The ambiguities regarding joint authorship in India are subject to definition and judicial reasoning that has defined its contours within copyright laws. Multiple creators or contributors present the conundrum of joint authorship, which further offers an erratic jurisprudence on joint authorship in India. Krupa Thakkar recounts the several case laws that have predominated the discourse on joint authorship in India. Krupa also sheds light on how they have defined the concept and how it is still being formulated.
By Krupa Thakkar, BLS LLB from Government Law College, Mumbai, Maharashtra. Krupa is pursuing her LLM in Corporate and Commercial Laws from Maharashtra National Law University, Mumbai.
The term joint authorship is easy to define but often tricky or somewhat ambiguous to understand. Nevertheless, the concept is crucial as it ascertains various other factors that are incidental to it.
The Copyright Act 1957 (hereinafter the ‘Act’) provides a statutory definition of ‘joint authorship’. It defines the same as:
“a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.”
However, this definition is not always sufficient to determine joint authorship. This is where the role of judicial decisions, opinion of jurists and foreign courts come into play.
Since the area of codified Intellectual Property Rights is relatively new, it is important to read and understand the Indian laws and judgments on the subject and the international conventions and common law.
A provision similarly worded to Section 2(z) of the Act in India is found in the UK law of the Copyright Design and Patents Act 1988. In a well-known authority on all the issues of the copyright, the essential ingredients of joint authorship as provided in it are:
“A joint author must collaborate with the other author(s) in the production of the work. Subsequent authors will not result in a work of joint authorship. However, the existence of collaboration must be a question of fact and degree. The author must provide a significant creative output.”
Thus, a joint author is expected to contribute a significant amount of skill, labour and effort. Since copyright subsists in expressing ideas in literary work, the joint author must participate in writing and share the responsibility of expressing ideas.
Although it is not necessary for a joint author to literally ‘write’ the work, they should be directly responsible for what appears on the paper. This requirement was described as ‘something which approximates to penmanship’.
Speaking from Case Laws on Joint Authorship in India
In Institute For Inner Studies & Ors. vs Charlotte Anderson, the Delhi High Court has referred to the concept of joint authorship in a matter involving a book.
In the case, the judge observed that the plaintiff had edited and compiled the lectures. Thus, it was prima facie necessarily involved intellectual contribution towards creativity. Furthermore, the court noted that compiling, preparing and transcribing lectures is hard work and requires labour and creativity. So it was observed that the plaintiff could claim to contribute to the authorship of the work.
Similarly, in another judgment delivered by the Delhi High Court in Najma Heptulla vs Orient Longman Ltd. And Ors, the expression joint authorship was elaborately explained.
The issue of this case was whether Professor Kabir, who had translated and described the thoughts of Maulana Azad in the English language, could be the joint author of the work ‘India wins Freedom’.
The HC observed that in any literary work, both the language and subject matter are of importance. Thus, if two persons have composed work pursuance of a joint design by exercising their intellect, they should be regarded as the joint authors of the work. After all, the language of the work is the medium of presentation of the work.
Similarly, the importance of the writer was over-stressed in the case Donoghue vs Allied Newspapers Ltd.
It was noted that the copyright belonged to the person who expressed the ideas in writing and not to the one whose adventures were written down. However, Delhi High Court observed in case Najma Heptulla vs Orient Longman Ltd. And Ors, that the reasoning of Donoghue’s case would not hold in the present times as the concept of joint authorship as it exists today did not exist back then. Thus, observing that it would not be logical to give the entire credit to the person in whose language a literary work is written without attributing it to the person whose thoughts are being transcribed.
Now, this is where the concept of joint authorship assumes importance.
Joint authorship involves a conscious contribution of intellect, skill, labour and efforts resulting from a collaborative design the authors contemplate.
In Ramesh Sippy vs Shaan Ranjeet Uttamsingh And Ors., Justice Kathawalla made an important observation concerning joint authorship in partnership firms. Since a partnership firm is an association of individuals, it was held that when a partnership firm owns the copyright, the individual partners are the joint owners of the copyright.
The creation of a film involves various steps, including funding the film. So all the partners are regarded as the joint authors as such and the owners of the copyright. Joint authorship means ownership of copyright jointly as well as severally. This implies that one joint author cannot use the work without permission or grant from the other joint author (s) in the absence of an agreement.
This has also been provided by the judgment of the Bombay High Court in Angath Arts Private Limited vs Century Communications Ltd. It was held that the exploitation of a copyright-protected work in any manner, viz. assigning, transferring, licensing, or sub-licensing, must happen jointly in concurrence with the other joint authors.
Allahabad High Court echoed a similar view in Nav Sahitya Prakash And Ors. vs Anand Kumar And Ors., wherein it was held that a joint owner of copyright could not without the consent of the other joint owner grant a licence or interest in the copyright.
The judgment also cited the decision Chancery Division in Powel vs Head, where it was held that if one joint owner grants a licence without the consent of the other, it does not bind the former. As a result, the other joint owner can sue the licensee for infringement.
It is evident from the above case laws that the jurisprudence on the present concept of joint authorship has evolved a long way and is still evolving. However, from various judicial decisions both in India and abroad, it is now settled that the primary factor for joint authorship is that the individual must be actively involved in the creation/expression of that work.
Moreover, the work that is jointly authored is indivisible, so the transfer, licensing or assignment of that copyright by one joint author shall require the consent of other joint authors of the work.
The Act is silent on the incidental aspects of joint authorship. Rightfully so, because the concept is still evolving, it would be fallacious to limit it by putting statutory restraints. However, there can be codification regarding the issues mentioned above that are settled now.
The concept of joint authorship in India is still evolving, with statutes, amendments, precedents, juristic opinions, and international conventions as guiding factors. It is thus recognised that the rights and duties of joint authors require statutory backing for mutual benefits.
 Section 2(z) of the Act.
 Section 10(1) of Copyright, Design and Patents Act 1988.
 Laddie, Prescott & Vitoria on The Modern Law of Copyright and Designs, 2011 Edition Lexis Nexis
 2011 SCC OnLine Del 3887.
 AIR 1989 Delhi 63.
 Donoghue v. Allied Newspapers Ltd., (1937) 3 All. ER 503
 AIR 1989 Delhi 63.
 (2013) 3 AIR Bom R 1228.
 2008(4) BomCR838.
 AIR 1981 All 200.
 1879 12 Ch.D 686.