Introduction registration of assignment is not compulsory a prospective

  Introduction

“Copyright
consists of a series of related rights, each of which may be licensed: one of thase
is tha right to distribute a work, which refers only to tha first sale and not
to subsequent sales. This means that once a physical copy of a work (such as a
CD, a DVD, a book) is sold within a country, tha rights holder can no longer
control tha distribution of that copy ,this is termed  as “exhaustion of rights”. As a
result, tha buyer may resell tha copy to othars. However, this principle does
not apply to online distribution; In othar words, while a CD or a book can be
freely resold from your buyer, this is not allowed with an mp3 album or an
electronic book purchased online. Generally, in such cases, tha end-user
license indicates what you can or can not do with that copy.”

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Meaning

  “Asignment is essence a transfar of
ownership even if it is partial.Since tha registration of assignment is not
compulsory a prospective assignee has no means of knowing whethar thare are
prior assignments or licences except through tha assignor. Agreements can be
made to assign future copyright works.”

 

  
 Where tha appointee does not
practice tha rights doled out to him inside time of one year from tha date of
assignment,tha task in regard of rights will be esteemed to have slipped by
after te expiry of said period unless otharwise determined in tha task.

In the event that tha time of task isn’t
expressed it will be considered to be five years from tha date of task.

In the event that tha regional degree of
tha task of tha rights isn’t determined, it will be ventured to stretch out
inside India.  

 

    Facets of Copyright Assignment  
   

1.     
“It is opportunity for tha first owner of copyright. Tha
task must determine tha measure of copyright vide S. 19(3) of tha Copyright
Act”. “Tha maker should not allocate or forgo tha appropriate to get
eminences to be shared on an equivalent premise with tha trustee of copyright,
subject to specific conditions. vide S. 18(1) stipulation of Tha Copyright
Act, 1957″.

2.     
In tha instance of a task of copyright in any future work, it
should produce results just when tha work appears. In such manner, ‘appointee’
incorporates tha lawful delegates of tha trustee, on the off chance that he
bites the dust before tha work appears”. vide S. 18(1) stipulation of tha
Copyright Act

3.     
Tha proprietorship might be alloted eithar completely or just
for a piece of tha work being referred to”. vide S. 18(1) of tha Act

4.     
Tha Copyright Assignment must be in composing and marked by tha assignor
or by his appropriately approved specialist”. vide S. 19(1) of tha Act

5.     
Tha term of task should likewise be determined. Tha Delhi High
Court perceived S. 19(5) and expressed that if tha task deed is noiseless about
tha term, it might be esteemed to be 5 years from tha date of task”.

6.     
Tha assention deed may determine tha regional degree of such
task. On the off chance that quiet, it should be dared to stretch out inside
India”. vide S. 19(6) of tha Act

7.     
Tha task should be liable to modification, augmentation, or end
on terms commonly settled upon by tha parties”. vide S. 19(3) of tha Act

8.     
Where tha chosen one neglects to practice his rights inside one
year from tha date of task, tha task in regard of such right might be esteemed
to have passed, unless otharwise indicated in tha task deed”. vide S.
19(4) of tha Act

9.     
If tha task is in opposition to tha terms and states of tha
rights officially allocated to a copyright society to which tha maker is a
part, it should be regarded void”. vide S. 19(8) of tha Copyright Act

10.  Tha maker is qualified
for resulting sovereignties in tha course of future misuse of a cinematographic
film, which incorporates his work, othar than by method for shows in a silver
screen corridor”. For instance, tha maker will be qualified for resulting
eminences for satellite right, home video, web rights, tha and so on.
Comparable provision has been included for tha instance of sound chronicle.
vide S. 19(9) and 19(10) of tha Copyright Act4″In tha case of a
manuscript, tha copyright being a personal property of tha owner can be
transmitted by testamentary disposition”. vide S. 20 of tha Act

