The author of a work is usually the first owner of its copyright — but employment, commissions and consultancy can hand ownership to someone else. Knowing which applies, before a dispute erupts, is what a written agreement is for.
The rule — and where it bends
The Copyright Act keeps it simple to start with: the author of a work is the first owner of the copyright (subject to exceptions). In most cases that settles it. But when a work is created at the instance of another person, a thin, hazy line appears between author and owner.
Section 17(c): work made in employment
Where a copyrightable work is made by an employee in the course of employment, Section 17(c) gives ownership to the employer — unless there is an agreement to the contrary. Two conditions matter:
- the work must be made in the course of employment under a contract of service; and
- there must be no agreement to the contrary.
That throws the burden onto the courts to examine whether the relationship really was a contract of service, whether the work truly arose in the course of employment, and whether any agreement fixed ownership.
What the precedents say
- V.T. Thomas v. Malayala Manorama (AIR 1989 Ker 49): the artist “Toms” created his cartoon characters before joining Manorama. The Kerala High Court held that although Section 17(c) gave the publisher ownership of work created during employment, these characters were not — so once Toms left, he was free to keep using them. He was the author and first owner; his Section 17(c) obligations ended with the employment.
- Neetu Singh v. Rajiv Saumitra: the court examined the terms of the employment agreement itself to decide whether author or employer owned the work.
- Commissioned software: where a vendor alleged infringement of software it had developed but which was commissioned by the other party, the court ruled for the commissioning party, applying a series of tests (control, organisation) and analysing the MOU between them.
Contract of service vs contract for service
A contract of service (employment) differs from a contract for service (an independent contractor). Section 17(a) and (b) address particular kinds of work and circumstances; 17(c) is a residual clause meant to catch the rest. But the statute writes as if “work made in the course of employment under a contract of service” is always obvious — and it isn’t. Courts have dissected each case, applying tests to decide both “contract of service” and “in the course of employment.”
By comparison, US law is simpler: for “works made for hire,” the person for whom the work was prepared is the owner, and the statute even defines when an independent contractor’s work counts as work for hire.
The takeaway: no straitjacket formula — so put it in writing
There is no fixed list of factors the courts treat as the only parameters; ownership turns on the facts and the precedents. Because ownership is so often the very thing an infringement dispute hinges on, the safe course is to define the relationship in writing — assignment or ownership terms in every employment, commission and consultancy agreement — rather than gamble on how a court will read the facts later.
Frequently asked questions
Who is the first owner of copyright in India? Generally the author — but under Section 17(c), an employer owns a work made by an employee in the course of employment under a contract of service, unless agreed otherwise.
Does my employer own everything I create? Only work made in the course of employment under a contract of service. Work created before you joined, or outside the scope of employment, can remain yours — as V.T. Thomas v. Manorama shows.
Who owns commissioned or freelance work? It depends on the contract and the facts; courts apply control and organisation tests and examine the agreement. Without clear terms, ownership can go to the commissioning party — so specify it in writing.
How do I make copyright ownership certain? Use a written agreement (employment, commission or consultancy) that expressly assigns or allocates copyright, rather than relying on Section 17’s default reading.
Useful official resources
- The Copyright Act, 1957
- Copyright Office, India