How authors can protect and pass on copyrights through estate planning

I am an author and copyright owner of several published and unpublished books. Can I ensure that my heirs continue to benefit from my works after my death?

--Name withheld on request

Yes, but only within the limits of the Copyright Act, 1957. For literary works published during the author’s lifetime, copyright generally lasts for the author’s lifetime plus 60 years, calculated from the beginning of the calendar year following the year of death.

Therefore, if an author dies in 2030, the 60-year period begins on 1 January 2031. The heirs, estate, assignee or other copyright owners can commercially exploit the work during that period, but cannot extend copyright beyond the statutory term merely by creating a company, trust or estate.

Q. Can I create a company, LLP, trust or estate so that my copyright continues forever?

No. Creating a company, LLP, trust or estate may help with management, control, licensing, royalty collection and succession planning, but it cannot extend the statutory copyright term.

Copyright duration is fixed by the Copyright Act. A company or trust may own or administer copyright, but it does not, per se, convert a life-plus-60-years of copyright into a perpetual right.

Q. What about unpublished works? Can I keep some manuscripts unpublished during my lifetime so that my heirs publish them later?

Yes, this is an important planning possibility. Section 24 provides a special rule for certain posthumous works. In the case of a literary, dramatic or musical work, or an engraving, where copyright subsists at the author’s death, but the work or its adaptation has not been published before death, the copyright lasts until 60 years from the beginning of the calendar year following the year in which the work is first published.

So, if an author passes away in 2027, leaving behind an unpublished novel, and the said novel is first published in 2040, the copyright term would generally run for 60 years from 1 January 2041—until 31 December 2100, provided that neither the work nor any adaptation of it had been published during the author’s lifetime. Had the said work been published prior to the author's death, the copyright term would, instead, expire on 31 December 2087.

Q. Does this mean unpublished works can be used to create a longer benefit period for heirs?

Yes, in a limited sense and subject to facts and circumstances. If a work is genuinely unpublished during the author’s lifetime and is first published posthumously, the application of Section 24 of the Copyright Act, 1957 may result in a copyright term measured from the time of the first posthumous publication, not from the author’s death.

This can allow heirs to benefit from the work for a fresh 60-year period from the year after first publication. However, this applies only where the statutory conditions are satisfied. The work must not have been published before death, and care must be taken because public performance or sale/offering for sale of sound recordings of literary, dramatic or musical works may amount to publication for this purpose.

Q. Can I bequeath unpublished manuscripts to my heirs by will?

Yes. Section 20 of the Act specifically deals with transmission of copyright in manuscripts by testamentary disposition, where a person is entitled under a bequest of the manuscript of a literary, dramatic or musical work or to an artistic work, and the work was not published before the testator’s death. The bequest is presumed to include copyright in the work, unless the will or codicil shows a contrary intention.

In practical terms, if an author leaves an unpublished manuscript to a child by will, the copyright may also pass with it unless the will says otherwise.

All in all, Indian law does not allow copyright to continue forever through a company, trust or estate. But it does allow careful planning. Published works can benefit heirs for the remaining statutory term. Unpublished works, if first published after death, may receive the special posthumous term under Section 24. A will can transfer manuscripts and copyright, and a family entity can help administer and monetize rights efficiently.

Disclaimer: This article is for general informational purposes only. Positions taken up shall be subject to assumptions, facts and circumstances. Authors should obtain specific legal advice for drafting wills, assignments, licences, trusts or family IP-holding structures.

Aditya Chopra is the managing partner and Amay Jain, senior associate at The Victoriam Legalis (TVL)