Copyright in Unpublished Works: What Constitutes Publication?

We’re pleased to bring to you a riveting guest post by Dr. Sunanda Bharti, exploring issues related to copyright in unpublished works in India. Among others, she looks into the question as to when is a work considered published or what constitutes publication of a work. Sunanda is an Assistant Professor in Law at Delhi University. She has written several guest posts for us in the past as well, which can be viewed here, hereherehere and here.

Copyright in Unpublished Works: What Constitutes Publication?

Dr. Sunanda Bharti

What would happen if I write a novel and keep the manuscript in the drawer of my study table? Would it have any copyright? Is infringement possible in such a scenario? What is term of copyright? When would it be considered as published? What is publication — if I give the manuscript for an innocuous reading/inviting comments to a friend, would it tantamount to publication? This post is an attempt to explore answers to these questions.

Publication not a pre-requisite for copyright to subsist in a work

According to Section 13(1) of the Copyright Act, 1957, subject to other clauses of the section and the other provisions of the Act, copyright subsists in original literary, dramatic, musical and artistic work, cinematographic films and sound recordings. There’s no requirement of publication mentioned in the provision for subsistence of copyright in a work. Nor does any other provision of the Act prescribe such a requirement. Therefore, it is clear that unpublished works are also copyright protected under the Indian copyright law. For a detailed discussion on the various provisions of the Act that support this interpretation, you may refer to this blog post here. A work receives copyright protection the moment it is written, provided it is original. It doesn’t need to be shared, seen, read or appreciated by anyone for copyright to vest in it.

However, should copyright subsist in unpublished works? What after all is the purpose of granting copyright in unpublished works when they are not available to public and thus, of no benefit to the society? The reason seems to be to protect the fruits of the author’s labour against misappropriation by someone who unlawfully gains access to it before it is published. Although copyright subsists in unpublished works, it is equally true that if the manuscript is just sitting on the hard drive of your computer or is lying in the drawer, and some controversy arises regarding its authorship/copyright ownership, it would be difficult (though not entirely impossible) for one to prove themselves to be the true and bona fide author/copyright owner. Every right has a correlative duty. This is true for copyright as well. Others can be put under a tacit duty not to interfere with one’s (copy)right only if they know of its existence or origin. In the absence of such knowledge or notice, technically and strictly speaking, it is a ‘no possibility of infringement’ scenario. Therefore, in order to claim copyright infringement of an unpublished work, one will have to necessarily prove that the alleged infringer had access to their work. Hence, the importance of publication.

What constitutes an ‘unpublished’ work?

Under section 3 of the Act, ‘publication’ means making a work available to the public by issue of copies or by communicating the work to the public. Is ‘unpublished’ [work] an antithesis of ‘published’ then? Does an ‘unpublished’ work mean a work that is not available to the public? Is (i) the manner of making a work available to the public, (ii) the knowledge of the work among people, (iii) the number of people having the knowledge, or (iv) the intention with which it is made known, important in determining if a work constitutes a published work or an unpublished one?

Statutory ambiguity prevails in this context and unfortunately, no Indian case law could be found on the subject. Perhaps the answer may reveal itself if one focuses on the meaning of ‘unpublished’. For the analysis of the meaning of ‘unpublished’, attention should be brought to section 52(1)(p), section 31A(1), Explanation to section 2(ff) and section 6 of the Act

Section 52(1)(p) provides that “reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution to which the public has access’ is not infringement of copyright.” This provision sufficiently hints that even if a work is accessible to the public, it can constitute an ‘unpublished’ work. It seems that an ‘unpublished’ work, hence, cannot simply be equated to a work not available to the public. It could mean that for a work to be considered as ‘published’, it must be made available to the public in a certain manner and/or with a certain intention.

Another dimension of what may be considered as unpublished is provided by section 31A(1), which entitles any person to apply for a compulsory licence to publish unpublished works or certain published works. How would someone apply for a license for publishing a particular unpublished work, unless they have knowledge of it? The provision seems to suggest that knowledge of the existence of a work to a person or a group of persons (who could apply for a license for its publication) does not affect its ‘unpublished’ status – it remains unpublished despite being in knowledge of certain persons.

