BALANCING COPYRIGHT WITHIN THE SCOPE OF CONTRACTUAL FREEDOM

The delicate balance between the rights of authors, copyright owners, and other content proprietors, on one side, and the principle of freedom of contract on the other, is a subject often addressed in legal systems through statutory measures. However, India's Copyright Act is notably sparse on this matter, leaving much of the discourse in this field shaped by judicial decisions. Traditionally, the conflict between copyright and freedom of contract emerges in the context of the interactions between authors and those to whom they assign or license their rights.

Given the inherent imbalance in bargaining power and varying levels of business sophistication, subjecting authors to the unfettered forces of the free market in their dealings with publishers, producers, and distributors without considering the consequences for the copyright system is deemed incorrect. To ensure that copyright serves its intended purpose as an incentive, the law should not remain passive when authors sign away their rights for inadequate compensation.

To address these concerns, copyright policies and laws should incorporate narrowly tailored restrictions on the assignment of future rights, provide limited reversion rights, and ensure that authors receive fair shares of the profits generated from their works. A call for amending India's copyright law in this direction is made. Courts should not hesitate to invoke the doctrine of public policy to grant relief to authors facing unfair contractual terms.

There are several rules of freedom of contract under Indian copyright rules which needs to be stringent and non-ambiguous. In the case of a literary, dramatic, or artistic work (which includes a photograph, painting, or a portrait) created during the course of employment or under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the author of such a publication shall, in the absence of a contract to the contrary, be the first owner of copyright. However, such ownership shall vest with the proprietor of the publication only for the limited purpose of publishing the work or a reproduction of the work in a publication and, for all other purposes, the copyright shall vest with the author of the work.

In all these cases, procedure to claim ownership is not defined. Hence these are some points in which Indian copyright law needs to be clear on.

It is important to note that any contractual protection, as discussed above, is inherently limited. Contracts only bind the parties involved and do not extend to the broader public. Therefore, in the absence of a monopoly situation, a contractual prohibition on copying data from a specific source does not prevent another party from independently acquiring the same facts from an alternative source.