Author's Rights- Are they really being protected?
AbstractThe general meaning of the word author is used to simply denote the creator of a certain work. Legal terminology attempts to broaden the scope, but the eventual outcome is that the implication of the term is left open ended. Thus, the word "author" remains undefined.
The objective of this paper is to:
- Highlight the importance of defining the term author, and
- Provide the foundation for greater protection rights of the creators.
The Platform of Confusion
Copyright is an exclusive right to do or authorize others to do certain acts in relation to literary, dramatic, musical and artistic works, and cinematographic films and sound recordings. The exclusive right for doing the respective acts extends not only to the entire work, but even covers in its ambit, substantial part thereof or to any translation or adaptation. It begins to subsist from the moment of creation of the work. An idea cannot be protected under Copyright law, as it is not available in a material form.[1]
The object of Copyright law is to encourage authors, composers, artists and designers to create original works by rewarding them with the exclusive right for a stipulated time frame, to exploit the work for monetary gain.
It is a well established fact that the people who economically exploit the copyright are greater beneficiaries of the Copyright law as compared to the creators of the works of Copyright.
The US Copyright Act of 1976[2] provides to authors protection of his copyrights, for the "original works of authorship". To fall under the ambit of this provision the work must be considered as deemed "fixed", when presented in a tangible or material form.
Correspondingly, the Indian statute attempts to define an author with respect to the types of work, i.e., literary, dramatic, artistic, cinematographic, etc.[3]
Even so, it will be noticed that most statutes skirt the issue of author and authorship. The stress is laid primarily on what can be protected, and that, is merely works of authorship.
Under the US Copyright Act, the legal connotation of the term author has in fact two worrisome aspects. Firstly, the term author has not been defined clearly anywhere in the Act, and secondly the terminology used as author is conveniently passed on to an employer, as is seen in the case of a "works made for hire" set up.
Definitions, left for interpretation, or rather the lack of them, are likely to be footholds for future dilemmas over unclear terminology. The principle cause of dispute under Copyright law is that the term "author" till date remains undefined, unclear, ambiguous and traveling on the wheels of precedent.
Thus, to dissect for the purpose of understanding clearly, I shall attempt to ascertain who is the rightful possessor of the title of author.
Do We Really Know who the Author is?
An author must be celebrated and given his due, as he is the individual who enables the:
- formulation,
- assimilation, and
- execution
of his innovative ideas and original views.
Whereas in legal terminology, an author is implied to mean the creator of a particular work and is granted exclusive rights to reproduce, broadcast, perform, display, inter alia.
An author's work is a mirror image of his unique qualities and characteristics that distinguish him from other authors. In this manner work is determined and credited to a particular author. This helps the receiver in making the association of a certain style of work with a particular author. It is done on the basis of what is expressly called authorship.
The core exists in Authorship
Authorship in layman's language is understood as the act of initiating a new idea or theory or writing. Legal ideology, however, refines it in view of the any Copyright Act across the globe. Thus, what constitutes authorship is construed by the attribution of one's original expression or by an extension of one's representative sensibilities, put down on a medium. Elementary factors which qualify one's authorship are:
- The thought process which goes into the creation and composition of the work;
- The skill by which he attempts laboriously to arrange for the lay out;
- The unique characteristics showcasing his originality, and;
- The intention which is behind the work.
It has been seen that an original and unique work results from the process of authorship of an author and Copyright law is really intended to serve and protect the author. Therefore, if Copyright Law takes it roots from the existence of an author, an author would only naturally take his roots from authorship.
Point of revelation
The Supreme Court in the case CCNV v Reid[4] identified certain characteristics that establish the employer-employee relationship under the general Laws of Agency. These are as follows.
- The employer decides and controls the manner of work, location and equipment.
- The employer controls the schedule of work, the payment, and the right of the employee to hire assistants.
- Mainly, such businesses justify the existence of the employer.
These observations were stated to establish what would constitute a "work for hire" environment. It states that in cases of salaried employment, there are greater chances of it being a "work for hire" set up.
It is evident from the US Copyright Act that only the author or those deriving their rights from the author can rightfully claim copyright. In the "works made for hire" exception, the employer is referred to as the author. This exception tries to imply that the copyright ownership vests in the employer, but in reality divests much more. Moral rights are forced to retreat into the wings.
The employer is someone who merely provides, pays and supervises, but does not really contribute to the formulation of the work with respect to authorship. If the provision of amenities were argued as contribution, then the logically speaking the inspiration derived from the masses, would grant the latter a right to claim protection as authors. Thus, mere contribution, be it amenities and facilities, or be it inspiration, cannot justify one to be called an author.
