Journal of Intellectual Property Rights Vol 10, March 2005, pp 112-118 Employer’s Copyright vis-à-vis Author’s Right: An Unresolved Legal Dilemma Harsh Kumar The National University of Juridical Sciences, N U J S Bhawan, 12 L B Block, Sector-III, Salt Lake, Kolkata 700 098 Received 11 August 2004, revised 7 February 2005 This article explores the protection to authors-employees and freelancers-in India in the light of the recent US decision in the Tasini case. Traversing the history and context of the Tasini case, particularly, explaining the court’s philosophy behind the recognition of a freelancers right over his employer/publisher, the paper highlights the concept of authorship in India and the significant differences in the manner employees and freelancers are treated under the Indian legal system. Keywords: Tasini, employees’ copyright, freelancer’s copyright The bundle of rights, which copyright professes to be, than an employer/publisher. This decision might has a profound impact in the determination of render security to freelancers against the exploitation authorship. With the theory of indivisibility of of their works by employers/publishers in the copyrights gaining redundancy,1 coupled with the American world. However, when viewed in the Indian increase in electronic publishing, complex issues arise context, the decision opens an arena of complex as regards authorship of a copyrightable work. issues as already aforesaid like the determination of Laws virtually vest authorship to the creator of an copyright ownership to the intricate issue of the original work2. This simplicity in the basic applicability of moral rights; the analysis of which understanding of copyright ownership, however, forms the crux of this paper. wanes fast in the context of works where there is a Within the Indian law, there exists little transfer in the medium of publication itself, like from background material as regards authorship of a work the print to an electronic set up. There thus arise converted from print to an electronic medium. An unresolved issues concerning the determination of the analytical approach has therefore been adopted to first author, and the balancing of distribution rights analyze the unresolved question of authorship in the between the first and the second author of a creation. context of works converted into electronic formats. The legal dilemmas are all the more pronounced in The first part of the paper traverses in brief the cases where electronic publishing is not conceived as history and context of the Tasini case, particularly a possibility. Further, there remain fundamental explaining the court’s philosophy behind the questions concerning the territoriality of electronic recognition of a freelancers right over his publications, the problem of manipulations affecting employer/publisher. The second part is an elaborate the moral rights of the authors, and questions discussion of the Indian scenario with respect to pertaining to the vesting of reproduction rights in authorship in the backdrop of the Tasini case. The electronic formats, i.e., whether reproduction rights legal provisions as existing in the United Kingdom vests with the original author or the have also been analysed. In the end, the paper employer/publisher3 concerned? 4 addresses the plausible conclusions and the complex The Tasini case,5 as decided upon by the American unresolved legal dilemmas spurred up in the course of Supreme Court, has centred attention towards the legal analysis. aspect of rights sharing within copyrights. Albeit in The Tasini Case the context of different legal provisions, the case The primary issue within copyrights concerns the reflects the existence of authorship rights to a rights of authors and freelancers to the ownership of freelancer (who is an independent contractor) rather their works, in particular, with aspects concerning the _____ rights to use and re-use individual contributions †Email: [email protected] across all media in various formats. With newspaper Published in Articles section of www.manupatra.com HARSH KUMAR: EMPLOYER'S COPYRIGHT VIS-À-VIS AUTHOR'S RIGHT 113 publishers developing significant digital technologies, criterion of revision as postulated under the section9 the importance of settling the authorship issues across Further, by showing the relevant aspects of each all media has emerged as a fundamental concern.6 The article, viz. the authorial, the periodical details, and disputes for authorial rights have often been raised the particular issue of the print publication along with before the domestic courts of the EU member states, the relevant page number, the electronic format and were resolved in favour of the journalists with maintained its nexus with the print publication. any electronic exploitation without express consent of The Appellate Court granting summary judgement 7 the authors deemed a copyright infringement . to the freelancers overruled the legal justification for In the United States, this legal interpretation the exploitation by the employers as heralded by the towards the authorship rights of a freelancer vis-à-vis District Court. The key interpretation for veering his publisher took shape through the Tasini case. round for the freelancers are imbued in the application Focusing on the myriad interpretations of the rights of the following reasoning towards the deciphering of conferred under Section 201 (c) of the US Copyright the authorial rights. 8 Act , the Tasini converged on the issue of copyright It was observed that the publishers dealing with the ownership of a newspaper article as contributed by public through the relevant databases indirectly freelancers to print periodicals, and subsequently infringed upon the authorial rights of licensed by the publishers to electronic databases. communication,10 the right, which subserved merely The litigation was initiated by a group of six to the freelancers. Though the databases were freelancers who had contributed 21 articles to three described as containing ‘new anthologies of print periodicals between 1990-93. While the authors innumerable’ editions or publications, the Appellate enjoyed copyright in each of their articles, the print Court disagreed with the District Court and held them publishers had registered collective work copyright in far from being revisions of the stated works. each of their periodical editions. Vide a licensing An important aspect, however, left untouched was agreement with two computer databases companies, - the concept of `transferability of the privilege' of the Lexis/Nexis and UMI, the print publishers Section 201(c), particularly concerning the wide allowed the copies of the articles of the freelancers to ramifications it has. Besides, there has been little be placed into three databases. Though the articles discussion as regards the ‘work for hire’ doctrine, and were placed along with all the other articles of the on its applicability with the realms of the US periodical, each article was retrievable by a user of Copyright Act11. This aspect unfortunately was not the database in isolation devoid of the context the the subject of discussion even in the US Supreme original print publication presented. It was in this Court, which later upheld the findings of the backdrop that an infringement of rights of authorship Appellate Court. through the inclusion of articles in the databases was The harmonization of the rights of the author of the alleged, particularly, as the freelancer’s contracts with collective work (i.e., the publisher/employer)with the print publishers in no instance secured any respect to the author of an article consent to publication. (freelancer/employee) formed the crux of the The publishers defence to infringement was based Supreme Court’s analysis, which rightly interpreted upon the privilege accorded under Section 201(c) of Section 201(c) without diminishing the author’s the Copyright Act, which allowed them reproduction exclusive right in the article. Unlike microfilms, the and distribution rights, including the right of revision database was held not to perceptibly reproduce of that collective work, and any later collective work articles as part of the collective work, or even qualify in the same series. as revision12. The publications’ contention of the The defence of the publishers was upheld by the manipulation of search result to produce entirety of District Court, which held the work published in the articles from a particular periodical edition was databases as a revision of the collective work by the brushed aside as no vouch for non-infringement of the print publishers. The fact that the databases authorial rights. The case has thus pervaded a scenario ‘preserved some significant original aspect of the where the proprietors are forced to knuckle down to a printed works’ namely, that they preserved the free settlement with the writers. Though the decision ‘selection of articles,’ by copying all the articles opens consideration of the extent of copyright originally assembled in the print periodical, met the protection to authors’ vis-à-vis the need for Published in Articles section of www.manupatra.com 114 J INTELLEC PROP RIGHTS, MARCH 2005 dissemination of information; it settles the proposition Act 1957, limits its application merely to the that copyright law cannot be subverted to protect determination of ownership rights of an employer vis- merely the interest of the corporations, but even à-vis an employee, or a freelancer as the case may be. creates