Who is an author?
The Indian Copyright Act, 1957 (‘Act’) defines an ‘author’[1] as, “in relation to a literary or dramatic work, the author of the work, in relation to a musical work, the composer; in relation to an artistic work other than a photograph, the artist; in relation to a photograph, the person taking the photograph; in relation to a cinematograph film or sound recording, the producer; and in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person who causes the work to be created“. The definition of an author is generic and no further guidelines have been given in the Act to understand the purview of this definition.
It is important to understand the scope of an ‘author’ under the Copyright law, because, the whole purpose of this law is to allow the owner of the copyrightable work to reap benefit from it. This brings us to the question ‘who is the owner of copyright’?
Authorship and Ownership
Authorship and ownership of copyright are closely intertwined with each other[2]. The Act states that an author is the first owner of the copyrightable work[3], subject to certain exceptions dealt under the Act[4], for instance, in the case of an employer-employee. In brief, an employer shall be the first owner of the copyright created by the employee during the course of his or her employment, in the absence of any contract to the contrary.
The argument for granting the ownership of the copyright to the employer for a work created by the employee, during the course of his or her employment, is that employers not only give facilities and material for creation of that work but also provide compensation to the employee for creation of work, which is sufficient to transfer ownership.
The Act does not explicitly mention ‘who will be the owner of academic works created by students during the course of their education’. The Courts in India have delved into this subject, with one of the earliest decisions to this effect being in the case of Fateh Singh Mehta Vs. O.P. Singhal and Ors.[5], which was a review petition filed by the Fateh Singh Mehta (Defendant in the Suit). The facts leading to the case were that, O.P. Singhal (Plaintiff in the Suit) had obtained a degree in Master of Engineering during the academic session, 1979-80 from the University of Jodhpur. As a part of obtaining the degree, a student was required to submit a written thesis on a selected special subject. The Plaintiff submitted a written thesis on “An Experimental Investigation of Swirling Flow in Cylindrical Chambers” under the guidance of the Defendant. The Defendant had also applied for Ph.D in the University of Jodhpur and sometime in the year 1980-81 submitted his dissertation on “An Aerodynamic Study of Swirling Jets” as required for completing his Ph.D. It was during the reading of his thesis that one of the professors in the Mechanical Engineering Department of the University itself, objected to the thesis and stated that the thesis made by the Defendant was not his original work but portions of it have been verbatim copied from the thesis made by the Plaintiff. The Defendant argued that no copyright subsists in the work created by the Plaintiff. More so, it was pleaded that he was the guide / mentor of the Plaintiff and in his dissertation, the Plaintiff had acknowledged with gratitude the expert guidance given to him by the Defendant and also for his permission to use the rig fabricated for the Defendant’s doctor of philosophy degree.
The Hon’ble High Court of Rajasthan in dealing with the pleadings of the Defendant, relied on Section 13 of the Act to establish, at the outset, that “the originality which is required relates to the expression of the thought but the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work that it should originate from the author. Thus it is well settled that the originality in work relates to the expression of thought“. The Court concluded the Defendant had actually reproduced verbatim paragraphs of the dissertation submitted by the Plaintiff. Thus, the copyright vests with the original owner, being the student in this case and not the professor.
Another interesting take on this has been put forth by the Spanish Supreme Court in a recent case[6] where a university professor had reproduced without the consent, certain sections of his student’s research work. A very interesting argument taken by that professor was that the student lacked authorship in the research work, since it was the professor who had given a lecture of the topic at a conference attended by the student. The Court dismissed this argument stating that, it is a part of a teacher or professor’s profession to contribute towards the creation of research work by their students by providing ideas, guidance and suggestions.
Conclusion
When we look at the afore-mentioned judgments of two different jurisdictions, it is clear that the idea remains the same, whilst deciding on the authorship of an academic work created by a student during the course of their education. The following factors needs to be considered:
- The academic work although created by the student using the facilities of a university, are a result of their intellectual creation;
- As opposed to a creation by an employee in the course of their employment, a student does not create their academic work for the monetary benefit of the university or professor;
- The professor or university cannot claim rights over it merely because they are either delivering lectures or guidance or are providing the facilities for such creation since it is a part of their duty and employment to do so.
However, the above are subject to any agreement to the contrary that the student may enter into with a university. On a related note, it is interesting to note that in September 2019, the Department for Promotion of Industry and Internal Trade (‘DPIIT’) released the Draft Model Guidelines on Implementation of IPR Policy for Academic Institutions (‘Model Guidelines’) drafted by Cell for IPR Promotion and Management (‘CIPAM’)[7]. Per the said guidelines, the ownership rights in scholarly and academic works generated utilizing resources of the academic institution, including books, articles, student projects/dissertations/ theses, lecture notes, audio or visual aids for giving lectures shall ordinarily be vested with the author(s). While these guidelines are yet to be considered to be made into a Bill, the intent is to create a standard IP policy throughout India for academic/ research institutions.