INDIAN INSTITUTE OF LEGAL STUDIES

TOPIC: - The Author of a Work shall be the First Owner of

The Copyright Therein”. Critically analyse
AND THE CASE OF
Aamir raja hossain v. Cinevistas ltd.

SUBMITTED BY:-
Name:-RIYA AGARWAL
Roll No.:- 02
Registration No: -
Course:-5 years BCOM LL.B 9TH SEM
Exam:-2016-17

UNDER THE SUPERVISON OF: -

Name:-SOURADEEP RAKSHIT
Subject: - INTELLECTUAL PROPERTY RIGHTS

RIYA AGARWAL Page 1

 Acknowledgement

A research work of such great scope and precision could never have been possible without
great co-operation from all sides. Contributions of various people have resulted in this effort.
Firstly, I would like to thank God for the knowledge he has bestowed upon me.

I would like to express my heartfelt gratitude to Sir Souradeep Rakshit for her valuable inputs
and guidance throughout my project work and research. I owe acknowledgement to
our Library in-charge for permitting me to access the library whenever required and for
helping me out with the books. I would also like to thank my friends for their endless efforts
towards supporting me and encouraging me to work harder towards the comprehensive
objectives of this project. This project has helped me to attain greater knowledge of the given
topic and it was a pleasure to help my companions and share their views.

This project is a mere reflection of the support and well wishes that was ushered on me from
all corners without which it would never have been possible and I shall remain indebted.

B.COM LLB SEMESTER IX

Page 2
Page 3
TABLE OF CONTENTS

Particulars. Page No.

1.RESEARCH METHODOLOGY 5

CHAPTER I
2.INTRODUCTION 7

CHAPTER II
3. RECOGNITION FROM THE ASPECT OF LAW 9
4. WHO IS AN AUTHOR AND WHAT IS HIS AUTHENTICITY 13

CHAPTER III
5. FACTS & ISSUES 16
6.RATIO & JUDGEMENT 18

CHAPTER VI
CONCLUSION 19
BIBLIOGRAPHY 20

Page 4
 1. RESEARCH METHODOLOGY

RESEARCH OBJECTIVE
This Act is known as the copyright Act, 1957, which is suitably amended again in the
1999 according to the prevailing situation in the India and around the world. In the
field of copyright, India as a signatory to the Berne Convention and the International
Copyright Order, 1958, which is now replaced by the International Copyright Order
of 1991. It provides the same protection to nationals of member States as its own
nationals.The importance of copyright was recognized only after the invention of
printing press, which enabled the large production of books in large quantity
practicable. In India the first legislation of its kind, the Indian Copyright Act, was
passed in 1914, which was mainly based on the United Kingdom Copyright Act,
1911.
REVIEW OF LITERATURE

During the five decades modern and advance means of communications like
broadcasting, litho-photography, television etc., have made roads in the Indian
economy. So there was the need of new more powerful law, which can protect the
rights of copyright owners or original creators. So new Act was enacted by the
parliament of India, which was based on the Berne convention and universal
copyright declaration.1

SCOPE AND LIMITATIONS

The courts often extend the principles of unfair competition or passing off to stop
infringement. In fact, it is a bundle of rights including, inter alia, rights of
reproduction, communication to the public, adaptation and translation of the work.
There could be slight variations in the composition of the rights depending on the
work.

1
Robertson v. Thomson Corp. 2006 SCC 43, [2006] 2 SCR 363 (12 October 2006)
Page 5
 RESEARCH QUESTIONS/HYPOTHESIS

What is copyright?

Copyright is a right given by the law to creators of literary, dramatic, musical and
artistic works and producers of cinematograph films and sound recordings. The States
so covered are the Berne Convention signatories, the Universal Copyright Convention
countries and the Phonograms Convention countries.2 Patents and trademarks
registered outside the country are protected against infringement in India if they have
acquired international reputation and goodwill.
NATURE OF WORK

This project is mainly the outcome of the library based research. The research is of
the systematic exposition, analysis and critical evaluation of legal rules and their
inter-relationships. Articles, books, case study and secondary data are referred for the
literature review and reference and based on it analysis and conclusion are drawn.
MODE OF CITATION

NLS uniform mode of citation has been adopted throughout the course of the paper.

