By Bharat Kumar Singh, Student at National University of Study and Research in Law, Ranchi.
In the field of architecture, architects and engineers depend primarily on copyright laws and contractual provisions to protect their original work. The protection of architectural works through copyright laws against infringement and imitation was brought up on an international scale after the revision of the Berne Convention in 1908. Copyright for works of architecture is provided for in the laws of various western countries including the USA and many nations in Europe.
But these legislation contain some very specific provisions as to what types of architectural works can be protected. Example: Dams, bridges and boats fall outside the purview of copyright laws and cannot be protected. India is relatively new to this sector, and copyright for architectural works is yet to gain popularity akin to that in other developed countries. But, the Indian law also protects architectural works under the uniform copyright law. Section 13 of the Indian Copyright Act, 1957 numerates the types of artistic works that are eligible for copyright protection. Under the Act, a “work of architecture” means any building or structure having an artistic character or design, or any model for such building or structure”. Section 57 of the Copyright Act deals with the special rights of the authors, also referred to as the moral rights of the creator of the work and includes the rights of integrity and attribution of the author. Like in Australia law, Indian law also provides for architects’ rights against false attribution of their work.
Architects in India can register their original works under the copyright registration system. However, it is essential to note that India is a signatory to the Berne Convention as well as the Universal Copyright Convention and therefore, works protected in other Berne signatory countries will automatically be protected in India without the need for registration. Architecture may be defined as the “art of designing and constructing buildings”. It is both a functional and an artistic venture.
Various architectural marvels and iconic structures have amazed and awed the world. From the ancient Pyramids of Egypt to the unique architectural genius of Zaha Hadid, every original idea and its physical manifestation is a work of art. And this belief in the art of architecture has led to the development of legislations to shield such works from being imitated. Architects are engaged to provide a wide range of services including preparing drawings, designs, plans and/or models of buildings to enable development approvals to be obtained for and construction to occur. It is important to understand who rightfully owns copyright and moral rights which are referred to as the intellectual property in the work produced by the architect prior to termination of the retainer, and the protections afforded an architect to protect his or her work.
Copyright subsists in an original work of architecture. The definition of artistic work includes any work of architecture.[i] A work of architecture means any building or structure having an artistic character or design, or any model for such building or structure.[ii] To be qualified for copyright protection the work must be original and not a mere copy of another man’s work.[iii] Further a work of architecture must be a work of art, in other words, it must have artistic quality. This must be contrasted with other artistic works like painting, drawing etc. which does not require artistic quality for copyright protection. Copyright in a work of architecture does not extend to processes or methods of constructions [section 13(5)]. The building or structure which constitutes a work of architecture is built on the basis of plan which enjoys a separate copyright apart from the copyright in the building.[iv] Under the amended Section 3 publication means making a work available to the public by issue of copies or communicating the work to the public.
Where the artistic work is done in the course of employment by the proprietor of a newspaper, magazine or periodical the employer will be the owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or periodical. In all other respects the author will be the owner of the copyright subject to any agreement to the contrary.[v] In the case of a work made in the course of employment of the author other than the above, under a contract of service or apprenticeship, the employer, in the absence of agreement to the contrary, will be the first owner of the copyright therein.[vi] Where a painting or a portrait is drawn, or an engraving or a cinematography film is made for valuable consideration at the instance of any person, such person, in the absence of any agreement to the contrary, will be the first owner of the copyright therein.[vii]
The exclusive rights conferred on the copyright owner of a work of architecture are the same as those for other artistic works.[viii] Under section 2(a)(ii) the adaptation of an artistic work includes the conversion of the work into a dramatic work by of performance in public or otherwise. This does not appear to be applicable to a work of architecture which is also an artistic work under the definition. However, the adaptation of any work [Section 2 (a)(v)] includes the use of the work involving rearrangement or alteration which will certainly apply to a work of architecture. Accordingly the making of a work of architecture involving rearrangement or alteration by use of the original is an adaptation of the original work and would constitute infringement of the work if done without authority form the copyright owner.
