Author, Ownership and Moral Rights — Intellectual Property Rights II Notes

Author, Ownership and Moral Rights

In 1957 the Government of India commissioned a mural from the celebrated sculptor Amar Nath Sehgal for Vigyan Bhawan. Decades later the mural was pulled down and dumped in a store-room. Sehgal sued — not as owner (the Government owned it) but as author, invoking his moral right to protect his creation from mutilation. In Amar Nath Sehgal v Union of India (2005) the Delhi High Court ordered the mural returned and damages paid. Ownership and authorship, this case shows, are two different things.

Author, first owner and moral rights — three linked ideas

A. Who is the author — s.2(d)

The author is the creator, defined work-by-work:

Literary or dramatic work — the author (writer).
Musical work — the composer.
Artistic work (other than a photograph) — the artist.
Photograph — the person taking the photograph.
Cinematograph film or sound recording — the producer.
Computer-generated work — the person who causes the work to be created.

B. Who is the first owner — s.17

The general rule (s.17) is that the author is the first owner of the copyright. But five provisos shift ownership in common situations — these provisos are what the application problems test:

Proviso (a) — works for a newspaper/magazine. Where an author writes for a proprietor of a newspaper or magazine under a contract of service and for the purpose of publication, the proprietor is first owner for the purpose of publication; the author keeps other rights.
Proviso (b) — commissioned photographs, paintings, portraits, engravings and films. Where such a work is made for valuable consideration at the instance of another person, that person who paid is the first owner.
Proviso (c) — works made in the course of employment. A work made under a contract of service or apprenticeship (not covered by (a) or (b)) belongs to the employer.
Proviso (d) — Government works — the Government is first owner (s.17(d)).
Proviso (dd)/(e) — public undertakings and international organisations — those bodies are first owners.

C. Moral rights — s.57

Independently of who owns the copyright, the author retains personal, inalienable moral rights (droit moral) even after assignment:

Right of paternity (attribution) — to claim authorship of the work.
Right of integrity — to restrain or claim damages for any distortion, mutilation, modification or other act prejudicial to his honour or reputation.

Section 57(1): the author has the right “(a) to claim authorship of the work; and (b) to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the said work … if such distortion, mutilation, modification or other act would be prejudicial to his honour or reputation.”

In Simple Terms: Copyright ownership (economic rights) can be sold. Moral rights (to be named as author and to protect the work’s integrity) stay with the author for ever, even after he has sold the copyright.

🧩 WORKED EXAMPLE — the architect and the contractor

Facts. An architect creates the design of a multi-storeyed building. The contractor who constructs the building claims copyright in the design.

Rule. An architectural design/plan is an artistic work (s.2(c)(ii)); the author is the architect who created it (s.2(d)), and the author is the first owner (s.17). Merely executing a design is not authorship.

Apply. The architect conceived and drew the design; the contractor only built from it. Construction is labour, not creation of the artistic work.

Conclusion. The architect owns the copyright; the contractor cannot claim it.

🧩 WORKED EXAMPLE — the weekly newspaper article

Facts. A private company publishing a daily newspaper engages B to write an article every week for Rs.1,000 an article. Who is first owner?

Rule. Proviso (a) to s.17: an article written for a newspaper proprietor under a contract of service, for publication, vests first ownership in the proprietor for the purpose of publication; the author retains the rest.

Apply. Turn on whether B is an employee (contract of service) or an independent contributor (contract for service). If B is engaged under a contract of service, the newspaper is first owner for publication; B keeps the right to, e.g., publish the collected articles as a book.

Conclusion. For publication in the paper, the proprietor is first owner; B retains residual rights.

💡 EXAM TIP — always split ownership from moral rights

The trap. Candidates answer an ownership problem and forget that the author still holds moral rights, or vice versa.

What to write. State the s.17 owner first (economic rights), then add: “but under s.57 the author retains inalienable moral rights of paternity and integrity — Amar Nath Sehgal (2005).”

Why it scores. It shows the examiner you grasp the distinction between the economic right (assignable) and the personal right (never assignable), which is exactly what s.57 tests.

flowchart TD
    ROOT["Author (s.2(d))"]:::root
    ROOT --> OWN{"Any s.17 proviso applies?"}:::dec
    OWN -->|"No"| A["Author = first owner"]:::leaf
    OWN -->|"Newspaper contract (a)"| B["Proprietor (for publication)"]:::leaf
    OWN -->|"Commissioned photo/film (b)"| C["Person who paid"]:::leaf
    OWN -->|"Employment (c)"| D["Employer"]:::leaf
    ROOT --> M["Moral rights (s.57) stay with the author always"]:::moral
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef dec fill:#FDECC8,stroke:#B7791F,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef moral fill:#E6FFF3,stroke:#1E7A54,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

Amar Nath Sehgal v Union of India (2005) — moral right of integrity; destruction of a mural was actionable under s.57.
IPRS v Eastern India Motion Pictures Association (1977) — producer is first owner of songs incorporated in a film (s.17 proviso).
Najma Heptulla v Orient Longman (1989) — joint authorship where one contributes ideas and another the words.

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