2
Ariel Katz, Intellectual Property: Copyright,Trademark and Patent (LAW384H1F), Lecture notes, (Faculty of
Law, University of Toronto, 2011)
Page 6
 2 INTRODUCTION

At the heart of the copyright system is the author of a creative work. The Berne
Convention,3 establishing a union to protect literary and artistic works, recognizes by
virtue of Article 1 that the rights being protected through copyright law are the rights
of authors. Authors are the first beneficiaries of rights under the law and provide a
reference point as to how long rights over the work should exist. However, authors are
not identified with as much precision as the rights protected under law and this may
be because of the divergences in national law on some aspects of authorship after the
Convention was promulgated. Authorship in copyright today is a legal artifact
allowing a market for creative works to function and at the same time is also a
reversion to early versions of romantic authorship that allows autonomous
individuality on the part of the author. Seen this way, the concept of authorship
provides a fundamental contradiction between collective market economics of
commercialization and the individual prerogatives of an author to exercise complete
control over how the work is used.

OWNERSHIP OF COPYRIGHT-
The provisions of acquiring copyright ownership are defined under Section 17 of
the Act. The right of ownership is available only if one qualifies the provision of
this Act. There is no other remedy in other laws prevailing in India to counter the
violation of copyright ownership.4
The nationality of the person is the important factor to get the right of the
copyright. The section 13(2) provides that-
(1) In case of published work, the work must be published in India or when
published outside India, the author must be citizen of India at the date of
publication or if dead at the time of his death.

3
Parliament, Bill C-11, 1st Session, 41st Parliament, 60 Elizabeth II, 2011 (14 October 2011) online:
<http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=5144516&File=36>
4
Dolmage v. Erskine, 2003 CanLII 8350 (ON SCSM),
Page 7
 (2) Section 7 of the copyright Act provides that the author in the case of
unpublished work, at the time of making of an unpublished work must be citizen of
India or domiciled in India where the making of an unpublished work is extended
over a considerable period.
(3) In the case of architectural work the work must be situated in India.

The international organization and the citizen of other countries also get the
protection of copyright in India but it is subject to the certain condition and they are
not per se qualified for the protection.5

Copyright protection is given for a work having originality, i.e. it should be from the
author and must have minimum degree of creativity. So it is the author who is the real
creator of the work thereby first owner of the copyright and Indian law recognizes
author as the first owner of the copyright.But by the term ‘ownership’ it means it
includes not only the author ,but also assignee and can even a legal entity even though
not defined in the Act. In Bern convention the term Author is not defined, instead it
says theperson under whose name the work is disclosed ,which implies that it is not
necessary that always the author should be the owner . 6However Indian copyright Act
defines the tern ‘Author ‘with respect to various works, but still leaves some
problems. It becomes more complex in the context of changing technologies, i.e.
cinematographic works, sound recording, broadcasting etc. which is a combination of
different works, also when author does the work in the course of employment.

5
Canadian Admiral Corp. v. Rediffusion Inc., 14 Fox Pat. C. 114, [1954] Ex. C.R. 382, 20 C.P.R. 75, 1954
CarswellNat 5
6
http://williampatry.blogspot.com/2008/02/death-of-divisibility.html
Page 8
 3: RECOGNITION FROM THE ASPECT OF LAW7

(1) The work is published as aforesaid in pursuance of an agreement in that behalf

with the author, being an agreement which does not reserve to the author copyright,
if any, in the work, or

(2) Under section 17 any copyright in the work would belong to the organization,

There shall, by the virtue of this section, be copyright in that work throughout India.
Any organization to which this section applies which at material time had not the
legal capacity of a body corporate shall have and be deemed at all material times to
have had the algal capacity of a body corporate for the purpose of holding, dealing
with, and enforcing copyright and in connection with all legal proceedings related to
copyright.

