Contents

• Introduction
• Indivisibility of Copyright
• Divisibility of Copyright

Introduction

If one does not read the contract correctly then he or she is not considering the doctrine of "indivisibility". It is a part of the copyright law until 1978(the implementation date of the Copyright Act of 1976).  Under the doctrine of indivisibility, the Author cannot assign the parts of copyright to different recipients as copyright is considered as a "whole" that cannot be divided amongst different owners. Though the Author can grant all the print publication rights to the company that the grant may have not made one an owner of the copyright and the grant may only have been a non-exclusive license. The doctrine of indivisibility is the reason why publishers before the period 1978 made it a practice to include an assignment of all the author's rights of copyright to the publisher, including the ownership of the copyright in the publishing agreements.

Indivisibility of Copyright

The purpose to make a copyright indivisible was for protecting the alleged infringers from the harassment regarding successive lawsuits since only the copyright proprietor and an assignee, not a licensee, was able to initiate a copyright infringement lawsuit. Though this was a legitimate goal, indivisibility only made as a solution when exploitation of a copyrighted work which is mainly consisted of the reproduction of copies of the original work. Hence the lack of divisibility of the rights was not very harmful when the only right mattered was the "right to reproduction ", as there was relatively little importance to reserve the other exclusive rights. The doctrine of indivisibility began to fall apart while the new technologies developed resulting in the creation of derivative works in various kinds of media based on the original work. While this is occurring the doctrine of indivisibility ended up by protecting the copyright infringers from liability. These are mere licensees of the original work unable to protect their work without the assistance of the copyright proprietor.

Why a licensee could not protect his work? It was because the owner of any kind of rights consisting of less than the entire copyright was not considered as the copyright proprietor. The licensee could not commence legal action against any copyright infringer. Hence in case one was the licensee of any print publication rights in a work and the latter wished to bring a lawsuit against an infringer, he or she could not. According to the copyright act 1909, only the copyright proprietor could perform a copyright infringement action. As a result, the rules were changed in a way so that a licensee could bring a lawsuit against an infringer, but the licensee could only perform this if the copyright proprietor confirms to join the licensee taking in the action. So, if one did not have the cooperation of the copyright proprietor could not proceed with the lawsuit on that person’s behalf.

Divisibility of Copyright

Section 106 of the 1976 Act tells about the exclusive rights that the copyright owner possess in a copyrighted work. These exclusive rights can be divided into any number of recipients. These exclusive rights may include reproduction, preparation of derivative works, distribution, public performance, public display, and digital performance in sound recordings.

As per section 101 of the 1976 Act reve4als that any of the six exclusive rights are restricted in scope after limiting the time and place so that any right is put into effectiveness. As per the 1976 Act, an exclusive licensee may act against an infringer. Hence, as an exclusive licensee of a given right has meant for only the infringement of the particular right the licensee possesses, the more narrowly the exclusive right is drawn, the more limited is the standing to sue. Therefore, copyright can be almost infinitely divisible. It is very essential that an author of a work and a publisher of work carefully define in their publishing agreement the nature and the scope of the rights that are to be granted.

For better understanding also check Copyright Act,1957 & Duration and limitation of the rights provided by copyright