the client’s editorial direction may, despite their nominal status as an independent contractor, be engaged under a relationship sufficiently similar to employment that a court might characterise it as a contract of service for copyright purposes.
Indian courts assess the employment versus independent contracting question through a multi-factor analysis that examines the degree of control exercised by the engaging party over the work methods, the degree of integration of the worker into the engaging party’s organisation, the economic dependence of the worker on the engaging party and the formal terms of the engagement agreement. No single factor is determinative and the assessment requires examination of the totality of the relationship.
The consequences of mischaracterising an employment relationship as independent contracting or vice versa for copyright purposes can be commercially severe. A technology company that engages software developers as “independent contractors” without effective copyright assignment provisions in its engagement agreements may find that the copyright in its codebase vests in the developers rather than in the company, if those developers are subsequently found to have been engaged under contracts of service.
In the Course of Employment
Even where an employee is engaged under a clear contract of service, proviso (a) applies only to works made by the employee “in the course of their employment.” An employee who creates a novel, composes music or develops software in their personal time, unrelated to their employment duties, is not making that work in the course of their employment. The copyright in such personal creative works vests in the employee under the general rule, even though the employee may be using skills, knowledge and even equipment that their employer has provided.
The “in the course of employment” requirement demands that the work be created as part of the employee’s employment duties that it fall within the scope of what the employee was engaged to do. A software developer employed to write code for an enterprise software product who writes that code during working hours as part of their assigned project is creating work in the course of their employment. The same developer who, in their personal time and on their own equipment, creates a personal app unrelated to their employer’s business is not.
The application of this requirement in practice depends on the employee’s job description, the specific creative work in question and the circumstances of its creation. For employees with broadly defined creative roles a chief creative officer at a design agency, a head of content at a media company the scope of what falls “in the course of employment” may be broad. For employees with narrowly defined technical roles, works that fall outside those specific technical duties may not be made in the course of their employment even if created during working hours.
The Significance of “In the Absence of Any Agreement to the Contrary”
The employer ownership rule under proviso (a) operates only “in the absence of any agreement to the contrary.” This qualification means that the parties may contractually alter the first ownership position the employee and employer may agree that the employee retains copyright in works created in the course of employment or the employer may agree to assign copyright back to the employee after it has vested in the employer.
In practice, most commercial employment agreements in creative industries do not seek to give copyright back to the employee they reinforce the employer’s ownership or address related questions such as the definition of what falls “in the course of employment.” However, some employment agreements particularly in academic institutions, research organisations and certain technology companies expressly address the allocation of copyright between employer and employee in ways that deviate from the proviso (a) default.
The “agreement to the contrary” must be in place before the work is created or at least contemporaneously with its creation, to affect the first ownership position. A subsequent agreement between employer and employee about who owns copyright in works already created is a copyright assignment, not an “agreement to the contrary” within the meaning of proviso (a).
Proviso (b) – Works Made on Commission
Proviso (b) addresses a specific and commercially important category of artistic works photographs, paintings, portraits, engravings and cinematograph films made for a valuable consideration at the instance of another person. It provides that such person the commissioning party shall, in the absence of any agreement to the contrary, be the first owner of the copyright.
Several features of proviso (b) distinguish it from proviso (a). First, it applies only to specific categories of artistic works not to literary or dramatic works and not to all artistic works. Second, it applies regardless of whether the creator is an employee or an independent contractor the commissioning rule operates whenever a photograph, portrait, painting, engraving or film is made at the instance of another person for valuable consideration, regardless of the employment or contractual status of the creator. Third, it requires “valuable consideration” some form of payment or other consideration flowing from the commissioning party to the creator as a condition of its application.
The commercial implication of proviso (b) is practically enormous and frequently misunderstood by both creators and their clients. A freelance photographer commissioned by a couple to photograph their wedding, a portrait painter commissioned to paint a likeness of a client, an engraver commissioned to create a commemorative plate, a filmmaker commissioned to produce a corporate video in all of these cases, the commissioning party becomes the first owner of the copyright in the created work under proviso (b), without any need for a separate copyright assignment. The creator, despite having created the work, does not own the copyright.