Given the above generated understanding of ‘unpublished’, sharing an unpublished work to a group of friends for their feedback is unlikely to amount to publication. Among other things, it may be because, in sharing it with those friends, the author never intended to publish it in the conventional/popular sense of making it available for consumption. However, if the intention was to share it with them for their consumption, then it is likely to be considered published (irrespective of the number of people in the group). One may thus conclude that a work is considered unpublished, until it is (with volition) made available to the public for the purpose of consumption (author’ submission).

To emphasize, publication is not dependent on the knowledge of the work among people or the number of people who know about your work but rather the intention with which the author has made it available to them. That is how a manuscript on display in a public museum or library can still be categorized as ‘unpublished’ and a novel which is out there in the market, even if it is read by none, is considered as ‘published’.

This understanding is further supported by Explanation to section 2(ff) of the Act which defines the term ‘communication to the public’. Both give an indication that the term public is not linked with number of people. The Explanation states that communication of any work to ‘more than one household or place of residence including residential rooms of a hotel/hostel’ is deemed to be communication to the ‘public’. Given that one household/residence/hostel or hotel room may have as less as one member, it seems that even two persons may amount to ‘public’. Thus, the Explanation suggests that publication is not dependent on number of people to whom the work has been made available.

This also finds support in the Delhi High Court Division Bench’s judgement in the DU photocopy case, wherein it was observed albeit in a different context, that “[p]ublication need not be for the benefit of or available to or meant for reading by all the members of the community and that[a] targeted audience would also be a public…” (para 57) (although the court’s observation has been argued to be incorrect in a post on the blog here).

Nevertheless, from a reading of section 6 of Act, it appears that there could be some linkage between the number of people and the factum of publication. Among other things, the provision provides that if any question arises as to whether a work has been published, the Appellate Board’s decision would be final; and if in the opinion of the Board, issue of copies or communication to the public of the concerned work was of ‘insignificant’ nature, it shall not be deemed to be publication for the purpose of the Act. In what circumstances would the issue/communication of a work be considered insignificant is not clear. Would the number of people be a critical factor? Or would only the intention or purpose be the determinative factor?

Term of copyright in unpublished works

Why is the above discussion on the meaning of publication important, when copyright subsists in both published and unpublished works? Although the subsistence of copyright in a work is not dependent on its publication (but its creation), as per Section 22 of the Act the term of copyright depends on the factum and date of its publication. Thus, the question of when a work is considered to be published is important for determining the copyright term of works.

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3 thoughts on “Copyright in Unpublished Works: What Constitutes Publication?”

  1. Good article on the subject of “unpublished works”, but its conclusion looks like an oversight: “Thus, the question of when a work is considered to be published is important for determining the copyright term of works. (sic!)”

    This is true in the case of anonymous or pseudonymous works. But when the author is known, the term of copyright is determined by the date of the death of its author.

    1. Even when the author is known, copyright expires 60 years after their death only if the work is considered to be published during their lifetime. If the work is unpublished at the time of death, the copyright term would kick in (if and) only when work is published. So in case of posthumous works, copyright would expire only after 60 years from date of publication and not the date of death of the author (section 24). Also, copyright term for cinemtograph films and sound recordings (and also govt works, works of public undertakings, works of international organisations) is determined by the date of publication and not the date of death of their author (sections 25 – 29).

  2. I have noticed this interesting article a little late. Three comments: (1) there is absolutely no discussion or reference to section 3 of the Copyright Act which defines “publication”.
    (2) I find it difficult to agree entirely with the proposition that “Others can be put under a tacit duty not to interfere with one’s (copy)right only if they know of its existence or origin”. Civil liability for copyright infringement is, unlike criminal remedies, a case of strict liability. See the proviso to section 55(1) of the Act. A defence of “innocent infringement” is available only if the infringer can show that he had reason to believe that copyright did not subsist in the infringed work.
    (3) Even within the limited scope of the defence of “innocent infringement” under our Act, the infringer remains
    liable to injunction and rendition of accounts of profit.

    The only defence, if the facts permit, is that of independent creation, i.e. for the alleged infringer to prove that he did not have access to the work or know of it, and therefore could not have reproduced it. The very fact of publication, is usually enough to obviate this defence.

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