Over the years, intellectual property has become a cornerstone of commerce, encompassing creations of the mind such as inventions, literary and artistic works, symbols, names, images, and designs.
Intellectual property mainly deals with three main tasks: creating or acquiring IP rights for-
- inventions,
- literary works, or
- trademarks, including trade names.
Protecting intellectual property from infringement by the backstop doctrines of contributory infringement and inducement of infringement, and the third step involves commercializing intellectual property rights through various selling, licensing, and assigning alternatives.
Copyright encompasses literary and artistic works, such as novels, poems, plays, films, musical compositions, and artistic creations like drawings, paintings, photographs, sculptures, and architectural designs. Focused initially on authors’ rights regarding their books, copyright has significantly evolved due to advancements in modern technology, which have changed the nature of works and the ways they are used.
The authors are vested with both economic and moral rights. The moral rights vested are with the authors and cannot be waived, but the economic rights can be transferred by two main types: assignment and licensing.
Assignment and licensing Under Copyright act are two important concepts that deal with how rights in a copyrighted work can be transferred or shared with others.
Assignment transfers all or part of your copyright to someone else. In contrast, the license is where the author retains the ownership but grants the right to use the copyright to another with limited terms specified in the agreement. These assignments and licenses should be in writing and signed by the copyright holder to be given legal effect.
In this article, we can understand the conceptual framework and provisions relating to assignment and licensing under the Copyright Law 1957.
Assignment of Copyright
Section 18 of the copyrights act talks about the assignment of copyright it means that the owner can assign its rights under the copyright to someone else
Section 18 states that the owner of the copyright can assign his copyright to any person and then the assignee has all the rights over the copyrighted work as the owner. Only the right to publish something or some copyrighted work does not mean that the assignment has been granted it is only the right to publish.
The assignee is the person who has been assigned the right of copyright and the assignor is the person who is giving his copyright.
The assignee becomes the owner of the copyright after the assignment of copyright and after his death his legal representatives will be considered as the owner of the copyright.
Modes of Assignment of copyright
According to sec 19 of the Indian copyrights act,1957 the assignment should be made in the following manner prescribed:
- An assignment of the copyright is not valid until it is in writing and duly signed by the assignor.
- The assignment must contain the copyrighted work that is being assigned and must contain the rights that are assigned. The duration and territorial limits of the assignment must also be mentioned there.
- The assignment should also contain any monetary benefits given by the assignee to the assignor or his legal heirs at the time of assigning a copyright.
- When the assignee does not exercise any right given by the assignor to him by the assignment within a period of one year then after the period of one year the assignment related to such right will automatically lapse unless there is any condition specified.
- If the period of assignment is not mentioned then it will consider as five years from the date of assignment.
- If the territorial limit is not mentioned it shall be considered to have been applicable to whole of India.
- Sub-section 2, sub-section 3, sub-section 4, sub-section 5, sub-section 6 will not be applicable to any assignment before the copyright (Amendment) Act,1994.
- Any work against the terms and condition of the assignment of the copyright by any member of the copyright shall be considered void.
- The assignment in cinematography work and sound recording does not restrict any share in royalties to the assignor. It means that the assignor will have the share in such cases.
Licensing in copyright
According to section 30 of the copyrights act the owner can grant licenses to any other person related to copyright in writing. In case of the licensed for future works the licenses shall come into effect when the work comes in effect.
Section 31 of the copyrights act provides the cases when the compulsory licenses in copyrights can be granted.
Section 31 states that if anytime at the term of copyright of a work which has been performed or published the owner of the copyright has:
- Refused to republish or refused to allow to republish the work or has refused to be made the work available to public.
- Has retained the communication with the public regarding the work.
The authorities in such cases can direct the registrar to grant the license in such cases upon receiving a complaint under this section. This license would be compulsory license. However, the owner must have been given a reasonable opportunity of being heard.
In the case of Entertainment Network (India) Ltd. vs. Super Cassette Industries Ltd. (2008), the supreme court has held that it would be restricting the provisions of this section if we will restrict the compulsory licenses to only one license holder. The compulsory licenses can be granted to more than one license holder in case of copyright. The copyright board will have to see in light of the facts of the case that whether the compulsory licenses is required to be given to others also.
