GUEST POST: LOKESH VYAS: TANTALIZING TERMS OF PROTECTION FOR UNPUBLISHED WORK UNDER THE COPYRIGHT ACT, 1957: TIME TO REVAMP THE STATUS QUO?

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I am pleased to bring to you our next guest post by Lokesh Vyas. Lokesh is currently a 4th year student at Institute of Law, Nirma University, Ahmedabad. In this post he analyses a critical point missed out by the draftsmen of Chapter V of the Copyright Act, 1957 in relation to term for protection of unpublished works.

 

Undefined Protection to unpublished Works

Copyright is one of the most ubiquitous branches of IP laws and is often called as ‘people’s right’. Notably, copyright is nothing but a value given to a tangible expression of an intangible idea. All the expression which are original are copyrightable and governed by the Copyright Act, 1957. The fixation of one’s idea is the primary and ineludible requirement for claiming the copyright as held in RG Anand Case. However, there exists a conundrum in the copyright act regarding the protection of the work as enshrined in provisions section 22 to section 29. Notably, sections 22 to 29 require publication for the calculation of the time of protection and remain silent about the works which are unpublished.

Conversely, the TRIPS and Berne Convention do not require publication as a requirement for the calculation of the period of the term of protection. Pertinently, Article 12 of TRIPS which is germane to the term of protection mentions both ‘publication’ and the ‘making’ of the work as criteria to calculate the time of protection. Similarly, Article 7 of the Berne Convention also does not mandate publication as a requirement for copyright protection.

Interestingly, there can be two possible interpretations. Firstly, it is a mere exercise of the discretionary power of the member state as given by the TRIPS. However, it would defy Article 1 of TRIPS which standardizes TRIPS for the legal framework of IP. Secondly, it implies that not all copyright work can be protected under the Copyright Act, 1957. The same has also been fortified by Section 16 of the Act by declaring that no copyright is protected except as provided in this Act.

Interestingly, it insinuates that there can be no copyrighted work outside the purview of the Act thus, limiting copyright protection within the contours of the Copyright Act, 1957. Moreover, it fortifies the statutory nature of copyright and indicates that copyrights can only be effectuated by the Copyright legislation. The same was also held in the Rameshawari Photocopy case and Entertainment Network (India) Ltd. Vs. Super Cassettes Industries Ltd. wherein copyright was held to be a statutory right subject in its operation to the provisions of the Copyright Act, 1957.

 

Fixation Vs. Publication: What is important?

Interestingly, copyright creation is a process of evangelizing an idea into expression and entails three stages. Firstly, an idea comes into mind; secondly, its expression and fixation into some medium, thirdly, its publication. Finally, the registration of the expression [either published or unpublished]. However, not all three stages are to be fulfilled in order to claim copyright, mere fixation of work is enough.

Notably, section 2(y) defines work and Section 13 lays down the works in which the copyright exists. Pertinently, neither section 2(y) nor Section 13 of the Act prescribes publication as a requirement for protection of the work. Imperatively, section 13(1) expatiates the kinds of works protected in copyright and, Section 13(2) (ii) deals with the publication and non-publication of the work and recognizes the unpublished work of an Indian citizen. In furtherance of the same, Section 14 defines copyright as an exclusive right to do or authorize the doing of any of the mentioned acts in respect of work.

Interestingly, the kernel of these exclusive rights is the communication of the work to the public which itself connotes the publication of such work. Hence, the publication is right given to the copyright holder. Thus, it is the discretion of the author to exercise this right of publication and cannot be an imposition for copyright.

Furthermore, Section 4 protects the author from the unauthorized publication of his work thereby, suggesting the copyright protection on the unpublished work. Notably, the provision clarifies that a work does not require publication to claim copyright. In absence of this provision, an unauthorized publication of an unpublished work would be a valid publication and enable such person to claim protection over the work under Chapter V of the Act owing to its definite date of publication. Here, the legislators seem to have anticipated a situation wherein an unpublished work gets published wrongfully by someone other than the author. Similarly, section 31A deals with the compulsory license in unpublished work thus enraptures a situation wherein the unpublished copyrightable work exists. Furthermore, it is to be noted that the Act allows the voluntary registration of both published and unpublished works with different requirements as given under Chapter IV of Copyright Rules, 1957 and Chapter X of Copyright Act, 1957. Logically, it implies that copyright can be both in published and unpublished works and the registration is merely a voluntary act. Therefore, the publication of the work shall not be a requirement of the work.

