Commissioned Works

In one line

Commissioning a work does not usually buy the copyright, and the one place the Act says it does is a closed list of five things.

In the wording a student can write in an exam: by proviso (b) to section 17 of the Copyright Act, 1957, subject to clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, that person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.

Why the law has this at all

Because five kinds of work are ordered rather than written. A wedding photograph, a commissioned portrait and a feature film are all made because somebody asked for them and paid, and it would surprise the payer to be told he cannot use the result.

And because the list was drawn in 1957 and has not moved. The five things are the five things people commissioned in 1957. Software, music, text and design are not on it, and that omission is the commonest source of ownership disputes in Indian practice.

The provision itself

Proviso (b). "Subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made, for valuable consideration at the instance of any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein."

Five works, exhaustively. A photograph. A painting. A portrait. An engraving. A cinematograph film. Nothing else.

Two conditions, cumulatively. For valuable consideration; and at the instance of the person claiming.

Two escapes. Clause (a) prevails, so a journalist's photograph is governed by the newspaper proviso. And any agreement to the contrary displaces it.

Broken down

"For valuable consideration". There must be payment or something of value. A photograph taken as a favour, or a portrait painted as a gift, is outside the proviso however clearly it was requested.

"At the instance of any person". The work must be made because that person asked for it. A photographer who takes a picture on his own initiative and later sells it has not made it at anybody's instance.

"Such person". The person at whose instance and for whose consideration, not the person who happened to pay a bill.

"In the absence of any agreement to the contrary". In practice most professional photographers, portrait painters and film makers contract out of it. A written contract reserving the copyright to the maker is effective, and no assignment is needed because nothing is being transferred.