You Are Hired!

Coolie Part I
Defining "Rights" in India
Defining Copyright
In general, Copyright means the exclusive right
provided under the copyright act of the land, like
Copyright Act of India, 1957, to do or authorise the
doing of acts such as
Reproducing the work
Issuing copies of the work to public
Performing the work in public (such as musical or dramatic
work)
Communicating the work to the public
Making translation of the work
Making any adaptation of the work
Making a cinematograph film or sound recording of the work
Selling or Giving on commercial rent (such as a computer
programme)

Distinction of Work for Hire in U.S. and India
Under the Copyright Act, 1976 of U.S., although the
ownership of copyright initially lies with the author(s)
of work, in work for hire scenario, i.e, the work is
commissioned by the employer, all the rights of
copyright rests with the employer and the employer
will be treated as the author unless the parties i.e.,
employer and the employee, having agreed
otherwise in a written agreement.

Works Made for Hire.In the case of a work made
for hire, the employer or other person for whom the
work was prepared is considered the author for
purposes of this title, and, unless the parties have
expressly agreed otherwise in a written instrument
signed by them, owns all of the rights comprised in
the copyright. U.S. Copyright Act, 1976, 201 (b)
(Copyright Ownership and Transfer)



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Work For Hire Clause
_____________________________________ hereby
certifies that (the "Work") was specially commissioned
by and is to be considered a "work made for hire"
under the Copyright Act of ______, as amended, for
____________________________________
("Company"), and that Company is entitled to the
copyright thereto.
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Work for Hire Clause
Without limiting the foregoing, for good and valuable
consideration, receipt of which is hereby
acknowledged, the undersigned hereby assigns and
transfers to the Company, its successors and
assigns, absolutely and forever, all right, title, and
interest, throughout the world in and to the Work and
each element thereof, including but not limited to the
copyright therein, for the full term of such copyright,
and any and all renewals or extensions thereof, in
each country of the world, together with any and all
present or future claims and causes of action against
third parties arising from or related to the Work and
the copyrights therein, and the right to use and retain
the proceeds relating to such claims and causes of
action.

Distinction of Work for Hire in U.S. and India
However, under the Indian Copyright Act, 1957 (section
17), in Contract of Service or Apprenticeship scenario, the
employee will be the author of the work and the
employer will be the owner of the work if it is proved that
the work is created during the course of employment.

The Indian law treats the employer as the first owner of
copyright of such work made for hire unless there is a
written agreement to the contrary.

1. In the case of a work
2. made in the course of the authors employment
3. under a contract of service or apprenticeship,
4. the employer shall,
5. in the absence of any agreement to the contrary,
6. be the first owner of the copyright therein
- Section 17 (c), Indian Copyright Act, 1957.

What Does the Distinction Imply?
While the Indian Copyright Act clearly distinguishes between
authorship and ownership of work created by the employee
during the course of employment, the U.S. laws, by default,
assigns the authorship and ownership to the employer in work
for hire scenarios.

Such a distinction provides moral rights to the author i.e., the
employee for rightful attribution of such work wherever
appropriate.





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Rights of Authors
Paternity Right or Identification Right or Attribution Right
The right to have the authors name on the work created by the
author

Divulgation Right or Dissemination Right
The right to disseminate the authors work and includes the
economic right to sell the work for valuable consideration

Integrity Right
The right to maintain the purity and integrity of the work.
Although subjective, the author has the right to object to the
treatment of the work which degrades the work and thereby
derogatory to the reputation of the author.

Retraction Right
The right to withdraw the work from publications if the publication
infringes authors exclusive rights to reproduce and distribute the
work or author feels that due to passage of time and changed
opinion it is advisable to withdraw the work.
Moral Rights of Authors
Except the Divulgation or Dissemination Right, which
are influenced by economic or commercial
considerations, all the other rights i.e., Paternity
Right, Integrity Right, and Retraction Right could be
rightfully termed as Moral Rights of Authors.




Protection of Moral Rights of Authors.
The moral rights of authors are protected through Section 57 of
the Indian Copyright Act, 2012 irrespective of the fact that
whether the author has assigned the ownership rights to others
or not.

