NAME: RANJAN MISHRA
COURSE: LL.B
COLLEGE: LLOYD LAW COLLEGE
What happens when you put your hard work and time to create something, such as writing a novel, cinematographic work, recordings, etc., and keep that work in a drawer in your study table or your laptop? Does it have any copyright? Or is there any infringement possibility in such a situation? When would it be considered published? What constitutes a publication; if you give or invite a friend to read and comment on a manuscript or other work, subject to copyright, would it tantamount to publication? This article is an attempt to answer the questions of the unpublished work.
The publication is not pre-required for the copyright to subsist in a work:
As per section 13(1) of the Copyright Act, 1957 copyright subsists in an original literary, dramatic, musical, or artistic work, cinematograph films, and sound recordings. There’s no necessity of publication mentioned in the given section of the Act for the subsistence of copyright in a work. Nor does any other provision of the Act prescribe such a requisite. Therefore, under the Copyright Act, unpublished work is also protected. At the very moment, work receives copyright when it is written, provided it should be original work. However, should copyright subsist in unpublished works? What after all is the purpose of yielding copyright in unpublished works when they are not available to the public and thus, of no value to the society? The purpose seems to be to safeguard the fruits of the author’s labor against misuse by someone who illegitimately gains access to it earlier than it is published. Though copyright exists in unpublished works, it is equally true that if the authors are just saved in the hard drive of his computer or are kept in the drawer, and some dispute ascends pertaining to its authorship/copyright ownership, it would be problematic to prove to be the true and legitimate author/copyright owner. Every right has a correlative obligation. This is also true for copyright. Others can be put under an implicit obligation not to interfere with one’s copyright only if they know of its being or source. In the lack of such knowledge or notice, technically and rigorously speaking, there is no possibility of a breach scenario. Therefore, to claim copyright violation of an unpublished work, one will have to certainly prove that the alleged infringer had access to their work. Hence, the importance of publication.
Unpublished work:
As per section 3 of the Act, ‘publication’ means making work accessible to the public by issue of copies or by sharing the work with the public. Is the unpublished work opposite of ‘published’ work? What constitutes unpublished work? Does that mean the unpublished work which is not accessible to the public or the intention with which it is made known, important in determining if a work creates a published work or an unpublished one? So much ambiguity in this topic and no case law found pertaining to this subject. But one can get exact answers by the meaning of Unpublished. To analyze the meaning of Unpublished one has to bring his attention to section 52(1) (p), section 31(1), section 2 (ff), and section 6 of the act.
Section 52(1) (p):
It states that “unpublished, dramatic or musical works stored in a library, museum or other public institution for reproduction, research or study or for publication” is not a copyright infringement. “This rule implies that you can create an ‘unpublished work’ even if it is publicly available, so it appears that ‘unpublished’ work cannot be calculated in proportion to the non-public service and/or a specific purpose.
Section 31(1):
Another dimension that may be considered unpublished is provided by this section of the Act, which gives any person the right to apply for a mandatory license to publish, unpublished works, or some published works. Would anyone apply for a license to publish a particular unpublished work if they did not know of it? This rule suggests that knowledge of the existence of a work by an individual or a group (who may apply for a license for its publication) does not affect its ‘unpublished’ status – even if some knowledge is acquired then also it remains unpublished.
Based on the understanding of the ‘unpublished’, sharing an unpublished work for comments by a group of friends is unlikely to be the size of a publication. Among other things, in sharing with those friends, the author does not want to publish in the usual/popular sense that it will never be available for consumption. However, if it is intended to be shared with them for their consumption, it may be considered published (regardless of the number of people in the group). One may conclude that work is considered unpublished until it is made available to the public for consumption purposes.
Section 2(ff):
This understanding is further supported by the interpretation of Section 2 (ff) of the Act, which defines the term ‘public relations’. Both give the impression that the word public is not connected with the number of persons. The interpretation states that communicating any work ‘including the living rooms of a hotel/hostel’ with more than one house or apartment is considered ‘public’ communication. Since there can be less than one member in a house/apartment/hotel or hotel room, even two people can be ‘common’. Therefore, the interpretation states that the output does not depend on the number of persons available for the job.
Copyright exists in both published and unpublished works. Copyright livelihood in a work does not depend on its publication, the copyright period under section 22 of the Act depends on the fact and date of its publication. Therefore, the question of when a work is considered to be published is important in determining the copyright period of works.