Term in Anonymous and Pseudonymous Works

The Explanation, and it is the practical part. The identity of an author is deemed to have been disclosed if either it is disclosed publicly by both the author and the publisher, or it is otherwise established to the satisfaction of the Commercial Court by that author.

Broken down

Two ways for a disclosure to count. A joint public disclosure by the author and the publisher, which is the ordinary route; or an application by the author to the Commercial Court, which is what an author uses when the publisher will not co-operate.

Only the author may go to court. The Explanation says "by that author", so a publisher, an heir or a researcher cannot establish the identity for this purpose.

The switch is one way and it is generous. Sixty years from publication becomes sixty years from a death that has not yet happened, so the term normally lengthens. It cannot shorten it, because the proviso operates only where the disclosure is before the expiry of the publication term.

And the switch is not automatic on death. The author must disclose, or the identity must be established to the satisfaction of the court by the author. An identity that becomes generally known after the author's death does not, on the words of the Explanation, trigger the proviso.

A worked example

A novel is published in 1990 under the pen name Kaliyug. Nobody knows who wrote it.

What is the term? Sixty years from 1 January 1991, expiring at the end of 2050.

In 2020 the author, Sunil Mathur, and the publisher jointly announce that he wrote it. The disclosure is before the expiry of the publication term, and it satisfies the first limb of the Explanation. The term becomes sixty years from the beginning of the year after his death.

He dies in 2035. The copyright now runs to the end of 2095, instead of the end of 2050.

Change one fact: the publisher refuses to confirm it. Sunil may establish his identity to the satisfaction of the Commercial Court, which is the second limb of the Explanation, and the effect is the same.

Change another: Sunil dies in 2019 without ever disclosing, and a biographer proves in 2022 that he wrote it. On the words of the Explanation the disclosure must be by the author, jointly with the publisher, or established to the court's satisfaction by that author. A biographer's proof is neither, so the publication term stands and the copyright expires at the end of 2050.

And if it was published anonymously by two authors, one of whom is later disclosed? Section 23(2)(a) makes the reference a reference to that author, so the term runs from his death.

What it does NOT mean

It does not mean an anonymous work has a shorter term. It has a different measure. A work published anonymously in the author's youth may in fact outlast one published under his own name late in life.

It does not mean a pseudonym must be secret. Where the pseudonym leaves no doubt as to identity, the work is in substance not pseudonymous, which is how Berne article 7(3) puts it in terms. The Indian section reaches the same result through the disclosure machinery.

And it does not mean a film or a sound recording is covered. Section 23 speaks only of literary, dramatic, musical and artistic works. Films and recordings have their own sections and are already measured from publication.

Quick revision

Section 23(1): anonymous or pseudonymous literary, dramatic, musical or artistic works get sixty years from the beginning of the calendar year next following first publication.

The proviso: if the identity is disclosed before that period expires, the ordinary section 22 measure applies, sixty years from the year after the author's death.

The Explanation: disclosure means public disclosure by both the author and the publisher, or establishment to the satisfaction of the Commercial Court by that author.

Sub-sections (2) and (3) work out joint authorship for anonymous and for pseudonymous works.

"Other than a photograph" is spent, because section 25 was omitted in 2012.

Test yourself

1. State the general rule in section 23(1). For an anonymous or pseudonymous literary, dramatic, musical or artistic work, sixty years from the beginning of the calendar year next following the year of first publication.

2. What are the two ways an identity can be disclosed for the purposes of the section? Public disclosure by both the author and the publisher, or establishment to the satisfaction of the Commercial Court by that author.

3. An author dies without disclosing, and a scholar later proves who he was. Does the term change? No. The Explanation requires the disclosure to be by the author, jointly with the publisher, or established to the court by that author.

4. Why does the section say "other than a photograph"? Because photographs once had their own term under section 25, which the Copyright (Amendment) Act, 2012 omitted. The exclusion now has nothing to exclude.

5. A work is published anonymously by three authors and one is later identified. From whose death does the term run? From that author's death, by section 23(2)(a).