This rule reflects the judgment that where a person pays to have a specific creative work made for them particularly a personal or commemorative work such as a portrait or wedding photograph they have a stronger claim to the copyright than the creator, whose creative contribution has been commercially directed and compensated. The commissioning party’s control of the creative brief, their payment for the work and their personal or commercial interest in the result justify their ownership of the resulting copyright.
The Significance for Photographers
For professional photographers, proviso (b) creates a default ownership position that directly conflicts with the common assumption in the photography profession that photographers own the copyright in their work. A wedding photographer who takes photographs pursuant to a commission from the couple does not, under proviso (b), own the copyright in those photographs it vests in the commissioning couple in the absence of any agreement to the contrary.
The practical consequence is that the commissioning party may reproduce, distribute and commercially exploit the photographs without the photographer’s authorisation. They may publish the photographs in a book, license them to a commercial client or sell them to a stock library all without the photographer’s consent, because they are the copyright owner.
For photographers who wish to retain copyright in their commissioned work to use the photographs in their portfolio, to enter them in competitions, to license them to third parties an express agreement to the contrary must be in place before the commission is executed. A standard terms and conditions document incorporating a provision that copyright in all photographs vests in the photographer and that the client receives only a defined licence for specific purposes would constitute an effective “agreement to the contrary” within the meaning of proviso (b).
Films and the Commissioning Rule
The application of proviso (b) to cinematograph films made for valuable consideration at the instance of another person means that a commissioned film a corporate promotional video, a commissioned documentary, a wedding film vests in copyright in the commissioning party rather than in the filmmaker. This rule is particularly significant for independent filmmakers who produce films on commission without understanding that the copyright in their creative work will belong to the commissioning party unless a contrary agreement exists.
What Proviso (b) Does Not Cover
Proviso (b) does not apply to literary works novels, scripts, articles, software created on commission. A freelance software developer who creates a program for a client, a freelance writer who writes an article for a magazine, a freelance screenwriter who writes a script for a production company in each of these cases, proviso (a) does not apply (because the creator is not an employee under a contract of service) and proviso (b) does not apply (because the work is not a photograph, portrait, painting, engraving or film). The result is that the general rule applies the copyright vests in the creator, not the commissioning party.
This gap in the commissioning rule creates a significant and commercially important category of cases in which a client who has paid a freelance creator to produce literary or musical works does not own the copyright in the resulting work absent a specific written assignment. The frequency with which this gap is overlooked in commercial practice by clients who assume they own what they have paid for and by freelance creators who do not realise they retain copyright in their commissioned literary and musical works makes it one of the most practically important points in all of Indian copyright law.
Proviso (c) – Newspaper and Periodical Employment
Proviso (c) addresses the specific situation of an author employed under a contract of service by the proprietor of a newspaper, magazine or similar periodical, where the work is made for the purpose of publication in that periodical. In this specific context, the proprietor is the first owner of the copyright in the work insofar as it relates to publication in any newspaper, magazine or similar periodical or to reproduction for the purpose of such publication. In all other respects adaptation into a book, broadcast, film adaptation and any other use beyond periodical publication the author is the first owner of the copyright.
This provision reflects a careful balance between the commercial interests of publishers who employ journalists and writers to create content for their publications and the creative interests of the authors who create that content. The publisher owns the rights necessary to publish the work their core commercial interest while the author retains all other rights that might arise from the work’s wider exploitation.
The significance of proviso (c) has diminished somewhat in the contemporary digital publishing environment, where periodical publishers typically seek broad digital rights in addition to print publication rights. Many employment agreements with journalists and writers at digital publications now specifically address digital rights in ways that proviso (c) does not through express contractual provisions granting the employer all digital publication rights alongside print publication rights. However, for older works created under employment agreements that predate the digital era, proviso (c)’s distinction between publication rights (belonging to the employer) and all other rights (belonging to the author) remains relevant.
The provision also has residual significance for freelance contributors to newspapers and magazines. Where a writer contributes work to a periodical under a commission rather than an employment relationship, the commissioning rule of proviso (b) does not apply (because literary works are excluded from proviso (b)) and the employment rule of proviso (a) does not apply (because the contributor is not an employee). The general rule applies the freelance contributor owns the copyright. The periodical publisher has only such rights as have been specifically granted through the commission agreement, which typically amounts to a first publication right rather than a comprehensive copyright.
