Copyright Ownership: Beyond Authorship

When you create something – a poem, a software application, a photograph – your first instinct is to assume you own the copyright in it. And most of the time, you are right. But copyright law does not always reward the person who does the creative work. Sometimes, the person who pays for it, commissions it, employs the creator, or directs its production ends up owning the copyright. Understanding who owns copyright, and why, is one of the most practically important questions in intellectual property law – especially for anyone working in media, technology, publishing, or the public sector in India.

The starting point: the author as first owner 🔗

Under Section 17 of the Copyright Act, 1957, the default rule is straightforward – the author of a work is its first owner. For a literary work, that is the writer. For a musical composition, it is the composer. For an artistic work, it is the artist. For computer-generated works, it is the person who causes the work to be created. The law recognises the creative labour of the individual and rewards it with an exclusive bundle of rights.

But Section 17 immediately qualifies this with a series of provisos. These exceptions are not minor technicalities – they cover a wide range of real-world situations where ownership shifts away from the actual creator. The economic logic behind these exceptions is clear: when someone invests money, resources, or direction to make a work possible, the law often recognises their claim over it.

Works made in the course of employment 🔗

The most commonly encountered exception involves employees. Under Section 17(c) of the Copyright Act, when a work is created by an author during the course of employment under a contract of service or apprenticeship, the employer – not the employee – is the first owner of the copyright, unless the parties have agreed otherwise in writing.

This is what is commonly referred to as the “work made for hire” principle in Indian copyright law. A software engineer who writes code for a tech company during office hours, an in-house designer who creates marketing material, or a researcher employed full-time to produce reports – in all these cases, the employer holds the copyright. The employee may have done the creative work, but the law vests ownership in the party who funded and directed the effort.

Contract of service vs. contract for service 🔗

A crucial distinction here is between a contract of service (employment) and a contract for service (independent contractor arrangement). The former involves an employer-employee relationship where the employer controls not just the output but also the manner of work. The latter involves hiring someone for a specific task with freedom over how they accomplish it. As noted in legal scholarship on Indian copyright, the classic test from University of London Press v. University Tutorial Press remains relevant – an examiner setting question papers at their own discretion and time was held to be an independent contractor, not an employee.

This distinction matters enormously because independent contractors do not automatically transfer copyright to whoever commissions their work. Without an explicit written assignment, the copyright stays with the independent contractor. Businesses frequently overlook this – a company that hires a freelance developer or an external agency without a proper IP assignment clause may find that it does not actually own the work it paid for.

Commissioned works: the photographer, portrait painter, and filmmaker 🔗

Section 17(b) of the Copyright Act carves out a specific rule for certain commissioned works. Where a photograph is taken, a painting or portrait drawn, an engraving made, or a cinematograph film produced for valuable consideration at the instance of another person, that person – the commissioner – is the first owner of the copyright, unless the parties agree otherwise.

So if a family commissions a portrait painter to create their likeness, or a company hires a photographer to shoot a product campaign, the commissioner owns the copyright in those works by default. The creator retains moral rights – that is, the right to be identified as the author and the right to object to any distortion of the work – but economic rights vest in the person who paid for it.

This provision reflects the economic reality that the commissioner bears the financial risk of the project. However, it does not extend to all types of commissioned work. As clarified in legal analysis of the Act, unless the copyright is expressly assigned in writing, commissioning a freelance writer or a software developer does not make the commissioner the automatic owner. The specific categories listed in Section 17(b) are exhaustive, not illustrative.

Works by journalists and the newspaper exception 🔗

Section 17(a) of the Act deals specifically with literary, dramatic, or artistic works created by an author employed by a newspaper, magazine, or similar periodical under a contract of service. Here, the ownership is split: the proprietor of the publication owns the copyright for the purpose of publication in that periodical or its reproduction for such publication. But in all other respects, the author remains the first owner.

This means a journalist employed by a newspaper who writes a feature article gives the newspaper the right to publish and reproduce it in print. However, if the same journalist later wants to include that article in a personal anthology or license it to a broadcaster, the newspaper’s ownership does not extend that far – the author retains those broader rights. It is a carefully balanced arrangement that acknowledges both the publisher’s investment and the writer’s creative ownership.

Government works and public undertakings 🔗

Works created by or under the direction of the Government of India represent another major category of non-author ownership. According to the Copyright Office’s official handbook, in the case of a government work, the Government is the first owner of the copyright in the absence of any agreement to the contrary. This applies to works made or published under the direction or control of any government department.