Contrastingly, sections 22 to 29 only deal with the work which is published and remain silent about the term of protection for unpublished works.

Ergo, there exists a contrariety in the provisions of the copyright Act regarding the protection of published and unpublished works. Here, the unpublished work would either be eternally protected or not protected at all. Astonishingly, such publication centric protection does not only defy the objective of copyright law by clouding the specific term of protection for unpublished work but also questions the viability of the fundamental requirement of ‘fixation’.

In DB Modak Case, the court emphasized on the originality of the expression without mentioning the term ‘publication’ and held that the Copyright Act is not concerned with the original ideas, but with the expression of thought.  Furthermore, in the R.G. Anand case, Anil Gupta v. Kunal Dasgupta and Barbara Taylor Bradford v. Sahara Media Entertainment Ltd the Court held the expression of the idea as the prerequisite for copyright protection without any mandate of publication. Similarly, Walter Vs lane, Designers Guild Ltd. v. Russell Williams (Textiles) Ltd, and University of London Press Limited v. University Tutorial Press Limited which are often banked on by the Indian Courts underlined originality of expression as the primary requirement for copyright protection bereft of any publication requirement. None of these cases require publication for the protection of copyright. Hence, the problem is in the provision itself.

The Parallel Perplexities of Publication?

The questions appertaining to the protection of unpublished work arose in the U.S.A. in  Harper & Row v. Nation Enterprise, wherein the court provided copyright protection to unpublished memoirs of Gerald Ford. Similarly, in Salinger v. Random House, Inc the court protected unpublished letters to the author. However, it would be a gaffe to analogize both these cases because one case deals with a memoir and the other case deals with unpublished letters. Notably, not all kinds of works are intended to be published by the author, ergo, there shouldn’t be the same protection for both unpublished works not intended for publication and works intended for publication but not yet published. Illustratively, in case of letters [as happened in Salinger’s case], diaries, or personal journals, authors generally do not wish to publish them. Conversely, in memoirs [like Ford’s case], biographies, books, and articles are generally intended to be published by the authors. Therefore, there shouldn’t be the same protection for both kinds of work.
Furthermore, publication has its own pros and cons. One the one hand, it is not possible for everyone to publish the work because of the economic constraints. Moreover, it is not always wise to publish the copyrighted work owing to its cost and value addition to society. Illustratively, a love letter written by X might be the subject matter of copyright yet it does not add any significant value to the society.

On the polar side, the publication of the work is important in order to ascertain the ownership and authorship of the work. In this techno-geek era, the possession of the work often empowers a person to claim the copyright because it is more difficult to prove the authorship than justifying the ownership. Furthermore, the advancement in the technology has also reshaped the way works are verified especially the literary work wherein the handwritten manuscripts have been replaced by digitized files and data.

Nevertheless, the publication of the work [especially the work which is intended to be published] is the primary means to communicate it to people thereby enabling its access to the work. Furthermore, the publication of such work bridges the gap between the author and society and satiates the primary objective of IP law i.e. to promote the progress of science and useful arts as was held in Feist Publications Inc. v. Rural Telephone Service Co. Inc.

Conclusion

International conventions on copyright have advocated the protection of unpublished work and India’s copyright law has also acknowledged the copyright in the unpublished. Thus, it can be concluded that requirement of publication under Chapter V [term of protection] is an infelicitous drafting flaw that needs to be amended now. One temporary way to solve this problem can be an arrangement like UK’s 2039 rule which provides 50 years’ protection to all those works which were unpublished as on 1 August 1989. However, for such solution the authorities would have to first choose a threshold date for unpublished works like 1st August 1989 like U.K. and also particular number of years like 50 years as decided by U.K. Although this will not be an all time solution to this problem yet it will surely provide a way to protect unpublished by bringing them on the same deadline. In absence of such arrangement, it would be difficult to calculate the term of protection for the works created in different point in time e.g. works made in 1950 (hypothetically) and those crated after 1950. Both these works should not be given the same protection because they don’t add same cultural and historical value to the  society.

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