According to Section 17 of the Copyrights Act, 1957 the first owner of copyright is
defined as under:

Subject to the provisions of this Act, the author of a work shall be the owner of
copyright therein. Section 17 statutorily recognizes the author of the work to be the
first owner of the copyright. The author is defined under the Act for various works,
which come under the law of copyright.

Section 2(d) defines author, it says "Author" means,-

(1) In relation to a literary or dramatic work, the author of the work;

(2) In relation to a music work, the composer;

(3) In relation to artistic work other than a photograph, the artist;

7
Sybersound v. UAV Corp. | US | Ninth Circuit Court
Page 9
 (4) In relation to photograph, the person taking the photograph, the artist;

(5) In relation to a cinematograph film or sound recording, the producer; and

(6) In relation to any literary, dramatic, musical or artistic work which is

computer- generated, the person who causes the work to be created.

However, this provision is subject to certain exceptions. For instance Section17 (a)
provides that where a work is made by the author in the course of his employment by
the proprietor of a newspaper, magazine or a periodical under a contract of service or
apprenticeship for the purpose of publication in a newspaper, magazine or periodical,
the said proprietor, in the absence of any agreement to the contrary will be the first
owner of the copyright in the work in so far as it relates to the publication of the work
in any newspaper, magazine or similar periodical or to the publication of the work for
the purpose of being so published. Except in such cases, the author will be the first
owner of the copyright in the work. In Thomas v. Manorama, 8 it was held that in the
case of termination of the employment, the employee is entitled to the ownership of
copyright in the works created subsequently and the former employer has no
copyright over the subsequent work so created.

The copyright in a work done by an employee on his own time and not in the course
of his employment belongs to him.

Section 17(b) provides that where a photograph is taken or a painting or a portrait

drawn, or an engraving or a cinematograph film made, for valuable consideration at
the instance of any person, such person, in the absence of any agreement to the
contrary, shall, be the first owner of the copyright therein. In Chidambare v. Renga,
where a person rests under an obligation to do something, and in discharge of such
obligation, he transfer a certain interests, such transfer is for valuable consideration.

Section 17 (c) provides that in the case of work made in course of the author's
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. An author may create a work
8
2008(3)ARBLR197(Bom) | 2008(4)BomCR838
Page 10
 independently, or he may create a work under a contract of service or contract for
service.

Where a man employs another to do work for him under his control, so that he can
direct the time when the work shall be done the means to be adopted to bring about
the end, and the method in which the work shall be arrived on, then the contract is
contract of service. If, on the other hand, a man employs another to do certain work
but leaves it to that other to decide how that work shall be done. What step shall be
taken to produce that desired effect, and then it is a contract for service. In Beloff v.
Pressdram, it was held that the true test is whether on the one hand the employee is
employed is part of business and his work is integral part of the business, or whether
his work is not integrated into the business but is only accessory to it or the work done
by him in business on his own account. In the former case it is a contract of service
and in the latter a contract for service.

The services of an independent contractor are hired for creating or doing a work on a
given subject. For example, an examiner who prepares question papers for a
university or college.9 As it was held in University of London Press v. University
Tutorial Press , the examiner was free to prepare his questions at his convenience so
long as they were ready by the appointment for the examinations, and it was left to his
skill the syllabus, the book work, and the standard of knowledge to be expected at the
matriculation examination, and in view of this aspect of matter, the examiner was not
acting under the contract of service but contract for service.

Thus the distinction between the two is same as that between and an independent
contractor. An employee is a person who is subject to the command of his employer
as to the manner in which he shall work. In such cases the employer in the absence of
a contract to contrary is the first owner of the copyright.