The same rule extends to public undertakings – entities controlled by the government. If a government body commissions a report, produces a documentary, or creates a database, copyright in that work belongs to the government or the public undertaking, not to any individual who may have physically produced it.

The term “Government work” is defined in Section 2(k) of the Act to include works made or published by or under the direction or control of the government or any department of the government, as well as works by the legislature. This has significant practical implications: government-owned copyright means the state controls reproduction, translation, and other acts relating to the work, though public access policies may allow certain uses.

Collective works and joint authorship 🔗

Copyright law also recognises situations where multiple people contribute to a single work. Under Section 2(z) of the Copyright Act, a work of joint authorship is one produced through the collaboration of two or more authors where the contribution of one is not distinct from the contribution of the others. In such cases, all co-authors are joint owners of the copyright and must act together when exercising economic rights.

A collective work is different – it involves distinct contributions from multiple authors assembled into a whole, such as an edited volume, an encyclopedia, or a journal issue. Here, each contributor typically retains copyright in their individual contribution, while the editor or publisher may hold copyright in the selection and arrangement of the whole. Without careful contractual planning, collective works can create complicated ownership disputes over who can republish, adapt, or license which portions.

Why ownership and authorship are not the same thing 🔗

One of the most important distinctions in copyright law is between authorship and ownership. The author is the person who created the work. The owner is the person who holds the legal right to exploit it. These two can – and often do – sit in different hands. As legal commentary on Section 17 notes, a salaried employee working for a magazine publisher may be the author of their literary work but may not be its copyright owner.

This separation has significant economic consequences. The copyright owner controls the right to reproduce, adapt, translate, distribute, and communicate the work to the public. The economic benefits from these rights flow to the owner. The author, even when they are not the owner, retains moral rights under Section 57 of the Act – specifically, the right to claim authorship and the right to object to any distortion, mutilation, or modification of the work that would be prejudicial to their honour or reputation. These moral rights are perpetual and non-assignable, meaning they cannot be transferred even when economic rights are fully assigned.

The landmark case of Amar Nath Sehgal v. Union of India, where the Delhi High Court upheld the sculptor’s moral rights even though the Government owned the bronze mural he had created, illustrates this principle vividly. The government as owner had no right to physically destroy or mutilate the work in a manner prejudicial to the author’s reputation.

The economic underpinning of copyright ownership rules 🔗

The various exceptions to author-as-owner are not arbitrary. They reflect a deliberate policy choice: when one party takes the financial risk of producing a work – by employing a creator, commissioning a specific output, or directing a government project – the law rewards that party with ownership. This incentivises investment in creative production. Publishers invest in authors, companies invest in software development, and governments invest in public works precisely because they know the resulting copyright will protect their economic interests.

At the same time, the law tries to ensure that creators are not entirely stripped of their connection to their work. Moral rights, the residual rights retained by journalists under Section 17(a), and the requirement that any agreement to override default ownership rules must be written – all of these function as limits on how far economic logic can displace the interests of the actual creator.

For anyone drafting employment contracts, commissioning creative work, or advising clients in the creative industries, understanding these default rules and building appropriate contractual provisions around them is not optional – it is essential. The default rules under Section 17 operate in the absence of agreement. A well-drafted IP clause in an employment or service contract can alter who owns what, but silence on the question almost always leads to disputes.

What do you think? If an independent contractor creates a piece of software for a company without any written IP assignment clause, should the law automatically vest ownership in the company that paid for it – or should the creator retain copyright unless they voluntarily transfer it? And does the current split between authorship and ownership under Indian copyright law adequately protect the interests of individual creators working in large commercial organisations?

References

1. https://indiankanoon.org/doc/1404402/
2. https://www.legalserviceindia.com/articles/copy_owner.htm
3. https://www.theipmatters.com/post/commissioned-works-v-works-made-for-hire
4. https://indiankanoon.org/doc/1136195/
5. https://www.copyright.gov.in/documents/handbook.html
6. https://en.wikipedia.org/wiki/Copyright_law_of_India
7. https://lawbhoomi.com/rights-of-owner-of-a-copyright-under-copyright-act/
8. https://singhania.in/blog/moral-rights-under-copyright-law
9. https://www.lexology.com/library/detail.aspx?g=ad310929-b387-4413-8fe4-3100575b5133