Authorship validates the work of an author. Thus, calling someone an author who has not created the work himself is unfounded. The act of an employer taking over the status of an author simply strengthens the unfair distribution of rights. The little that is left attached to the status of author, after divesting ownership is also taken away from the same.
What Is All This Fuss About Moral Rights?
Moral rights and integrity rights, take their origin from the French concept of respecting a creator's personality, which is reflected by way of his work. ["Droit au respect de l'oeuvre" explicitly forbids mutilations or distortion of the authors work. "Droit 'la paternit"][5], is the right of attribution which disallows a non-author from asserting the presence of his name on a copyright material that has not been created by him.
Moral rights cannot be transferred, unlike copyright, which is essentially an economic right. Moral rights attempt to establish a sense of general acceptance and greater respect of a creator or an artist, especially in cases where the creator has no control over his work, e.g.- in course of employment. Integrity rights cast an obligation on the user of the copyright material, to refrain from derogating the honor and reputation of the author, even if by the manner or the place at which it is exhibited.
The Berne Convention refers to "Moral rights" under Article 6bis, but the US Copyright Act for one, has not fundamentally implemented the concept even though it claims to have adhered to the Berne Convention. [The claim is that the common law of misrepresentation and unfair competition and § 43(a) of the Lanham Act, 15 USC § 1125(a)(1)(A), which prohibits "false designation of origin, false or misleading description of fact" that is "likely to cause confusion, ... mistake," or deception about "the affiliation, connection, or association" of a person with any product or service, defamation (libel) law covers these aspects already. In 1990, the U.S. Congress passed the Visual Artists Rights Act, 17 USC § 106A that specifically gave authors of Visual Art the rights of attribution and integrity. Being self contradictory, it seemed that their earlier defense of moral rights being covered by the aforementioned provisions suddenly needed separate cover under the Visual Artists Rights Act.][6]
However, many countries have upheld the importance of moral rights. One of them is Australia, which hails the objective of moral rights and integrity rights. China awakened to this concept of giving special attention to an author's right as late as 1990. China, unlike UK[7], attempted to give a broader scope with limited exception, even though it remains to be fundamentally implemented. In Canada, the case of Morang Co. V Lesueur[8], the issue of control over the eventual use or display of an authorized reproduction of his or her work in the hands of a third party purchaser, only aggravated the awareness to moral rights more. Interestingly, a distinction between moral rights and economic rights has been made well herein. I quote, "The principal economic benefit to the artist or author was (and is) the 'sole right to produce or reproduce the work or any substantial part thereof in any material form whatever' (s. 3(1))[9]. The economic rights are based on a conception of artistic and literary works essentially as articles of commerce". The Statute of Anne was made for the reduction of a printer's monopoly. This case brought forth the imbalance of rights and interests that lie as the basis of Copyright law.
Indispensability?
§201 (b) of the Copyright Act, 1976[10] while divesting the title of the author to the employer, gives an option of an agreement, to the contrary, by means of a written instrument agreed between the concerned parties. A clear chance for an author to keep his rights further implies that the reason why such an option has been included in the provision is that without these rights the author is virtually incapacitated. This is a clear example of convenience wherein laws of agency cross the thin line of separation into the realm of copyright law. If the term author were defined under the copyright law, then on the grounds of equity the real author is awarded with a better negotiating standpoint.
A classic example is when there is a person, fairly unknown, authoring a book, the publisher shall insist on assignment of most or all rights. The author, per se, is left with royalty as compensation. But if there is a well-known author, that person can then dictate their terms, retain more rights and utilize what the Copyright Act has contemplated for the real "authors"- protection. A popular and famous writer would already have transgressed to a level of authority wherein he/she can dictate his/her terms and conditions. But who is going to safeguard the novice? A famous author who writes a column for a paper, in some cases would want to keep a copy of collected works of all his/her articles. As a famed personality, the possibility of commanding one's own set of rules to assert, with regard to consent to use, copy, distribute and generally deal with the work in question is far greater than that of a novice. Is such disparity justified? Aren't we all equal before the law?
In the case of the moral rights of an author the copyright material user could use prior consent as a defense. Thus, if the qualities determining authorship are laid down and subsequently, a definition for the author also laid down, a wave of change shall be seen. This can be better understood with the following illustration:
- 'X', a copyright material user knowingly violates the moral and integrity rights of the creator i.e. the real author. 'X' uses the defense that his act did not attribute to the violation of such rights. Now for the purposes of this Act, the rights being violated are the inalienable rights of the author. The employer, even by contract, is transferred only the economic rights. Who is affected? The creator. The true author.