Section 17(cc) provides that in case of any address or speech delivered in public, the
person who has delivered such address or speech such address or if such person
delivered such address or speech on behalf of any other person, such other person
shall be the first owner of the copyright therein notwithstanding that the person who

9
Copyright Act, RS 1985, c C-42, s 13(3)
Page 11
 delivers such address or speech, or, as the case may be, the person on whose behalf
such address or speech is delivered, is employed by any other person who arranges
such address or speech or on whose behalf or premises such address or speech is
delivered;

Section 17(d) provides that in the case of a government work, the government shall, in
the absence of any agreement to the contrary, be the first owner of the copyright
therein;

Section 17(dd) states that in the case of a work made or first published by or under the
direction or control of any public undertaking, such public undertaking shall, in the
absence of agreement to the contrary, be the first owner of the copyright therein;

The explanation to the Section provides that for the purpose of this clause and section
28A, "public undertaking": means:10

(1) AN UNDERTAKING OWNED AND CONTROLLED BY GOVERNMENT;

OR

(2) A GOVERNMENT COMPANY AS DEFINED IN SECTION 617 0F THE

COMPANIES ACT, 1956; OR

(3) A BODY CORPORATE ESTABLISHED BY OR UNDER ANY CENTRAL,

PROVINCIAL OR STATE GOVERNMENT;

Section 17(e) provides that in the case of a work to which the provisions of section 41
apply, the international organization concerned shall be the first owner of the
copyright therein.

For understanding the concept of ownership under this clause one have to look to the
section 41 of the Act. Which says where any work is made or first published by or
under the direction or control of any organization to which this section applies, and
there would, apart from this section, be no copyright in the work in India in the time
of the making or, as the case may be, of the first publication thereof, and either:

10
Davis v. Blige | US | Second Circuit Court
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4: WHO IS AN AUTHOR AND WHAT IS HIS AUTHENTICITY

The author in copyright history, especially before the Statute of Anne, had been
regarded as a separate entity from the printer or publisher of a work. The
distinguishable rights of a book owner over the manuscript as a physical object made
out of ink and parchment from the rights of an author over the text itself indicated an
early separation between the person who created the work and the person who
invested in publishing it. In fact, early forms of copyright practiced by the book trade
showed more of an economic interest by the book sellers in the physical embodiment
of a text rather than the text itself. Printing privileges that were given to printers in the
year 1400s allowed books to be printed in large quantities and distributed. This
encouraged a capitalistic enterprise in the form of the book trade to develop though
not creative endeavors through autonomous authorship. Authors were given separate
privileges but it appeared from the privileges granted to authors, editors, translators
and printers that even in fifteenth century Venice, a fusion of authorship and the print
business existed.

Whereas, Authorship and Ownership have long been closely intertwined in copyright
law. Indeed one of the most notable features of statute of Anne, 1710 was that it
recognized authors as first owners of the literary property they created. This concept
has been repeated in United Kingdom’s Copyright Act of 1988declares that the author
of a work is the first owner of copyright . The rule that copyright initially vests in the
author is, however, subject to a number of exceptions. The first and most important
concerns works made by employees. Exceptions also exist in relation to Crown
copyright, parliamentary copyright, and to works created by officers of international
organizations.

Page 13
WHAT ARE THE EXCEPTIONS TO THE RULE THAT THE CREATOR OF
A WORK OWNS THE COPYRIGHT?

Copyrights are generally owned by the people who create the works of expression,
with some important exceptions:

If a work is created by an employee in the course of his or her employment, the

employer owns the copyright.
If the work is created by an independent contractor and the independent contractor
signs a written agreement stating that the work shall be “made for hire,” the
commissioning person or organization owns the copyright only if the work is
(1) a part of a larger literary work, such as an article in a magazine or a poem or
story in an anthology;
(2) part of a motion picture or other audiovisual work, such as a screenplay;
(3) a translation;
(4) a supplementary work such as an afterword, an introduction, chart, editorial
note, bibliography, appendix or index;
(5) a compilation;
(6) an instructional text;
(7) a test or answer material for a test; or
(8) an atlas. Works that don’t fall within one of these eight categories constitute
works made for hire only if created by an employee within the scope of his or her
employment.
If the creator has sold the entire copyright, the purchasing business or person
becomes the copyright owner.

