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Protecting pseudonymous works

The works of writers like Enid Blyton, George Eliot, Premchand, and Saki, have come to be embedded in our minds for generations, such as. We associate these names with canonical literature, but sometimes forget that these were not the authors’ real names. They were, in fact, pseudonyms, or pen names, adopted by their owners. The motivation for adopting a pseudonym for a creative work is not always clear, and can include a wish to create a separate identity from one’s real life persona. Whatever be the reason, the manner of protecting copyright in pseudonymous works is slightly different from that of a conventional copyright, which is the subject of this piece.

In the case of pseudonymous or anonymous works, the default owner of the copyright in the work is the publisher of the work, as provided under Section 54(b) of the Copyright Act, 1957. This default position remains until the identity of the author is disclosed publicly by the author and the publisher, or is otherwise to the satisfaction of the Copyright Board by that author or the author’s legal representatives.

The law does not clarify what it means to “disclose the identity of the author” to the authorities’ “satisfaction”. However, it would be logical to presume that making an appropriate declaration in the application for registration of copyright that is submitted to the authorities should address this situation.

The format for the application for registration of copyright is contained in Form XIV accompanying the Copyright Rules, 2013, and includes a detailed Statement of Particulars where certain declarations must be made. The Statement of Particulars has separate columns for the names of the author, copyright owner, and publisher. A proper declaration would mean that in the case of pseudonymous works, the name of the author must be the pseudonym that is used in connection with the work, and the name of the copyright owner should be the real name of the author of the work.

If such a declaration about the real author is not made, copyright protection will be granted only to the publisher of the work, in accordance with the presumption contained in Section 54(b) of the Copyright Act. This issue came up in the Madras High Court decision in Brooke Bond India Limited vs Balaji Tea (India) Pvt. Ltd. ((1993) 2 MLJ 132). The court effectively pointed out that the legislative intent of Section 54(bb) was to provide protection to such works. If the presumption of the publisher being the copyright owner of an anonymous or pseudonymous work did not exist, then no civil remedy for copyright infringement would be available to the publisher at all. In contrast, a lower court in the same matter had said that where a corporate body claimed copyright ownership over a work, it should be clarified as to how the corporate body acquired ownership, and the authorship of the work should be clearly stated. In the 1993 decision, the High Court said, instead, that there was no positive obligation on the publisher to disclose the real name of the author of the work, and if no real name was available, then, by default, the publisher would be presumed to be the copyright owner.

Declaring the real name of the author in pseudonymous works also has implications on the term of copyright that is granted. Under Section 23 of the Copyright Act, when a work is published anonymously or pseudonymously, and the real name of the author remains undisclosed, copyright subsists for 60 years from the year after the work is published. However, if the author’s real name is disclosed within this period, copyright subsists for 60 years from the year after the author dies. The provision includes an Explanation which states that the identity of an author is deemed to have been disclosed, if it is either disclosed publicly by both the author and the publisher or is otherwise established to the satisfaction of the Appellate Board by the author.

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