Proviso (d) and (dd) – Government and Public Undertaking Works
Proviso (d) addresses works made or first published by or under the direction or control of any Government, department of the Government or any local authority. In these cases, the Government or local authority, as appropriate, is the first owner of the copyright in the absence of any agreement to the contrary.
This provision vests copyright in government authorities for works produced as part of governmental activity legislative texts, official reports, government maps, official photographs, government-commissioned creative works and public documents produced under governmental direction and control. The vesting of copyright in the government for official works reflects the principle that intellectual property created by or for the organs of the state in the discharge of their public functions should belong to the state.
The application of proviso (d) requires that the work be made or first published “by or under the direction or control of” the relevant government body. Works made by individual civil servants in the course of their duties are made “under the direction or control of” the government and attract proviso (d). Works commissioned by the government from independent contractors may also be made “under the direction or control of” the government depending on the degree of direction exercised.
Proviso (dd), inserted by amendment, extends the same principle to public undertakings government-owned companies, statutory corporations and other public sector bodies. Works made or first published by or under the direction or control of a public undertaking vest in that undertaking as first owner.
The government copyright provisions have specific implications for judicial decisions, which constitute works made by or under the direction of the government. As discussed in the articles on databases and compilations and on copyright registration, the practical effect of government copyright in judicial decisions is that the raw text of judgments is technically owned by the government, though this ownership is not actively enforced and the decisions circulate freely. The editorial additions made by commercial law reporters to enhance and contextualise those decisions attract copyright in the reporters, as established in Eastern Book Company.
Proviso (e) – Broadcasting Organisation Employment
Proviso (e) provides that where a work is made by an author in the course of their employment under a contract of service with any broadcasting organisation, the broadcasting organisation shall, in the absence of any agreement to the contrary, be the first owner of the copyright in such work.
This proviso specifically addresses the employment context of broadcasting recognising that broadcasting organisations employ journalists, presenters, producers, writers and other creative staff who create works in the course of their broadcasting employment. The broadcasting organisation’s first ownership of such works reflects its organisational and financial investment in the broadcast production and its status as the entity responsible for the broadcast.
The proviso is relevant to the full range of content created by broadcasting employees news reports, scripts, programme presentations, factual programmes, entertainment content and any other work made in the course of broadcasting employment. Works that fall within the scope of a broadcasting employee’s employment duties vest in the broadcasting organisation, regardless of the individual creative contribution of the employee to the work.
The Interplay Between the Provisos and the General Rule
The provisos to Section 17 do not operate as a hierarchical list they are alternatives, each applying to specific factual situations. Understanding which proviso applies to a specific creation context requires a careful analysis of the factual circumstances of creation: who created the work, under what legal relationship with whom, for what purpose and in what institutional context.
Where an employment relationship exists a contract of service the relevant proviso is (a), (c) or (e) depending on the nature of the employer: a general employer (proviso (a)), a newspaper or periodical publisher (proviso (c)) or a broadcasting organisation (proviso (e)). Where a commissioning relationship exists without employment a contract for services for the specific categories of artistic works proviso (b) applies. Where government or public undertaking direction or control exists, provisos (d) or (dd) apply.
Where no proviso applies where the work is created by an independent contractor for a literary or musical work, where the work is created independently without commission or employment direction the general rule applies and the author owns the copyright as first owner.
The interaction between proviso (b) the commissioning rule for specific artistic works and the general rule the author owns literary and musical works created on commission creates the practically significant gap discussed above. The resolution of this gap in commercial practice requires careful attention to written assignment clauses in all commission agreements involving literary, musical and software works.
Joint Authorship and First Ownership
Where a work is the product of joint authorship created by two or more authors whose contributions are not distinct the first ownership of copyright is shared jointly among all the authors. Section 2(z) defines a work of joint authorship as 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 author or authors.
The first ownership of jointly authored works vests jointly in all the joint authors, each of whom holds an undivided share of the copyright. The rights of joint copyright owners are governed by the general principles of co-ownership each owner may independently license the work on a non-exclusive basis, but no owner may assign the copyright or grant an exclusive licence without the consent of all co-owners.