- 'X' is the supervisor for a researcher 'A'. 'X' adds his name to a paper in which he has not really contributed anything substantial. The ideas in the paper are then considered to be exceptional by the community. 'A' looses out on getting full recognition. However, he is unlikely to complain, as he as he needs the supervisor's approval to graduate.
Thus, if the term author were defined clearly, the seriousness of the issue of the protection of moral rights and integrity rights will arm the creator with a stronger voice. When it is ascertained who is the author and what all are the rights, not only will the employer not suffer any reduction or face disputes in his rights and authority, but the author will be able to find compensation by enforcing his rights that have been violated.
Conclusion
An interesting twist of events comes into light through the Berne Convention which left the issue of authorship open ended for the member countries to define and conceptualize. So what are we really protecting when we say, "We are protecting the rights of the author"? If the author in actuality is the creator, and the creation is credited by the authorship, then wouldn't that technically deny the right of the employer to avail of protection, "as an author"?
Undisputedly, an employer is the person who provides the amenities, for the fulfillment of a task for a stipulated amount of remuneration. What does he create? Livelihood. Is that the justification for him becoming the cause of birth of an idea? On one hand we attempt to attribute certain qualities that constitute an author and on the other hand we conveniently place the employer in the shoes of the author, simply for the transference of rights of ownership of the copyright. Is it morally right to alienate the substructure on what the entire building of rights stands on?
Every law has a flip side to it and the Copyright Act, under the provision of "work for hire" attempts to fairly accommodate the employer who is providing for the amenities that would facilitate the work. The US Copyright Act, in the Corporate arena, specifically in the case of "works made for hire" calls the employer the author, to fastidiously infer the transference of the copyrights. The implication of such convenient setting is grave and appalling for an author who is the real heart and soul of his creation.
It can be safely concluded that the employer can be called the copyright owner, if, by contract the copyright is transferred. Copyright ownership is affected by the transfer or license of copyrights. But in no manner is this transfer the employer's license to be called the author.
Copyright ownership is the central character around which each claimant revolves. An author universally is the only person who can possess and control this right, as at least, the initial owner or first owner. An author can divest this right by assignment or license. An author is the person who creates a work. A work that is created by his ingenuity and that is called authorship. An employer is a provider of the necessities conducive to the required environment, to produce the work. An employer does not create. He merely provides.
Therefore, if:
Author = creator + first owner + authorship
Employer = provision of (environment + amenities) - creation
Then,
Authorship = author = creator ≠ Employer
Since the title of author, for the purposes of the law, goes to the employer, not only is this provision ethically wrong, but also many advantages that could be provided to the creator are taken away. If the author merely divests the copyright ownership, he still retains the honor, reputation and future possibilities. Attribution to himself, recognition, and clear authority in lawsuits shall help him face the day with more faith in the system.
It would, thus, be wise to reconsider the direction in which we are headed. The purpose of law is to safeguard all. But the essential pivotal point in Copyright law is the author. If that it self remains unclear, the entire purpose of the Copyright Act is unclear. Understandably, many factors will require to be changed and that suggests a serious upheaval of historical precedents. Yet the need of the hour requires that it be done before it's too late. The act of saying, "for the purposes of this Act, the employer shall now be called the author", defeats the entire purpose of why copyright laws were set up in the first place. Therefore, it is imperative that a necessary balance be achieved by defining the terms author and authorship in order to uphold the justice of equity, and not profess unfairness.
[1] Indian Copyright Act of 1957
[2] Copyright Act of 1976, 17, USC
[3] Copyright Act, 1957 of India states that "author" means-
(i) in relation to a literary or dramatic work, the author of the work;
(ii) in relation to a musical work, the composer;
(iii) in relation to an artistic work other than a photograph, the artist;
(iv) in relation to a photograph, the person taking the photograph;
(v) in relation to a cinematograph film or sound recording, the producer; and
(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created.
[4] Community for Creative Non-Violence v. Reid - U.S. Supreme Court
[5] French Copyright law has four moral rights: Droit au respect de l'oeuvre (right to integrity), droit au nom (the right to paternity), droit de divulgation (right to divulge the work) and dorit de reprentir ou de retrait (right to "take the work back").
[6] Moral Rights of Authors in the USA Copyright 1998 - Ronald B. Standler.
[7]Chapter 4 of Copyright, Designs and Patents Act 1988
[8] 1911 45 Supreme Court Of Canada 95
[9] Copyright Act of Canada (R.S. 1985, c. C-42)
[10] Copyright Act of 1976, 17, USC