Where the owner of the copyright in an artistic work chooses to apply industrially a design which corresponds to that artistic work to some article and if that design is registered under the Designs Act 1911 or under the present Designs Act 2000, then copyright protection will not be available under the Copyright Act. Where the design is capable of registration under the Designs Act but not registered the copyright in that design under the Copyright Act will cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or his licensee.[ix] In considering whether the design is capable of being registered in the context of the Copyright Act 1957 the only question is whether the subject-matter of the claimed copyright is a design within the meaning of the definition of a design under section 2(5) of the Designs Act 1911 i.e., whether the design is inherently registrable. Objections on the ground of want of novelty are, therefore, not to be taken into account. A design will be registered only if it satisfies the definition of a design and is new or original (section 43 of the Designs Act 1911).
If the phrase “capable of being registered” is to be interpreted so as to include the test of novelty also it will present a party invoking the exclusion with the potentially impossible burden of proving novelty having regard to all designs previously registered. Assuming the burdens were discharged, the totally unreasonable result will be excluded from copyright protection while one lacking that novelty will be subject of copyright. Thus a person who diligently registers a design is entitled almost to a fifteen year monopoly whereas one who neglects or deliberately omits to apply for registration is entitled to a monopoly for the life of the author plus 60 years. This leads to an absurd situation.[x] Where the design or drawing is not registrable under the Designs Act 1911 or under the present Designs Act 2000 but is otherwise an original artistic work, it will be entitled to protection under the Copyright Act.[xi]
In Camlin Pvt. Ltd. v. M/s National Pencil Industries[xii], it was held that in order to be covered by the Copyright Law, any work in which copyright is claimed must originate from the author who must have exploited his skill and labour and the work must not have been copied. However, Indian courts saw a radical shift in this position through the case of Eastern Book Company v. D.B. Modak[xiii] , wherein it was opined that a standard of minimum creativity and exercise of skill and judgment would be needed. This pronouncement shows that the court has now adopted a combination of the U.S. and Canadian positions as the Indian position on this issue. The protection of architectural works automatically directs us towards the issue of their infringement. An infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. Copyright law allows portions of a copyrighted work to be used without the author’s permission for specific purposes such as criticism, comment, news reporting, research, teaching etc. under the doctrine of fair use which is often used as a defence.
Lastly, it can be said that in India there is protection to the work of architectural, both in the Copyright Act, 1957 and Designs Act, 2000. But the same can be protected only under one Act. The architect cannot claim for protection in both the Acts. Therefore, in relation to the protection of such work in Copyright Act, registration is not a condition precedent for acquiring copyright[xiv]. But, contrary view was taken in Dhiraj Dharamdas Dewani v. Sonal Info Systems Pvt. Ltd[xv]. The court stated that “The infringer must be deemed to have knowledge about the copyright owner and such knowledge cannot be attributed unless the provisions of registration of copyright are complied with. Otherwise a person who is innocent can in that event be easily brought in the net of infringement under civil law or criminally, which can never be the intention of the legislature. Thus, if a copyright owner wants to enforce civil and criminal remedy before the special forum i.e. district court rather than a normal civil court, he must have the registration.” Therefore, there exists no superior judgement from the Supreme Court of India which can paint the mooted canvas.
References:
[i] Sec 2(c) of Copyright Act, 1957
[ii] Section 2(b) of Copyright Act, 1957
[iii] Walter v. Lane [1900] AC 539 at p. 552 (CA)
[iv] Section 2(c)(i) and 13(1) of Copyright Act, 1957
[v] Section 17(a) of Copyright Act, 1957
[vi] Section 17(c) of Copyright Act, 1957
[vii] Section 17(b) of Copyright Act, 1957
[viii] Section 14(c) of Copyright Act, 1957
[ix] Section 15, This section refers to the Designs act 1911 which has been repealed since 11.5.2001 and replaced by the Designs Act 2000. Consequential to amendment to section 15 of the Copyright Act 1957 does not appear to have been made
[x] Doral v. Bayliner [1987] FSR 497 at 503 (Canada)
[xi] Amp. Inc v. Utilux [1972] RPC 103
[xii] AIR 1986 Del. 444
[xiii] (2008) 1 SCC 1
[xiv] Jayanthilal M. Munoth & Ors. v. M. Durairanjan, 2006 (33) PTC 330 (Mad)
[xv] 2012 (52) PTC 458 (Bom)