Work-for-Hire Under Section 17: Who Owns Copyright in Employment and Commission Settings

Indian copyright begins with one question: who is the first owner? Section 17 of the Copyright Act, 1957 answers it. The default rule is in Section 17(a) — the author. Three exceptions follow: Section 17(b) for employee works, Section 17(c) for commissioned visual works and films, and Section 17(d) for government works. The interaction of these clauses, particularly in mixed scenarios involving employees, freelancers and commissions, decides who owns the IP in nearly every workplace creative output in India.

This guide walks through each Section 17 clause, the case law applying them, and the practical implications for employers, agencies, founders and freelancers operating in India.

The default — Section 17(a)

Section 17(a) provides that the author of a work is the first owner of the copyright. For literary, dramatic and musical works, the author is the natural person who created the work. For cinematograph films, the author is the producer. For sound recordings, the author is the producer of the sound recording. For computer programmes, the author is the person who creates the code; for photographs, the photographer.

This default is the residual rule. Any deviation requires either a Section 17 exception to apply, or an explicit assignment under Section 18-19.

Author by default. Employer or commissioner only when the statute says so.

Employee works — Section 17(b)

Section 17(b) covers works made in the course of the author's employment under a contract of service or apprenticeship, where the work is for the purpose of publication in a newspaper, magazine or similar periodical. The proprietor of the newspaper is the first owner — but only for the purpose of publication in that periodical and the use of the work in that connection. The author retains the copyright for other purposes.

This is a narrower clause than commonly understood. It applies to the journalism context specifically. General employment-created works do not fall within 17(b); they fall under a separate rule.

Other employment — Section 17(c)

Section 17(c) covers a broader employment scenario: works made by an author in the course of the author's employment under a contract of service or apprenticeship, to which Section 17(b) does not apply. In this case, the employer is the first owner of the copyright in the absence of any agreement to the contrary. This is the operational 'work-for-hire' rule for most Indian employment contexts.

The phrase 'in the course of employment' has been litigated. The leading test asks whether the work is the kind the employee was hired to produce and was produced within the scope of the employment relationship — not on personal time, not outside the job description. Code written by a software engineer during work hours on a company project: clearly 17(c) employer-owned. The same engineer's weekend personal project: not within 17(c).

Commissioned works — Section 17 clause continuing

For specifically listed categories of commissioned works — photographs, paintings, portraits, engravings and cinematograph films — Section 17 provides that the commissioner (the person at whose instance and for whose valuable consideration the work was made) is the first owner of the copyright, in the absence of any agreement to the contrary.

The list is narrow and specific. A commissioned literary work — say, a freelance writer commissioned to write an article — does not fall within this clause. The freelance writer remains the first owner of the copyright under Section 17(a), and the commissioner needs an explicit Section 18-19 assignment to acquire the copyright.

Government works — Section 17(d)

Section 17(d) provides that in the case of a work made by or under the direction or control of the Government, the Government is the first owner of the copyright. This applies to works produced by government employees in the course of their duties, and to works produced by independent contractors specifically for the Government under contractual direction.

Section 17(dd) extends similar treatment to works made or first published by or under the direction or control of any international organisation.

The IPRS v. EIMPA framework

The Supreme Court in Indian Performing Right Society v. Eastern India Motion Pictures Association, AIR 1977 SC 1443, addressed the interplay of Section 17 with film-music commissioning. The Court held that where a composer is engaged under a contract of service to compose music for a cinematograph film, Section 17(b) (in its then form) made the producer the first owner of the music. The decision shaped Indian film-music ownership for decades and was subsequently modified by the 2012 Amendment, which restored a statutory royalty share for authors and composers.

The EIMPA framework remains relevant for understanding pre-2012 contracts and for the general principle that 'engagement under a contract of service' captures the employment relationship — distinct from 'engagement under a contract for service' (a contractor or commission relationship).

The contract-of-service vs contract-for-service distinction

The line between 'contract of service' (employment, where 17(c) makes the employer the first owner) and 'contract for service' (independent contractor, where 17(a) leaves the author as first owner) is the operational fulcrum of most Indian IP-ownership disputes.

Indian courts apply a multi-factor test that includes:

• Degree of control the engager has over the manner of performing the work
• Whether tools and infrastructure are provided by the engager or the worker
• Whether the worker bears any risk of loss or chance of profit
• The integration of the worker into the engager's organisation
• The exclusive nature of the arrangement
• The nature of the payment — wages vs project-fee

Founders and startups should be particularly attentive to this distinction. Pre-incorporation work by a future co-founder, on personal time and equipment, generally falls under contract for service — the founder owns the IP until it is explicitly assigned to the new company.

Founder IP assignment

Indian startup founders who develop the MVP before incorporating the company own the IP personally. Section 17(c) does not transfer ownership to the company automatically on incorporation. The standard fix: a founder IP assignment agreement signed at or shortly after incorporation, transferring all rights in any pre-incorporation IP to the company, with appropriate warranties on third-party-clean title.

Investors and acquirers conducting IP due diligence on Indian targets specifically look for this assignment. Its absence is a frequent disclosure item in term sheets and can delay closings.

The takeaway

Section 17 is the structural rule of Indian copyright ownership. Five distinct clauses, four distinct ownership outcomes, one default. For employers, agencies, founders and commissioners, the practical implication is straightforward: identify which clause applies to each work, and if Section 17(a)'s author-as-owner default would leave you without rights, build the Section 18-19 assignment into the contract from the start. The chain of title is built at the moment of creation, not patched together when the IP becomes valuable. IPForte's contract drafting practice handles founder IP assignments, employment IP clauses, and freelancer assignment templates across all the Section 17 settings.