If trademark laws are nearly similar in India and France, laws to protect a work in these countries are conversely very different. Designated as Copyright law in India and as Author’s Right in France, the two regimes endeavour, nonetheless, to answer to the same imperatives.
The origin of this difference is quite simple to understand. British law has influenced India and left Common law logics whereas France inherited of Roman law and kept Civil law logics. A created work will not be protected the same way whether the author is in India or in France. Indeed, Indian law will enhance protection of the work whereas French law will prefer to protect author’s rights regarding his work. To summarize, there are two different approaches to protect a work: economic conception versus personalist conception. Here is an overview of the two laws.
The fact that French law grants a large place to author’s moral rights is the first emblematic difference with Indian law, which hardly recognizes this type of rights. Simply looking at the manner how the legislations have been written enables to point out this difference. Indeed, in French law, author’s moral rights are granted from the very first articles of the law. At the opposite, Indian law grants moral rights to the author only at the section 57 of the Act, after having dealt with nearly all the other questions. Moreover, in virtue of section 57 of Indian Copyright Act (1957), author of a work could only assume the right of paternity and the right of integrity on his work. At the contrary an author protected by French law, by virtue of articles L121-1 to L121-4 of French Intellectual Property Code, could assume the right of paternity, the right of disclosure, the right of integrity and the right of withdrawal. Regarding this, it’s possible to state that a French author will have more and important “personal rights” (as they are attached to the person of the author) than an Indian author will have. Also, Indian law is silent about the assignability of moral rights. Indeed, section 18 of the Copyright Act states only that an author could “assign … the copyright” which would mean that moral rights are not assignable. Nevertheless, section 21 of the Act states that “the author of a work may relinquish all or any of the rights comprised in the copyright in the work by giving notice in the prescribed form”. This section seems to suggest that an author could abandon his moral rights forever without the possibility to recover these rights. To the contrary, French law expressly submits at article L121-1 of IPC that author’s moral rights are inalienable. An author can never lose his moral rights. Eventually he can decide to not exert his rights but he will still have the possibility to recover them. At an international level the principle, whereby moral rights are inalienable, has been qualified as mandatory rule of imperative enforcement, which means that any author around the world could assume the inalienability of his moral rights in France. The main reason of this prohibition is the legislator’s willingness of protecting an author by giving him a decision-making power on his work even if the latter assigns his economic rights. Indeed, author is considered weak in front of other entities such as publishing companies or authors’ societies and this type of juridical protection is supposed to protect him from abuses.
Another emblematic difference is the way the two jurisdictions deal with assignment of an author’s rights. Indeed, if Indian Copyright Act provides a flexible legislation in matter of assignment of rights, French law, at the contrary, oversees this strictly. The main difference, as mentioned above, is probably the possibility for an Indian author to assign all of his rights contrary to a French author who can’t do that. Another difference could be found in the content of an assignment contract. In fact, subsection 2 of section 19 of Copyright Act provides that assignment of copyright shall specify the duration and territorial extend of such assignment. But, at subsections 5 and 6 of the same section, there are presumptions in the case where parties don’t indicate the required information above. In other word, specifying the duration and territorial extend of the assignment is not mandatory. This situation is not possible in French law, as in virtue of article L131-3 1st paragraph, the duration and territorial extend must be specified in the assignment. Otherwise, assignment will be considered as void. Once again, it’s possible to consider that a French author is more protected than an Indian author.
Furthermore, rules about ownership of copyright are very different. Once again, it illustrates the two different conceptions: in one hand, copyright and in another hand, author’s right. In fact, most of the time, in Indian law, author doesn’t have ownership because it’s the person who invests for the creation of the work who is deemed as the first owner of copyrights. At the contrary, in French law, the creator of the works is always considered as the first owner of copyrights. In some cases, someone else could detain this ownership, but he will be never considered as the first owner like in India.
Further, the term of copyright is different according to the country of protection. If in France, the main term of copyright subsists in the lifetime of the author until seventy years from the beginning of the calendar year next following the year in which the author dies, in India, this term subsists only sixty years from the beginning of the calendar year next following the year in which the author dies. In sum, although Indian Law grants ten extra years of protection than the Bern Convention grants, an Indian author will not be protected as a French author, who will have an extra decade of protection.
To sum up, the choice between India and France is just a question of point of view. Indeed, if the choice has to be made by an author, he would probably choose France for creating his work, whereas if it was an investor, he will immediately choose India. Now, make your choice!
This article has been authored by Divya Shanmugathas who is pursuing law at, Université Paris 1 Panthéon-Sorbonne. The views and opinions expressed in this article are those of the author.
