Why Don’t You Copyright Me? Copyrights and Writers (Part 4)
As seen in the previous posts, a copyright protects original and creative expression in a tangible form. While copyright exists in a work irrespective of registration, writers are advised to register their works. This post looks at the various categories under which a writer’s work can be protected and why it should be registered.
Protecting a Writer’s Work
According to Copyright law, the following types of works form the subject matter for copyright protection:
- Literary Work;
- Musical Work;
- Artistic Work;
- Dramatic Work;
- Cinematograph Work; and
- Sound Recording.
Books are mainly protected under copyright law as literary works. Literary works include poems, song lyrics, letters, fictional works like short stories and novels, contributions to newspapers and magazines, and non-fictional works like news reports, biographies and textbooks.
The Copyright Act distinguishes between literary and dramatic works to ensure that each category of a written work is given the appropriate level of protection. Thus, registering a work as a dramatic work protects the choreography, scenic arrangement any other descriptions/arrangements of the performance of the work. However, this does not include a cinematograph film.
Some part of the books like images in the book and cover page of the book may have to be protected as Artistic works. Similarly, play written to be performed, may have to protected as a dramatic work. Not every literary work intended to be performed constitutes a dramatic work. For instance, the script for a film is also registered as a literary work. However, the script for a performance, along with all other instructions like choreography, prop arrangements, and scene descriptions, constitutes a dramatic work.
The adaptation of a work can be independently protected as a literary work; however, the creation of an adaptation during the subsistence of a copyright in the original can only be done with a license from the owner, or by the owner himself. The same principle applies to translations of an original work into any other language. The copyright office also requires a No Objection Certificate from the writer or copyright owner of the original work, if the adaptation or translation of the said work is done by a third party.
In order to ensure maximum protection for a published work, the writer may choose to also apply for separate copyrights in the description of the book printed on the cover, all images used on the cover and inside the book. Of late, writers have also been creating and registering their own audiobook versions, which are categorised as sound recordings for the purpose of registration.
Certain elements of the book, like the title of the book, the names of important characters, catchphrases used by characters, and coined terms used in the book, cannot be protected independently under copyright law, as they are too short to constitute a work. However, in order to enhance the protection of the work, the writer may be able to protect such elements under trademark law. The process, requirements and benefits of trademark protection are covered in a separate post.
Based on the nature of the literary work, the level of protection may differ. For instance, a work of fiction with creative names and settings and no references to reality will receive a higher degree of protection than a non-fiction work, such as a biography of a country’s president. Based on the nature of the work, the writer may have to determine when and how to apply for copyright registration.
For instance, short stories and poems (all by a single writer) may be registered separately or as a compilation. For novels (or other long works), the writer can choose to file for the copyright of the entire work in one application, or in parts. This decision is especially relevant for highly anticipated sequels or new books by popular writers, as the publisher or literary magazines may wish to publish excerpts of the book before it is released. At times, excerpts may even be published before the writer has finished writing the whole book.
Protecting Artistic Works
Photographs, diagrams, cartoons, drawings, maps and other similar artwork features in the book may qualify for registration as an artistic work. In case of artistic works, a separate application must be filed for each work, as the registration process does not allow for registration of a compilation of artistic works.
The simplest and most straightforward way to illustrate a book and its cover is for the writer to create the illustrations himself. This gives the writer greater control over what artwork features in his book, and also eliminates the need for any complex agreements with another artist. Writers, particularly those who write or contribute to children’s books, increasingly prefer to illustrate their own books and stories.
However, a writer can have an artist illustrate his book in two ways: by commissioning an artist to create illustrations for the book, or by taking a license to use existing illustrations in the book. Commissioning arrangements are generally used for original works, especially for fiction, where the writers/publishers prefer to commission an artist to create unique illustrations based on the plot and the characters of the book. Licensing arrangements are generally made for non-fictional works like biographies or similar narrations, where images are available and can be licensed from the owners of the photographs, or from the persons featured in the book.
As every artistic work used in the book has to be registered separately, writers generally register the intended cover images first, followed by portrayals of the lead characters and of any particularly important scenes/locations. In practice, it is also common for publishers to commission an artist after they have decided to publish the book, to create the cover image and other images used in the book.
Before applying for the registration of an artistic work, the writer has to determine the nature of the artistic work, as the Copyright Act creates a separate category for works capable of being used in relation to goods. This may include labels, symbols or logos which could potentially be used as trademarks. For instance, the characteristic style of the title of the Harry Potter books is part of the artistic work of the book covers, but is also used on merchandise.
Benefits of Registration
Generally, writers are advised to apply for copyright registration as soon as the work in put in a tangible form, to ensure that it is registered before the writer initiates discussion with a publisher or exercises any commercial rights in the work, like licensing the work. Although copyright law does not mandate any royalty for writers, registration puts the writer in a more advantageous position while negotiating an agreement with the publisher, not only for the amount of royalty, but also to determine which rights are assigned to the publisher. It also ensures that the publisher does not register the copyright in its own name, which may effectively prevent the writer from writing sequels or spin-offs and publishing them with a different publisher.
As the copyright registration certificate is a Prima Facie proof of ownership of the work, some publishers prefer that the work is registered before they agree to publish the work, as the possibility of a dispute is less when a work is registered. It is also easier to enforce the copyright in a work when it is registered and to prevent infringement of the work.
Writers should also consider registering book descriptions, prefaces, forewords, cover images and artwork, and the writer’s photograph and brief biography, which are expected to appear as part of the book. In case of published books, the publisher usually ensures that each of these is registered. However, for writers who self-publish, registering these elements is also essential, as these are often the most publicly visible portions of the book, on online platforms and in e-books and on Google book previews. Registering these elements will be useful in preventing any unauthorised sale/display of the books through e-commerce platforms or in bookstores. A separate series of posts will cover the process of taking down unauthorised sale of books through various online platforms.
Owning a registered copyright in a work also has other benefits. It ensures that the writer holds the exclusive right to create derivative works, which could be valuable if the book is to be adapted into a play, television series or movie, or if a third party wishes to write fan fiction based on the same characters and plotlines.
The following posts are intended to guide writers on how to register their literary and artistic works in India.
This post is authored by Ashwini Arun (Associate, BananaIP Counsels)
(Title adapted from the Simon & Garfunkel song “Why Don’t You Write Me?”)
Note: If you are a writer and would like us to answer specific questions, please write to [email protected] with the subject: Copyrights and Writers.
- Chapter 3, Fun IP, Fundamentals of Intellectual Property, Dr. Kalyan C. Kankanala (2012).