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Commissioned Works v. Works Made for Hire


Introduction


Authorship and ownership in a copyrightable work vary on the nature of the employment of the author. Generally, all authors do not get ownership of every work they create. For instance, a salaried employee working for a magazine publisher, even though is the author of his literary work, may not be the copyright owner. The employer shall have copyright in work created/authored by an employee in the course of employment unless there happens to be an agreement to the contrary. These works are referred to as “works made for hire.”


However, the magazine publisher may pay a commission/fee to an author to write the article or acquire the article from an author who has written it on his own initiative. In such cases, the copyright in the work remains vested with the author/creator of the work, unless the rights are assigned to the magazine publisher in the form of a written agreement. Such works are termed as “commissioned works.”


Works made for hire may seem unfair for the author as he invests himself and his intellectual capacities into the work. Hence, the Copyright Act of 1957, recognises his efforts and grants moral rights, irrespective of the ownership of the work.


Background


During the 19th century, courts showed a great deal of respect for the employee's ownership rights. The general principle until 1860 as held by the U.S. Supreme Court in Wheaton v. Peters, 33 U.S. (8 Pet.) 591, was that the person who created the work, even if employed by someone else, was the default owner of the copyright.


However, this concept changed during the first decade of the 20th century. Courts recognized that employers had a right to the artistic creations of their workers. These were governed by a mutual agreement between the employer and the employee.


Provisions under the Indian Copyright Act Related to Works for Hire and Commissioned Works


Section 17(a) of the Copyright Act provides that in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietary of newspaper, magazine under a contract between the author and the proprietor, the proprietor shall be the owner of the copyright in the absence of an agreement contrary to that. However, in all other respects, the author shall be the first owner of the copyright in the work.


Unless the rights are expressly assigned in favor of the commissioner via a written and duly executed document/assignment agreement, the copyright in commissioned works generally remains with the author/creator of the work. If the assignee/commissioner only acquires a subset of the rights included in the copyright through the assignment, that subset of rights shall be treated as belonging to the assignee/commissioner, and the remaining copyright rights, which have not been so assigned, shall belong to the author.

However, the person who commissioned the work is the initial owner of the copyright in any photograph, painting, portrait, engraving, or cinematograph film that was made or produced for valuable consideration (in the absence of any agreement to the contrary).


The commissioner is the initial owner of the copyright in any public speech or address that is delivered on behalf of another person or commissioner. In case of Government work, Government shall be the owner of the copyright in the absence of any contrary agreement.


The cinematographic film becomes the first party under Section 17(b) when a music composer or lyricist accepts a cinematographic film's offer of payment. Therefore, whether the composer of the music or lyrics is hired to compose the work under a service or apprenticeship contract, the result would be the same under Clause (c).


Conclusion


The Copyright Act clearly distinguishes between the two concepts, however, like other laws, the regulations governing works made for hire vary from country to country. The doctrine of work for hire is uncodified in many countries and actively discussed by the judiciary. This doctrine is crucial to business owners, entrepreneurs, employees as well as independent contractors.

 

Sources:

https://www.oaklaw.co.za/oak-inc-ip-misconceptions-regarding-ownership-of-copyright-in-commissioned-work/

https://copyright.gov.in/documents/copyrightrules1957.pdf

https://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_panorama_5_learning_points.pdf

https://www.plagiarismtoday.com/2019/09/05/copyright-and-commissioned-art/


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