Many creative works are protected by copyright requires financial investment and professional skills for their production and further dissemination and mass distribution. Activities such as book publishing, sound recording or film producing are usually undertaken by specialized business organizations or companies, and not directly by the authors. Usually, authors and creators transfer their rights to these companies by way of contractual agreements, in return for compensation and royalty.
The compensation may take different forms, such as lump sum payments, or royalties based on a percentage of revenues generated by the work.
The transfer (or assignment) could affect all the economic rights or only some of them (partial assignment). For example, an author of a novel written in English could sell to a publisher his reproduction and distribution rights, as well as his translation rights and his adaptation rights in the novel. But the author may choose to proceed otherwise: he may decide to split the rights he has between different persons. Thus the author of a novel may assign or transfer his rights to publish and reproduce the novel written originally in English to one publisher. He may assign the right to translate the novel into, say, French, Russian and Arabic to three other publishers. In addition he may assign the right to adapt his novel into a film (or an opera or a play) to other persons.
The transfer or assignment may be granted for a specific period of time and a limited territory, or for the duration of the full term of copyright and worldwide.
Hence the copyright owner of a novel could assign to one publisher the rights to publish the book in English, for a specific territory, say, the United States of America, and for a period of 20 years. Or he may decide to assign to the same person the rights to publish the novel in English worldwide, and for the duration of copyright. The combinations here are many and depend on the negotiations between the parties.
As we have seen, assignments and transfers entail important consequences for the author. Legally, the assignee (the person to whom the right or rights have been assigned) is vested with the rights that have been contractually transferred to him. He thus becomes the new owner of such rights, for the agreed period of time and territory. It is thus important that the author be well aware about the consequences of such an operation. This is why many national copyright laws contain provisions requiring that assignments be made in writing and signed by or on behalf of the assignor, in order to be valid or effective. Such requirement helps to ensure that the author is well aware about the rights he is parting with, at what price, and on what conditions.
Transfer of copyright in Indian Perspective:
All of us are aware that the first author of the work is the owner of the work unless he assigns someone else to be the owner for a specific thing (assigning your work to be used in movies) and for a specific period of time. The owner of the copyright in an existing work may assign his work to any person the copyright either wholly or partly either for the whole term of the copyright or part of the term.
Transfer of future copyright under the Copyright Act:
Section 18(1) of the Copyright Act 1957 also says that the any prospective owner of a future work may assign his copyright. However, the recent amendment of 2012 made it amply clear that such an assignment will not extend to those mediums or modes of exploitation which did not exist at the time of the assignment. Modes of exploitation constantly keep changing due to scientific developments. As in, in the earlier days there used to be only video cassette recorders which were played and now there is MP3 players, iPods and other music players that exist. Similarly, we cannot foresee the technological developments that are yet to come and therefore, the assignment of copyright that is made today will only cover those modes of exploitation that are available today.
This new piece of legislation has come as a relief to the authors as it strengthens their position is new modes of exploitation of their work come into existence.
Mode of assignment of Copyright under the Copyright Act:
Section 19 of the Act clearly lays down the requirements to assign a copyright. They are as follows:
- Unless the assignment is in writing and is signed by the assignor, the agreement will not be valid;
- The rights assigned along with duration and territorial extent must be clearly established;
- The amount of royalty or any other consideration payable must be clearly specified;
- It is to be noted that if the assignee fails to exercise the rights assigned to him within one year of the date of assignment, then such assignment shall be deemed to have lapsed unless there is some provision to the contrary in the agreement;
- If the period of assignment is not mentioned, then it shall be for 5 years;
- Similarly, if the territorial extent is not mentioned, it shall be presumed to extend within India;
Amendment of 2012 to Section 19 of the Copyright Act:
Three clauses have been added with respect to assignment to Section 19 which basically says that royalty has to be paid to the authors whose work has been exploited in a cinematographic film other than by way of exhibition of the film in a cinema hall. This simply means that the authors are entitled to the subsequent royalties which may arise in the course of further exploitation of the film which includes their work. For example, they will also be entitled to royalty for satellite right, home video, internet right etc. This again strengthens the position of the authors of the work are the actual owners of anything apart from their work in the cinematographic film. The second clause that has been added is for sound recording and is the same as above.
What the authors can do is register their work with a copyright society and thereafter license it to whoever they like.
A creator of any work has the right to claim authorship of the work and claim damages in case of any distortion, mutilation or modification caused to his work and such an act should have been done before the expiration of the term of assignment is such an act will cause harm to his goodwill.
It is to be noted that moral rights are independent of the author’s copyright and moral rights remain with the author even if he has assigned his copyright.
So what should be learnt from the recent news on various copyright assignment issues is that while assigning your rights, it is rather important that you clearly lay down the specific right which you are assigning in order to eliminate the chances of confusion being caused. The amendment of 2012 has played a very important role in strengthening the earlier weak position of authors of works with respect to assignments. Because if someone wants to benefit from their own labour and skill, they should be able to do so without constantly fearing of getting crushed by the giants!