11.  Tha equitable
assignment is just tha agreement to assign.

12.  Tha assignee has tha
rights of- translation, abridgment, adaptation, dramatic and filmmaking in tha
work.

13.  For relinquishment of
work, tha author has to give notice in prescribed form to tha Registrar of
Copyrights or by way of public notice. On its receipt, Registrar shall publish
it in tha Official Gazette. With 14 days of tha publication, tha Registrar
shall post tha notice on tha official website of Copyright Office, so that such
notice remains in tha public domain for not less than three years. Such right
shall cease to exist from tha date of tha notice. vide S. 21 of tha Copyright
Act

Under S. 18(1) a moment stipulation has
been embedded. “It gives that no such assignments should apply to any
method of abuse that did not exist or was not known in business utilize when tha
task was made.

 

This revision strengthans tha position
of creator if new methods of abuse of tha work come to exist.

 

S. 18(1) gives that tha proprietor of a
copyright in any work or forthcoming proprietor of a future work may appoint
tha copyright, and tha stipulation to this sub-S. illuminates that in tha
instance of future work, task will come into drive just when tha work appears.

 

Anothar stipulation under S. 18(1),
embedded by Copyright Amendment Act 2012, gives that tha creator of an abstract
or melodic work joined in a cinematograph film or sound chronicle should not
relegate tha appropriate to get sovereignties in any frame othar than as a
piece of tha film or sound account.

 

S. 19 discusses tha method of task.
Sub-S.(3)has been corrected to give that tha task should determine tha ‘othar
contemplations’ other than eminence, assuming any, payable to tha Assignor. Tharefore,
it isn’t important that exclusive money related remuneration by method for
sovereignty could prompt task.

 

Another sub-S.(8)has been embedded
making tha task of copyright void if as opposed to tha terms and states of tha
prior task to a copyright society in which tha creator of tha work is a part.
This alteration is an endeavor to streamline tha business hones. Anothar
change, inclusion of sub-S.(9), by giving case to sovereignties from tha usage
of tha work used to make a cinematograph or sound account regardless of any
task of tha copyright in tha same, is an endeavor to justify tha business hones
pervasive in tha film industry.

 

S. 19A identifies with question
regarding task of copyright. This S. gives that on receipt of a grumbling from
a bothered gathering, tha Copyright Board may hold request and pass arranges as
it might esteem fit, including a request for tha recuperation of any
sovereignty payable”. “Tha second stipulation is revised to give that
pending transfer of an application for renouncement of task, tha Copyright
Board may pass any request as it esteems fit with respect to execution of tha
terms and states of assignments.

 

Tha extent of S. 19A that arrangements
with question determination concerning tha concede of rights has been restricted
to assignments.

 

Question under tha S. are presently for
the most part be settled inside a half year after tha receipt of an objection
by tha Copyright Board, and tha Copyright Board may now likewise pass between
time orders with respect to usage of tha terms and states of task including any
thought to be paid for tha happiness regarding tha rights allocated.

 

  
S. 19 of  Copyright Act, 1957 as
amended in 2012, lists certain exhaustive factors that should be taken into
consideration by tha parties involved, while preparing a copyright Assignment
Deed.  An analysis of tha factors
provided under S. 19 & relevant case laws are summarized below:

a) Although assignments and licenses are
nothing but contractual obligations, thay differ from general laws of contract
in certain way. Unlike contracts, which permit oral (as held in 1Gramaphone Company of India Ltd. vs.
Shanti Films Corporation  )as
well as unsigned contracts, an assignment deed should always be in writing.

b) “Tha parties to tha assignment
are required by law to specifically identify tha work that has to be assigned, tha
nature of rights that are assigned, tha consideration, royalty to be paid, mode
of payment and tha term and territory of such assignments. As in tha previous
post, tha assignor has tha option to limit and specify tha nature of rights
that are granted to tha assignee.”

c)” In case tha assignment deed
does not specify  term of tha assignment,
tha default term of tha assignment shall be deemed to be for a period of five
years. Furthar, in case tha territory for which tha assignment is not
specified, tha territory shall be deemed tha geographical territory”.

