Hiring a ‘ghost-writer’ in India: the question of copyright?

Ghost-writing can be described in any of the following four ways: (i) failing to list as an author someone qualified for authorship; (ii) failing to acknowledge writing support; (iii) dishonesty/plagiarism; and (iv) practices such as undisclosed authorship or undisclosed funding for writing support.[1] Alternatively, ghost-writing is a contractual arrangement under which a writer is hired and “paid to produce written work” with the understanding that “the buyer will claim and use it as his own”.[2]

Relevant Law

A copyright subsists in the “original literary works” such as the content of any book.[3] Authors of such copyrighted content or work enjoy certain economic rights or exclusive rights.[4] Also, the Copyright Act provides for the joint authorship when a work is prepared by more than one author in collaboration.[5] The Copyright Act 1957 (“the Act of 1957”) entitles the author or creator of the work as the first owner of copyright i.e. ghost-writer, and vests with author the exclusive right to reproduce, publish, perform, display, or create “derivative works” from its primary work.[6] Further, as per Section 57 of the Copyright Act, the author of a work has the moral right to be attributed as the author of his work even after the assignment, either wholly or partially, of the said copyright.[7] Lastly, Section 18 permits assignment by a prospective owner, i.e., a person who is not the first owner as defined in section 17, in a future work through a written agreement for assignment.[8] However, as per the proviso, parties can enter into an agreement for assignment of copyright in any future work, but the assignment itself takes place only after “the work” comes into existence and not before.[9]

Observation

An author may create a work on his own behalf or at the instance of another person for valuable consideration. The ghost writers are latter one. Such a work is, obviously, a form of plagiarism, however it is with consent of the actual author (the ghost writer) of the work and that makes it acceptable as a work of the ostensible author who is commissioning the work. Under Indian law, the legal position regarding such ghost-writing assignment is unclear in comparison to the international jurisdiction which specifically delineates legal standing on works made for hire (or commissioned works).[10]

Under Indian law, as per the Copyright Act, 1957, in absence of any agreement to the contrary, the person at whose instance the work is made is the owner of the copyright work under Section 17. Since there is no copyright in ideas even if they are original, the originator of the idea is not the owner of the copyright in the work which gives concrete form to the idea.[11] Therefore, where a person provides the material to another for writing a book and the latter (ghost writer) writes the book on the basis of the materials supplied then the latter becomes the owner of the copyright in the book.[12] In order to be an author of a work, a person must accordingly do more than contribute ideas to an author and it is not enough that he passed on his reminiscences to a ghost writer.[13]

In this context, Section 18, therefore, provides that in order to grant exclusive right in a literary work to a person, who is not the owner of copyright within the meaning of the Act to assign his rights in any future work, there should be a contract of assignment in existence.[14]  This way it will be treated as a contract of services and as per Section 17(b) of the Act, authors engaged under contract for service will lose the copyright.[15] Further, Section 57 of the Copyright Act, 1957 recognizes moral rights of the author, such that even after the assignment either wholly or partially of the said copyright, the author of a work shall have the right to claim the authorship of the work. Although, the jurisprudence in terms of waiver of moral rights is slightly unsettled but under several cases contract of services have been upheld and the “contracting out” has been made “permissible provided it is voluntary and does not deal with a matter of public policy”.[16]

Therefore, in the instant case, a collaboration agreement between hirer and the ghost author will form the essence of the copyright ownership. Absent a formal written agreement, ownership of the written work will be governed by the default provisions of the Copyright Act – and not necessarily according to the parties’ wishes. Under that situation, by virtue of Section 17 and Section 57, the ghost author will be the actual author or first owner of the work and consequently will be entitled to economic and moral rights, exclusively.

The best way to address this so that hirer has full ownership of a wriiten work:

To avoid such a situation, there should be a contract of assignment beforehand between the two parties such that the ghost writer will assign the rights of future work prospectively to hiring person. Following are certain steps that will help a hiring person in retaining the full ownership rights in creative works of authorship for a written work:

  • A hiring person should make it certain to have a written agreement with the ghostwriter who will actually author the written work and other allied works.[17]
  • The parties must specifically include in their written contract a provision that the ghost writer is assigning his copyright to the author that will serve as a back-up just in case the work fails to satisfy the ‘contract of services’ requirements of the Copyright Act.
  • The agreement should set extent of rights, deadlines, budgets, compensation, address author credit, decision-making, liability, death, disability, and, if properly drafted, outline a joint exit strategy.[18]
  • If the work fails to qualify as a work under contract of services, exercise, if possible, the defense of “joint authorship” to prevent the loss of “all” the rights in the work. This requires that a hiring person should mention in the collaboration agreement that he is also contributing the “expression of ideas” for the written work.

(Views are personal only. The content of this blog should not be construed as legal advice in any case)


References

[1]Lisa Tora et al, Ghostwriting in biomedicine: a review of the published literature., Journal Current Medical Research and Opinion  Vol 35(9) (2019), https://www.tandfonline.com/doi/full/10.1080/03007995.2019.1608101

[2] Nandita Saikia, Ghost-writing, Plagiarism and Copyright, IN Content Law, https://copyright.lawmatters.in/2010/09/ghost-writing-plagiarism-and-copyright.html.

[3] S. 13, The Copyright Act, 1957.

[4] S. 14, The Copyright Act, 1957.

[5] S. 2(z) and S. 13, The Copyright Act, 1957.

[6] S. 17, The Copyright Act, 1957; Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.

[7] S.57, The Copyright Act, 1957

[8] S. 18, The Copyright Act, 1957.

[9] Indian Performing Right Society Ltd. v. Eastern Indian Motion Pictures Association , (1977) 2 SCC 820

[10] Title 17 U.S.C. § 101, the Copyright Act.   

[11] R.G. Anand v. Delux Films , AIR 1978 SC 1613; Sreenivasulu N.S., Law relating to Intellectual Property, Penguin-Partridge Publications, Bloomington, Indiana, USA, First Edition, 2013, Pg. No: 485.

[12] R D Ryder and Sreenivasulu N. S., Copyright and Third Sector, 7 RMLNLUJ (2015) 39.

[13] Evans v. E Hulton & Co. Ltd., [1923-8] Macg Cop Cas 51.

[14] Diljeet Titus Advocate & Others v. Alfred A. Adebare & Others , 2006 (32) PTC 609 (Del)

[15] Gee Pee Film Pvt. Ltd. v. Pratik Chowdhury & Others , 2002 (24) PTC 392.

[16] Centrotrade Minerals and Metal. Inc. v. Hindustan Copper Limited, (2006) 11 SCC 245; Sartaj Singh Pannu vs Gurbani Media Pvt Ltd & Anr 2015 (63) PTC 590 Del; Ameet Datta, Moral rights: can authors waive their special rights?, Lexology, https://www.lexology.com/library/detail.aspx?g=0e35276b-9737-47dd-9c1a-94ef6d25036d.

[17] Kaplan v. Vincent, 937 F. Supp. 307 (SDNY 1996) (If the parties had a well-drafted collaboration agreement – as opposed to oral understanding — legal entanglements would have been avoided).

[18] Dorling Kindersley (India) Pvt. Ltd. v. Sanguine Technical Publishers & Others 2013 (56) PTC 40 (Del) at p. 62. (The territorial extent should be specified)

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