Section 57 of Indian Copyright Act, 2012. Authors special
rights.
1) Independently of the author's copyright and even after the
assignment either wholly or partially of the said copyright, the
author of a work shall have the right-

(a) to claim authorship of the work; and

(b) to restrain or claim damages in respect of any distortion, mutilation,
modification or other act in relation to the said work if such distortion,
mutilation, modification or other act would be prejudicial to his honour or
reputation:

However, failure to display a work or to display it to the
satisfaction of the author shall not be deemed to be an
infringement of the rights conferred by this section.
(Refer to the 3 idiots! controversy involving Vinod Chopra Films
and Chetan Bhagat)


Assignment of Copyright
The owner of the copyright in an existing work or the prospective
owner of the copyright in a future work may assign to any person
the copyright either wholly or partially and either generally or
subject to limitations and either for the whole term of the
copyright or any part thereof

Where the assignee of a copyright becomes entitled to any right
comprised in the copyright, the assignee as respects the rights
so assigned, and the assignor as respects the rights not
assigned, shall be treated for the purposes of this Act as the
owner of copyright and the provisions of this Act shall have
effect accordingly.
Section 18 of Indian Copyright Act, 1957 & Indian Copyright
(Amendment)Act, 1994

No assignment of the copyright in any work shall be valid
unless it is in writing signed by the assignor or by his duly
authorised agent (Section 19 of Indian Copyright Act, 1957 & Indian
Copyright (Amendment)Act, 1994).

(Refer to the Upaid Vs Satyam story; Rosenstein - A South
African Story; Lett A Canadian Story)
About Fair Use
Fair Use is a balancing act to protect the rights of the
author i.e., the creative and the rights of the user.

Because Copyright is not an absolute right granted
to the author but an exclusive right with limited
exceptions.

Fair Use as a principle promotes the limited use of
the copyrighted material by the users without
obtaining permission from the copyright holder

According to Article 13 of TRIPS, Exceptions to
Copyright
Must be Special
Must not be in conflict with normal exploitation
Must not unreasonably prejudice the interests of the copyright
holder



Application of Fair Use The Four Factor Test
1. Purpose and Character
a) Private Study, Teaching, Research, Library Archiving, Criticism,
Commentary, News Reporting, Search Engines; etc.,

b) The onus of Justification for fair use is with the user who has to
demonstrate or prove as how the use of the copyrighted material
advances the knowledge and not for commercial use i.e.
Transformative Vs Derivative (Burden of Proof on the User)

2. Nature of Copyrighted Work
a) Use of Unpublished Work or Manuscript may not be construed as
fair use as Copyright holders have the right to decide on the
platform and circumstances for the first publication of such work

b) There is greater protection available for creative works such as
art, literary, music, poetry, etc., than non-fiction.
Application of Fair Use The Four Factor Test
3. Extent and Substantiality of the Use
a) There must be substantial reproduction of the copyrighted
work

b) Should exclude ideas, subject matter, themes, plots or
historical or legendary facts

c) Should be confined only to the form, manner, and
arrangement and expression of the idea by the author of the
copyrighted work


Application of Fair Use The Four Factor Test

4. Effect of the use on potential market or value of the
original work (BoP on the copyright holder)
a) Weighing on the probability that the use of the copyrighted
work would negatively affect the authors ability to exploit
the potential market for the work

b) Weighing on the probability as whether the use of the
copyrighted work acts a direct market substitute for the
original work, especially when the licensing of the original
work is available for commercial purposes

Application of Fair Dealing in India
Section 52 of Indian Copyright Act, 1957 deals with
Certain acts not to be infringement of copyright. It
includes many purposes such as

(a) a fair dealing with a literary, dramatic, musical or artistic
work [not being a computer programme] for the purposes
of-
(i) private use, including research;
(ii) criticism or review, whether of that work or of any other work;

(b) a fair dealing with a literary, dramatic, musical or artistic
work for the purpose of reporting current events-
(i) in a newspaper, magazine or similar periodical, or
(ii) in a cinematograph film or by means of photographs.

(h) the reproduction of a literary, dramatic, musical or artistic
work-
(i) by a teacher or a pupil in the course of instruction; or
(ii) as part of the questions to be answered in an examination;
or
(iii) in answers to such questions;