Written by: Anupam Pandey, Obhan & Associates, New Delhi, India.
12/10/2012
4 minutes read
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The idea of working on your own terms sounds appealing. Making money from such an enterprise adds a totally different perspective to the term ‘Job’. If you are still reading this, you will agree that Freelancing may give you the better of the two worlds. Consequently, more and more people now are exploring this option to accomplish personal goals and for maintaining a work-life balance. Generally, the DEAL is that a Freelancer would be approached by the Client to work on a certain ‘PROJECT’. The PROJECT may lead to the creation of Intellectual Property Rights. However, the question arises who shall be the First Owner of the work when it is created by a Freelancer working on her PROJECT on behalf of the Client.
As we are aware, no party can claim any copyright over an idea. The copyright shall vest in the expression of the idea expressed in a tangible form. Accordingly, copyright may be determined as the exclusive right to do certain things with the idea when expressed in a tangible form. Copyright is a bundle of rights and may vary across Territories and Mediums. It is also imperative to understand that the author of the work may not necessarily be the First Owner of the same. For example, the work created under a ‘contract of service’ or in other words when working in and as a part of the company, shall result in the company being the First Owner unless there is a contract to the contrary.
At this point, it is important to understand that difference between ‘contract of service’ and ‘contract for service’. Under a ‘contract of service’, a person is employed as a part of the business, and his work is done as an integral part of the business; whereas, under a ‘contract for service’, his work, although done for the business, is not integrated into it but is only accessory to it. Accordingly, the greater the amount of direct control exercised over the Freelancer, the stronger the grounds for holding it to be a ‘contract of service’. Likewise, the greater the degree of independence of such control, the greater is the possibility that the services rendered are of the nature of professional services and that the contract is not one of service.
From a legal perspective, the Copyright Act, 1957 provides that a photograph was taken or portrait drawn or a movie created at the instance of any person for valuable consideration shall result in that person being the First Owner of the work unless there is a contract to the contrary. In other words, as a Freelancer, if the PROJECT entails clicking photographs, the Freelancer shall be the author of the work but the First Owner shall be the Client who engaged the Freelancer for a valuable consideration in the first place. In this example, it is imperative to note that photographs should have been clicked at the instance of the Client. In the event that the photographs had been taken by the Photographer not at Clients instance but on his own accord, the Freelancer shall be the author as well as the First Owner of the work.
In case of publications written by a Freelancer, these would be considered as being written owing to a ‘contract for service’. Accordingly, the Freelancer shall own the copyright in the work unless there is a contract to the contrary. In case of a dispute between a Freelancer and the Client, in order to claim copyright on the publication written by the Freelancer, the onus would be on the Client to prove that the publication was written by the Freelancer as a result of a ‘contract of service’ and not ‘contract for service’. However, even in a ‘contract of service’ the ownership of the publications by the Client is limited in nature.
In today’s world of globalization and internet, it is important that all Intellectual Property Rights are protected and appropriate arrangements are made beforehand between the Parties engaging in Freelancing. A stitch on time can surely save a dime here!
Obhan & Associates is a full-service law firm with its main office in New Delhi, India. Anupam can be reached at anupam.pandey@obhans.com
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