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OP-ED: In a grey area of copyright legislation

  • Published at 07:27 am September 5th, 2020
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How do copyright laws apply to the concept of ghostwriting?

hat is the viewpoint of our copyright law pertaining to the concept of ghostwriting? Contracts regarding ghostwriting are an issue of enormous debate beneath the copyright law of most countries. The idea of ghostwriting is always fascinating as it stays in a grey area of copyright legislation. 

Ghostwriting is a procedure where a professional writer (ghostwriter) creates books, articles, stories, or reports for commission or payment which is formally credited to another individual and the creation is intentionally attributed to one who has not created the work, nevertheless is an eminent figure, in order to increase the marketability of the work.

Generally, in this procedure, both parties enter into a voluntary contractual relationship to execute this ghostwriting concept. It is worthwhile to note that the boundaries of this practice give the impression to be both; extensive and blurred. 

It is sometimes complicated to separate ghostwriting from analogous situations from the external standpoint. In a simple sense, a ghostwriting contract happens in two ways: Direct employment and freelance contract. In the situation of a direct employment contract, the ostensible author (whomever the ghostwriter is writing for) takes the ghostwriter as a full-time employee. And the copyright in the job they formulate as an element of that employment goes to their employer. 

On the other hand, freelance ghostwriters usually make a contract for particular write-ups with the ostensible author. Generally, in freelancing contracts, the ghostwriter obligates to create the work and releases it to the commissioning party and transfers the economic rights, while also waiving the right to attribution. 

That means the ghostwriter will permit the distribution of his creation or work under the name of the ostensible author. The freelance ghostwriter may get payment in the structure of a one-time fee, a share of royalties, or some mixture of the two. 

Additionally, if the ghostwriter’s payment is to be based exclusively on royalties from publication, the ghostwriter may wish for a guaranteed payment on the occasion the work cannot be accomplished or published due to delays or other tribulations caused by the ostensible author. 

Another situation may arise where the ghostwriting process may not engage any express contracts, and could well involve just implicit consent, in which consent may be taken by force. 

Therefore, it is essential to mention that the ghostwriter may be required by position or circumstances to provide consent to the appropriation of his creation by the ostensible author. 

Consent of the ghostwriter may not be taken voluntarily, and it can happen that the ghostwriter is not in that position to claim the loss or complain. 

Leaving aside the issue of consent, let’s talk about the express contract between the ghostwriter and the ostensible author. This is so unfortunate that the legal position of the ghostwriting contract is unclear under the copyright law of Bangladesh. Section 17 of Copyright Act 2000 provides different provisions and determines who will be the first owner of the copyright in various circumstances. 

This section acknowledged that the employer would get the first ownership of any work done by the employee or intern under the employment contract. Nevertheless, this section has missed the concept of freelance ghostwriting because not necessarily every relationship between the ghostwriter and ostensible author is under the employment contract. An appropriate “work made for hire” provision could mitigate this confusion like “Title 17” of United State Codes.

If we consider that the ghostwriter is working under an employment contract, then the employer (the ostensible author) will be the first “owner” of the work, not the “author.” 

As a result, the actual author or the ghostwriter would continue to be the author of the work. According to section 78 of Copyright Act 2000, the author of a work has the absolute right to be attributed as the author of his work. Again it is so unfortunate that the Copyright Act 2000 failed to clarify whether an author could waive the right to attribution as contemplated by section 78 of the act.

In the historical case of Centrotrade Minerals and Metal Inc v Hindustan Copper Limited (2006), the Apex Court of India stated: “A person may waive his right. Such waiver of right is permissible even in relation to a benefit conferred under the law. 

But it is trite that no right can be waived where public policy or public interest is involved.” However, it is crucial to mention that this case was not about any copyright matter.

As much as moral rights are concerned, a compelling argument can possibly be started -- can moral rights be waived? Some may argue that moral rights cannot be waived and that any theoretical waiver of moral rights is void or invalid. Copyright Act 2000 is also silent on the issue of waiver of moral rights.

In consequence, authors as well as ghostwriters have an extremely authoritative tool at their disposal to be in command of the use of their works even after they have sold or otherwise separated with both; the works themselves and the copyright vesting in the works. 

Therefore, according to our copyright law, ghostwriters have the ability to interfere with the exploitation of their work at any time.

The concept of ghostwriting is not a new phenomenon, and in the literature world, it achieved acceptability. As an entity of this global village, Bangladesh needs to adapt this theory. The copyright law of Bangladesh requires being more specific on the issue of ghostwriting as we are now facing conflicts on this particular issue. Parties need to be more careful regarding drafting any ghostwriting contract. 

Fahad Bin Siddique is an Associate Lawyer, Siddique Law Assign, Dhaka, Bangladesh.

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