India: Assignment´ Looked Into By Copyright Board

Last Updated: 1 July 2008
Article by Manisha Singh

The substantive point of law covered in the present case, Bharati Dutta v. Dr. Saradindu Basu & Anr. 2008 (37) PTC 178 (CB), pertains to section 19A (2) of the Copyright Act, 1957. The particular section enumerates the mode of assignment of copyright. Assignment of copyright is explained under section 18 of the Copyright Act 1957.

Section 19: Mode of assignment –

[(1)] No assignment of the copyright in any work shall be valid unless it is in writing signed by the assignor or by his duly authorised agent.

(2) The assignment of copyright in any work shall identify such work, and shall specify the rights assigned and the duration and territorial extent of such assignment.

(3) The assignment of copyright in any work shall also specify the amount of royalty payable, if any, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.

(4) Where the assignee does not exercise the rights assigned to him under any of the other subsections of this section within a period of one year from the date of assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.

(5) If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.

(6) If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.

(7) Nothing in sub-section (2) or sub-section (3) or sub-section (4) or sub-section (5) or sub-section (6) shall be applicable to assignments made before the coming into force of the Copyright (Amendment) Act, 1994.

The case of the petitioner/ complainant, who is the eldest daughter of late Dr. D.D. Basu, relates assignment of the copyright of the books authored by him. As per the agreements of Dr. Basu with the publisher, the copyright and all incidental rights were to devolve on his eldest daughter.

The respondents, who are his son and one of his daughters, are disputing the said assignments in favour of the petitioner.

The respondent claimed that since the author, late Dr. D.D. Basu, had realized the entire amount of royalty payable, the said assignments in question were rendered infructuous. Even assuming that the assignment was valid, it was contended that the petitioner had not exercised the rights within the period of one year from the assignment and consequently, the assignment had lapsed under section 19(4) of the Act. Also, as no time limit for the assignment had been mentioned, under section 19(5), the period would be for five years. And in the present case the same has elapsed.

Another contention was raised that Para 7 of the deed though which the petitioner claimed her right was not as assignment in the terms of the Copyright Act, 1957. It mentions that on author's death the copyright, alongwith all other incidental rights and the royalty payable under the Agreement, would devolve on the author's eldest daughter. And in order to qualify as a will, it has to meet the statutory requirements of the Indian Succession Act, 1925. Moreover, it will not qualify for exemption under article 23 of the Indian Stamps Act, 1899, which provides for an exemption to assignment of copyright under section 18 of the Copyright Act.

Controverting the claims, the petitioner claimed that as long as the book was sold she was entitled for royalties. Further, she denied the allegation that she had not exercised her right within one year. However, she conceded to the contention of the respondent that her right of assignment lapses immediately after five years.

The primary issue that was looked into by the Court was regarding the definition of the term 'assignment'. It was observed that the word 'assignment' was not defined under the Act. Relying upon the decision of Gramophone company of India Ltd. v. Shanti Films Corporation [AIR 1997 Cal 63] wherein it was held that whether it was assignment has to be ascertained from the writing itself.

Looking into various dictionaries and law lexicons the Court came to the conclusion that the words 'assignment', 'transfer', 'transmission' and 'devolution' all convey the same meaning. Law of assignment under the Copyright Act is broad enough to include transfer to one or more family members to the exclusion of other legal heirs. Thus, this interpretation leads to the inescapable conclusion of assignment of the rights under the Act to the petitioner.

Thus, being an assignment, the same would come within the purview of the exemption under article 23 of the Indian Stamps Act.

The Court held that there is no distinction between effective date of assignment and actual date of assignment and gave an order stating that all the nine assignments had lapsed in terms of section 19(5).

Comments

This is a very important case as it deals with the meaning and scope of the term 'assignment'. The Court has rightly held that the meaning of the document has to be gathered from the writing and the words used therein. This view is supported by the fact that the law prescribes no particular form or expression of drafting an assignment except that it should be in writing and signed by the assignor. One can also rely upon Haydon's rule of statutory interpretation that the courts must adopt the construction that suppresses the mischief and advances the remedy.

© Lex Orbis 2008

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