In the employment context, where works are created collaboratively by multiple employees, the employer ownership rule of proviso (a) extends to the jointly created work the employer is the first owner of the copyright in the jointly authored work, just as the employer would be of individually authored works created in the course of employment.
The Academic Copyright Exception – The Uncodified Tradition
As discussed in the article on e-learning and online education, the application of Section 17 to works created by academic employees at universities and research institutions raises the question of whether a “teacher exception” to the employment ownership rule exists in Indian law.
The academic tradition has historically assumed that faculty members own the copyright in their scholarly publications, their textbooks and their lecture materials, even though these are created in the course of employment at an educational institution. This assumption, which is well-established in practice and widely reflected in university policies, is difficult to reconcile with the straightforward application of proviso (a), which would vest copyright in the employing institution for works created by faculty in the course of their employment.
Indian courts have not clearly recognised a teacher exception to proviso (a) and the Copyright Act contains no express provision creating one. The decision in Academy of General Education v. B. Malini Mallya (2009) suggests that the Karnataka High Court was prepared to apply the proviso (a) rule to an academic employment context, though the case did not directly address the teacher exception question.
The resolution of the academic copyright question in India will ultimately depend either on express legislative provision creating a teacher exception, on the development of judicial doctrine recognising such an exception based on the specific nature of academic employment or on the widespread adoption by educational institutions of explicit intellectual property policies that contractually vest copyright in faculty members an “agreement to the contrary” within the meaning of proviso (a) that preserves faculty copyright regardless of the default rule.
Practical Implications – What Creators and Commissioners Must Know
The practical implications of Section 17 for different categories of creators and commercial parties can be summarised as follows.
For Employees in Creative Industries
Employees who create literary, dramatic, musical or artistic works in the course of their employment should understand that, absent any contrary agreement, the copyright in those works vests in their employer. An employee who creates commercially valuable software, designs, editorial content or other creative works as part of their employment duties cannot commercially exploit those works independently, license them to third parties or include them in their personal portfolio without the employer’s permission.
Employees who wish to retain rights in works they create should seek express provisions in their employment agreements but should not assume that provisions in their employment agreement about retaining rights in work created outside office hours and without company resources are sufficient unless those provisions specifically and clearly address the scope of what falls “in the course of employment.”
For Independent Contractors
Independent contractors who create literary, dramatic or musical works on commission software developers, writers, composers should understand that, absent any copyright assignment in the engagement agreement, they retain copyright in their commissioned work. The client who commissioned and paid for the work has whatever rights the engagement agreement specifically grants but does not automatically own the copyright.
Contractors who contribute to the production of photographs, films or other works falling within proviso (b) should understand that copyright in those works vests in the commissioning party. If the contractor wishes to retain any rights to use the work in their portfolio, to license it to third parties they must negotiate specific provisions into the engagement agreement before the work is created.
For Commissioning Parties
Businesses, individuals and organisations that commission creative works should ensure that their engagement agreements explicitly address copyright ownership, particularly for literary, dramatic and musical works that are not covered by the proviso (b) commissioning rule. Without express copyright assignment provisions in commission agreements for software, editorial content, graphic designs in digital format and other literary or artistic works that may not attract proviso (b), the commissioning party does not automatically own the copyright in the created work.
The commissioning party should also ensure that agreements with contractors as distinct from agreements with employees are clearly documented as contracts for services to avoid any ambiguity about the employment status of the creating party and therefore about the applicable first ownership rule.
For Film Producers
Film producers should understand that Section 2(d)(v) makes the producer the deemed author of the cinematograph film and that the producer is therefore the first owner of the copyright in the film as a whole under the general rule. The copyright in the constituent works incorporated in the film the screenplay, the score, the lyrics vests in those works’ respective authors unless the proviso (a) employment rule or the Section 17(c) newspaper-equivalent commissioning provision applies.
The 2012 amendment’s royalty sharing provisions under Section 18 mean that even where the producer has obtained the copyright in musical and literary works through proviso (a) (as the result of commissioning a composer or lyricist as an employed worker), the composer and lyricist retain a non-waivable right to an equal share of royalties from exploitation of those works in forms other than as part of the film.
