Section 18 of the Copyright Act, 1957 - Assignment of Copyright
Copyright consists of a bundle of exclusive rights. The owner does not necessarily have to transfer every right at the same time. Section 18 permits an assignment to be made wholly or partially, generally or subject to limitations, and for the whole term of copyright or only part of that term.
Section 18 must also be read with Section 17 dealing with the first owner of copyright, Section 19 dealing with the mode of assignment and Section 19A dealing with disputes relating to assignment.
- Copyright may be assigned wholly or partially.
- An assignment may be general or subject to specified limitations.
- The assignment may cover the entire copyright term or only part of it.
- The prospective owner of copyright in a future work may make an assignment.
- An assignment of a future work takes effect only when that work comes into existence.
- A new medium or mode of exploitation is not automatically covered unless specifically referred to where required by Section 18.
- Section 18 contains important statutory royalty protections for authors of specified literary and musical works.
- For assigned rights, the assignee is treated as the copyright owner; the assignor remains owner of rights that were not assigned.
Text and Meaning of Section 18 - Assignment of Copyright
Section 18(1): The owner of copyright in an existing work or the prospective owner of copyright in a future work may assign the copyright to any person. The assignment may cover the copyright wholly or partially, may be general or subject to limitations, and may operate for the whole term of copyright or for only part of that term.
In the case of copyright in a future work, the assignment takes effect only when the work actually comes into existence.
Section 18 further provides that an assignment does not extend to a medium or mode of exploitation which did not exist or was not in commercial use when the assignment was made unless the assignment specifically refers to that medium or mode of exploitation.
The section also protects the statutory royalty rights of authors of literary or musical works incorporated in cinematograph films and of literary or musical works included in sound recordings that do not form part of a cinematograph film, subject to the terms and exceptions stated in the Act.
Section 18(2): Where an assignee becomes entitled to a right comprised in copyright, the assignee is treated as the owner in respect of the assigned rights. The assignor continues to be treated as owner in respect of rights that have not been assigned.
Section 18(3): For an assignment of copyright in a future work, the expression "assignee" includes the legal representatives of the assignee where the assignee dies before the future work comes into existence.
Who Can Assign Copyright?
Section 18 recognises two categories of persons who may make an assignment: the owner of copyright in an existing work and the prospective owner of copyright in a future work.
Determining who owns copyright is therefore important before an assignment is executed. The rules relating to first ownership are principally contained in Section 17 of the Copyright Act, 1957.
Assignment of Copyright in a Future Work
Section 18 expressly permits the prospective owner of copyright in a future work to assign the copyright. However, the assignment does not become effective merely because an agreement has been executed. In relation to the future work, it takes effect when the work comes into existence.
Section 18(3) further protects continuity where the assignee dies before the future work comes into existence by including the assignee's legal representatives within the expression "assignee" for this purpose.
Whole and Partial Assignment of Copyright
Copyright can be divided into different rights. Section 18 therefore allows the copyright owner to assign the entire copyright or only specified rights. An assignment can also be restricted by duration, territory, rights, uses or other lawful limitations, depending on the terms of the assignment and the requirements of the Copyright Act.
| Type of Assignment | Meaning |
|---|---|
| Whole assignment | The assignment covers the copyright rights specified as a whole, subject to the agreement and the Act. |
| Partial assignment | Only specified rights comprised in the copyright are transferred. |
| General assignment | The assignment is expressed generally, subject to the statutory requirements governing its scope. |
| Limited assignment | The transfer is subject to specified restrictions or limitations. |
| Assignment for whole term | The assigned rights may extend for the whole applicable copyright term. |
| Assignment for part of term | The assigned rights operate only for the period covered by the assignment. |
New Medium or Mode of Exploitation
A significant protection in Section 18 concerns technologies and commercial modes of exploitation that were not in existence or commercial use when the assignment was made. The statutory rule is intended to prevent an assignment from automatically extending to such a new medium or mode unless it was specifically referred to in the assignment.
This provision is particularly relevant to copyright agreements because technology may create new methods of distributing, communicating or commercially exploiting protected works after an agreement has been executed.
Royalty Rights of Authors
Section 18 contains specific safeguards concerning the right of authors of literary and musical works to receive royalties. In relation to literary or musical works included in a cinematograph film, the Act restricts assignment or waiver of the author's right to receive royalties on an equal basis with the assignee for uses covered by the statutory provision, subject to the exception and permitted recipients specified in Section 18.
A corresponding protection applies to the author of a literary or musical work included in a sound recording that does not form part of a cinematograph film. Any copyright agreement involving these categories of works should therefore be examined in light of the statutory royalty protections rather than solely by reference to the contractual wording.
Rights of Assignee and Assignor After Assignment
Section 18(2) recognises that ownership can be divided after an assignment. The assignee is treated as the owner of the rights that have been assigned. The assignor remains the owner of rights that have not been transferred.
Consequently, a partial assignment does not necessarily divest the original copyright owner of every right comprised in the copyright. The exact division of rights depends upon the scope of the assignment, read subject to the Copyright Act.
Section 18 and Section 19 - Difference
| Provision | Principal Subject |
|---|---|
| Section 18 | Assignment of copyright, including what rights may be assigned, future works, new modes of exploitation, royalty safeguards and ownership after assignment. |
| Section 19 | Mode and statutory requirements governing an assignment of copyright. |
| Section 19A | Statutory mechanism concerning disputes with respect to assignment of copyright. |
Practical Points for a Copyright Assignment
A copyright assignment should clearly identify the work, the rights being assigned, the intended scope of exploitation, the duration and territorial extent where applicable, and the consideration or royalty arrangements required by law. The agreement should also be checked against the requirements of Section 19 and the non-waivable protections contained in the Copyright Act.
Particular care is appropriate where the agreement concerns future works, digital or subsequently developed modes of exploitation, cinematograph films, sound recordings, literary works or musical works.
Frequently Asked Questions
What is Section 18 of the Copyright Act, 1957?
Section 18 is the principal provision dealing with assignment of copyright. It permits copyright in existing and future works to be assigned subject to the conditions and protections contained in the Act.
Can only part of a copyright be assigned?
Yes. Section 18 expressly permits copyright to be assigned wholly or partially.
Can copyright in a future work be assigned?
Yes. The prospective owner may assign copyright in a future work, but the assignment takes effect only when the work comes into existence.
Does an old assignment automatically cover a new technology?
Not necessarily. Section 18 specifically addresses a medium or mode of exploitation that did not exist or was not in commercial use at the time of assignment and requires specific reference to such a medium or mode for the assignment to extend to it in the circumstances covered by the section.
What happens to rights that are not assigned?
Under Section 18(2), the assignor continues to be treated as the owner in respect of rights that have not been assigned.