Key points
- Copyright arises automatically on creation; registration is optional but is strong evidence in court.
- Work by an employee in the course of employment belongs to the employer; work by a contractor belongs to the contractor unless assigned in writing.
- Assignments must be in writing, identify the work and rights, and specify duration and territory, or the defaults in Section 19 apply.
What is protected
Computer programs are literary works under Section 2(o). Source code, object code, documentation, user interface text, graphics, databases with original selection, and audio-visual content are all protected. Ideas, algorithms and functionality as such are not; only their expression.
Ownership
Section 17 makes the employer the first owner of work made by an employee in the course of employment under a contract of service. Freelancers, agencies and consultants are not employees, so what they create belongs to them until assigned. Every contractor agreement should contain a present assignment of copyright and a waiver of moral rights to the extent permitted. Section 19 requires assignments to be in writing and signed; if the assignment is silent, the term is five years and the territory is India.
Registration
Registration with the Copyright Office in Form XIV creates a presumption of ownership and is useful in customs recordal and in obtaining quick interim relief. For software, extracts of source code are filed.
Licensing
End-user licences, SaaS terms and content licences should specify scope, exclusivity, term, territory and whether sub-licensing is allowed. Open-source components carry their own licence obligations that must be tracked.
Enforcement
Civil suits for injunction, damages and accounts lie in the district court or the Delhi High Court under Section 62, which allows filing where the plaintiff resides or carries on business. Infringement is also an offence under Section 63, and takedown notices to intermediaries under the IT Rules are effective against online copying.
Frequently asked questions
Do I need to register copyright before suing?
No. Registration is not a precondition, but it shifts the evidentiary burden and speeds up interim relief.
Who owns code written by a founder before the company was incorporated?
The founder, until it is assigned to the company in writing. This is one of the first things investors check in due diligence.
Related practice area: Intellectual Property
This article is for general information and does not constitute legal advice. Laws, rules and limitation periods change and depend on the facts; please take advice on your own situation before acting. Reading this article does not create a lawyer-client relationship with Akhtars Legalitarian.