WHO IS THE FIRST OWNER OF COPYRIGHT

The author of the work is the first owner.

In case the author is employed by newspaper, magazine etc under a contract of

service, the proprietor will be the first owner in the absence of an agreement to the
contrary in the case of a literary, dramatic or artistic work.

Page 14
Where a photograph is taken, or a painting or portrait drawn for a valuable
consideration at the instance of person, such person is the first owner.

Where any address or speech is delivered in public, the person delivering is the first
owner and where it is delivered on behalf of another person such other person is the
first owner.

In case of Government work, Government shall be the first owner.

In case of work made or published by or under any public undertaking, it shall be the
first owner.

Page 15
 5: CASE STUDY

AAMIR RAJA HOSSAIN V. CINEVISTAS LTD11

THE FACTS OF THE CASE :-

One Mr. Aamir Raza Husain claims to be a theatre personality of some standing with
experience in acting and direction of plays as well as films. His wife Mrs. Virat
Husain also claims a similar experience. It is their case that at the time of the Kargil
War. In the month of May/June, 1999 between India and Pakistan, they used to spend
their time with the jawans and used their theatre infrastructure to bring singers and
mimics to the Army Base Hospital to cheer the Indian soldiers. They claim to have
visited the Line of Control, and particularly the Kargil, Drass, and Batalik Sectors,
Army Battalions, conducted interviews and made a lot of research. Thereafter they
launched a play by name "Fifty Day War" in Delhi on 1st January, 2000. The play is
stated to have been seen by the Prime Minister and the Cabinet Ministers who
suggested converting it into a film. In May, 2001, they submitted their script for the
military clearance and the Ministry of Defence approved the script and granted the
permission. Mr. Aamir Raza Husain and his wife are also the Directors of a Company
floated by them, which is known as M/s. Amazing Motion Picture Co. Pvt. Ltd. They
also run two societies formed under the Societies Registration Act known as M/s.
Stagedoor and M/s. Showbiz. In the month of May 2001, these three organisations
entered into an Agreement with one M/s. Cinevistaas Ltd., for making a film, for
which M/s. Cinevistaas Ltd. a Public Limited Company, was to provide the finance. It
however appears that disputes developed between the parties and after mediation, this
Agreement was mutually terminated.

11
2004 (1) ARBLR 248 Bom, 2003 (3) BomCR 827, 2003 (27) PTC 425 Bom
Page 16
ISSUES WHICH CAME UP DURING THE PROCEEDINGS OF THE CASE

(A) WHETHER DAMAGES FOR BREACH OF CONTRACT ESTIMATED AT

RS. 5 CRORES, COMPENSATION FOR THE WRONGFUL LOSS DUE TO THE
BREACHES AND RECOVERY OF THE AMOUNTS MISAPPROPRIATED AS
ALSO LOSS OF PROFIT AND CLAIMED INTEREST AT THE RATE OF 18%
PER ANNUM ON THIS AMOUNT?

(B)WHETHER A PERMANENT INJUNCTION RESTRAINING MR. HUSAIN

AND OTHERS FROM MAKING A FILM IN RESPECT OF THE KARGIL WAR
INFRINGING THEIR COPYRIGHT IN RESPECT OF THE SCRIPT?

(C)WHETHER A MANDATORY INJUNCTION TO HAND OVER THE

PROPERTY INCLUDING RAW STOCK AND EXPOSED STOCK OF FILM OF
APPROXIMATELY 12,530 FEET?

(D) WHETHER A DIRECTION TO HAND OVER THE PERMISSIONS ISSUED

BY MINISTRY OF DEFENCE TO SHOOT THE FILM IN THE KARGIL AREA
AND AN INJUNCTION ON UTILISING THOSE PERMISSIONS.

Page 17
6. RATIO & JUDGEMENT

RATION

THE CREATIVE INTELLIGENCE OF MAN IS DISPLAYED IN MULTIFORM

WAYS OF AESTHETIC EXPRESSION BUT IT OFTEN HAPPENS THAT
ECONOMIC SYSTEMS SO OPERATE THAT THE PRICE LESS DIVINITY
WHICH WE CALL ARTISTIC OR LITERARY CREATIVITY IN MAN IS
EXPLOITED AND MASTERS, WHOSE WORKS ARE INVALUABLE ARE
VICTIMS OF PIFFLING PAYMENTS."