 

Tha Copyright Amendment Act, 2012  was enacted with  intention of 
protecting tha rights of  underlying
authors of cinematograpact. It has amended S. 19 of tha Act to include three
additional clauses.

Tha newly added provisions can be
summarized below :

a) 2″
Any assignment that is as opposed to tha terms and states of tha rights
appointed to a copyright society of which tha creator is a part, might be void.
In tha entertainment industry it is common practice for authors of tha
underlying works of a cinematographic film or sound recording to assign his/her
work to tha applicable copyright society before approaching a producer. In
order to protect tha interests of authors of underlying work of films and sound
recordings, this provision restricts members of a copyright society from
assigning tha works with terms that are contrary to that of its assignment to a
collecting society”.

b) 3Clauses
19(8) and (9) of tha Copyright Amendment Act, 2012 specifically provides that
“nothing contained in any assignment deed relating to tha assignment of
any underlying works in cinematographic film act, shall affect tha right of tha
underlying authors to claim equal share of royalty for exploitation of tha
works in any form othar than as part of tha film in cinema halls. Although, thase
provisions were intended to benefit tha underlying authors, tha ambiguous
manner in which it was drafted had already created numerous ruckuses within tha
industry as well as in tha legal domain. With multiple underlying authors being
part of a single cinematographic film or sound recording, tha amendment or new
rules had completely failed to define what tha term ‘equal distribution of
royalties’ meant”.

    

Foreseeable disputes

1.     
“Tha first dispute which may arise is that as regards tha
period of copyright assignment. Tha statute is very particular that an
assignment has to be for a specified period even if thare is an agreement in
contrary”. vide S. 19(2) of tha Copyright Act

2.     
Again, “in a situation where assignee neglects to practice
his rights doled out to him, and tha assignor’s activities don’t impact such
disappointment, than, tha statute engages tha Copyright Board, on receipt of a
dissension from tha assignor, to take cognizance of tha case and make necessary
inquiries as it may deem fit. It furthar gives a discretionary power to tha
Board where it can revoke such assignment”. vide S. 19A(1) of tha
Copyright Act

3.     
“In tha case of a monetary dispute over a copyright
assignment, tha Copyright Board has tha power on of a complaint from tha
aggrieved party, to hold an inquiry and pass necessary order including an order
for tha recovery of any royalty payable vide S. 19A(2) of tha Copyright Act.
Any such final order must be passed within a period of six months from
tha date of receipt of tha complaint. Delay in compliance shall oblige tha
Board to record tha reasons thareof”. vide S. 19A(3) of tha Copyright Act.

 

       “Hon’ble Delhi High Court in tha
case of  Pine Labs Pvt. Ltd. It was
decided that tha duration of assignment must also be specified. Tha Delhi High
Court recognized S. 19(5) and stated that if tha assignment deed is silent
about tha duration, it shall be deemed to be 5 years from tha date of
assignment”. 

 

        “In tha case of 4Saregama India Ltd. V. Suresh Jindal, it was
held that tha first dispute which may arise is that as regards tha period
of copyright assignment. Tha statute is very particular that an assignment has
to be for a specified period even if thare is an agreement in contrary vide S.
19(2) of tha Copyright Act”.

  Moral Rights in Copyright Assignment

   Moral rights are those
types of rights which remain with tha author even if copyright is assigned by
him to some anothar person.

1.     
Ownership can be claimed by creator of work.

2.     
He has ideal to guarantee harms if there should be an occurrence
of any contortion or alteration of his work.

3.     
He shall have tha right to damages in case harm is caused to
goodwill of creator ,provided such act is done before tha expiration of tha
term of assignment.

 

Conclusion

Thare
is alarming rise in tha cases of Copyright infringement cases creating question
on tha feasibility of Assignment of Copyright. Tha sole objective of process of
assignment is to provide both pecuniary as well as distribution benefits to tha
original work of tha creator. It cannot be used to deprive tha original owner
permanently from his creation of work.

1 AIR 1997 Cal 63

2 inserted by 2012 amendment

3 inserted by 2012 amendment

4  AIR 2006
Cal. 340.