Key Cases on Section 17
Indian Performing Right Society v. Eastern India Motion Pictures Association, AIR 1977 SC 1443 is the foundational authority on the application of Section 17’s provisos in the film context. The Supreme Court held that where a composer and lyricist are commissioned to create music and lyrics for a film, the film producer becomes the first owner of the copyright in those works under provisos (b) and (c) of the then-applicable version of Section 17 and the creator cannot therefore assert performing rights in works whose copyright belongs to the producer. This decision has shaped the legal landscape for music licensing in the Indian film industry and has been qualified but not overruled by the 2012 amendments.
Academy of General Education v. B. Malini Mallya, (2009) ILR Karnataka 3444 addressed the application of Section 17 to an academic employment context, with the Karnataka High Court’s analysis suggesting that the proviso (a) employer ownership rule applies to works created by academic employees in the course of their employment at educational institutions.
Neha Bhasin v. Anand Raj Anand, (2006) 32 PTC 779 (Delhi High Court) touched on the first ownership of performers’ rights and the relationship between the copyright in a sound recording and the performers’ rights of the singer whose voice performance is embodied in the recording, clarifying aspects of the first ownership framework for sound recordings and performances.
Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Delhi 13 examined the application of the commissioning rule to film adaptation rights, confirming that an author who licenses adaptation rights retains the moral right under Section 57 to object to modifications prejudicial to their honour, even after the copyright has passed to the commissioning party.
Conclusion
Section 17 of the Copyright Act, 1957 is the gateway through which copyright ownership flows from the moment of creation. Its general rule that the author is the first owner establishes the foundational principle of creator entitlement that drives copyright’s incentive structure. Its provisos particularly the employment and commissioning rules reflect the practical reality that much creative work is produced not in the solitude of independent artistic endeavour but in commercial and institutional contexts where the financial and organisational investment of an employer or commissioning party creates a legitimate claim to the resulting intellectual property.
The practical significance of Section 17 for every participant in the creative economy cannot be overstated. Creators who do not understand the provisos may believe they own rights that belong to their employers or commissioners. Commissioners who do not understand the limits of the provisos may believe they own rights that remain with the creator. Businesses that build their models on the assumption of ownership of commissioned creative work without securing adequate contractual provisions may find their most valuable intellectual property assets do not belong to them.
The resolution of the first ownership question is the foundation of every subsequent copyright transaction every assignment, every licence, every enforcement action, every royalty arrangement. Getting it right, through clear contractual provisions, well-drafted employment agreements and accurate understanding of the statutory framework, is the most basic and most important exercise in copyright management.
References
- The Copyright Act, 1957, Sections 2(d), 2(z), 13, 17, 18, 19, 51, 55, 57 – https://copyright.gov.in/Documents/CopyrightRules1958.pdf
- The Copyright (Amendment) Act, 2012 – https://copyright.gov.in/Documents/Amendment_Act2012.pdf
- Indian Performing Right Society v. Eastern India Motion Pictures Association, AIR 1977 SC 1443 – https://indiankanoon.org/doc/553674/
- Academy of General Education v. B. Malini Mallya, (2009) ILR Karnataka 3444 – https://indiankanoon.org/doc/1491623/
- Mannu Bhandari v. Kala Vikas Pictures Pvt. Ltd., AIR 1987 Delhi 13 – https://indiankanoon.org/doc/889479/
- Neha Bhasin v. Anand Raj Anand, (2006) 32 PTC 779 (Delhi High Court) – https://indiankanoon.org/doc/1388633/
- The Indian Performing Right Society Ltd. v. Aditya Pandey & Anr., CS(OS) 1185/2006 (Delhi High Court, 2011) – https://indiankanoon.org/doc/1207507/
- Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1 – https://indiankanoon.org/doc/1023365/
- Amarnath Sehgal v. Union of India, 117 (2005) DLT 717 (Delhi High Court) – https://indiankanoon.org/doc/1402532/
- R.G. Anand v. Deluxe Films & Ors., AIR 1978 SC 1613 – https://indiankanoon.org/doc/595730/
- Tips Industries Ltd. v. Wynk Music Ltd. (2019), Bombay High Court – https://bombayhighcourt.nic.in
- Berne Convention for the Protection of Literary and Artistic Works, Articles 2, 5, 6bis – https://www.wipo.int/treaties/en/ip/berne/
- TRIPS Agreement – https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
- Copyright Office of India – https://copyright.gov.in
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