WE CANNOT IGNORE THAT THE IDEA IN PROVIDING THE COPYRIGHT A

STATUTORY PROTECTION IS TO ENCOURAGE ART AND ORIGINALITY
AND NOT TO STIFLE IT.

JUDGEMENT

The appeal and the petition both stand disposed of. After the order was pronounced,
Mr. Divan, learned Counsel appearing for the Respondent No. 1 applied for stay of
this order for a period of 8 weeks and/or continuation of the ad interim injunction
which was granted by the learned Single Judge on 28th August, 2002. Mr. Chitnis,
learned Counsel appearing for the Appellants, opposed this prayer submitting that the
request for an early hearing in this matter was made on the footing that shooting will
become difficult from October onwards. Considering this aspect, we are not inclined
to entertain this request for stay. THE REQUEST IS REJECTED.

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 CONCLUSION

The Copyright Act, 1957 is a comprehensive Act. The object of this Act is thou shall not
steal. This Act is drafted in tune of English and American laws. This Act safeguards the
ownership of unpublished work also in addition to the protection grated to publish work. In
the case of unpublished work the author must be a citizen of India or domiciled in India at the
time of the creation of the work. Copyright in an architectural work will subsist only if the
work is located in India irrespective of the nationality of the author. Ownership of original
work is only protected through the statute and common law in India does not offer any
remedy for the same. Copyright subsists in the original work the reproduction of the
adaptation will be possible only with the consent or license of the copyright owner of the
original work. Where the owner of a copyright in an original work licenses another person to
arrange or adapt it, for example to base a film script or play upon a book, the copyright in the
arrangement then vest in the arranger, who has originated it.The Copyright Act, 1957 is a
comprehensive Act. The object of this Act is thou shall not steal. This Act is drafted in tune
of English and American laws. This Act safeguards the ownership of unpublished work also
in addition to the protection grated to publish work. In the case of unpublished work the
author must be a citizen of India or domiciled in India at the time of the creation of the work.
Copyright in an architectural work will subsist only if the work is located in India irrespective
of the nationality of the author. Ownership of original work is only protected through the
statute and common law in India does not offer any remedy for the same. Copyright subsists
in the original work the reproduction of the adaptation will be possible only with the consent
or license of the copyright owner of the original work. Where the owner of a copyright in an
original work licenses another person to arrange or adapt it, for example to base a film script
or play upon a book, the copyright in the arrangement then vest in the arranger, who has
originated it.

Page 19
 BIBLIOGRAPHY

PRIMARY SOURCES

 Dinwoodie, Graeme B., Hennessey, William O., Perlmutter, Shira,

International and Comparive Patent Law, London: LexisNexis Mathew
Bender, 2002.
 Gervais, Daniel, The TRIPS Agreement: Drafting History and Analysis, 2nd
ed., London: Sweet & Maxwell, 2003.
 Gibson, Johanna, Intellectual Property, Medicine and Health, Current
Debates, London: Ashgate Publishing Ltd., 2009.
 Goldstein, Paul, Copyright, Patent, Trademark and Related State Doctrines,
7th ed., New York: Foundation Press, 2012.

SECONDRY SOURCES

 http://studymoose.com/lis-pendens-essay
 Anderson, Angela J., “Global Pharmaceutical Patent Law in Developing
Countries – Amending TRIPS to Promote Access for All”, bepress Legal seris,
2006.
 Amit Sen Gupta, “Final Amendment to India’s Patent Act”, People’s Democracy,
Vol. XXVIII, No.40, October 03, 2004.
 Archana, Jatkar A., “The Indian Patent (Amendment) Act, 2005 and the Novaris
Case”,
 TRADE LAW BRIEF, No. 3, 2008.

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