India’s desi AK – 47

India may soon have its desi AK – 47, reportedTimes of India. It is expected to be more potent than the Russian made AK – 47.  As per the report, the weapon which is developed by Tiruchirapalli Ordnance Factory in Tamil Nadu, is undergoing final rounds of evaluation. Not formally christened so far, the weapon is known as Tiruchirapalli Assault Rifle (TAR).
The report traced the development of the desiversion back to a Defence Expo in New Delhi in 2000. Apparently, a replica of desi AK-47 was put on display which invited the wrath of original designer, Mr. Mikhail Kalashnikov himself. On his threat to file a copyright infringement suit, the plans for a desi AK-47 were put on hold. Further, the report noted that the technology has been tweaked in the desi version to preclude any allegation on copyright violation.
Assuming the veracity of the report, I am intrigued by the idea of filing copyright infringement suit against the placement of replica of AK-47 in the Defence Expo. As you are aware of, copyright can subsist in a) Original literary, dramatic, musical and artistic works; b) Cinematograph films; and c) Sound recordings. If Mr. Kalashnikov contemplated filing a copyright infringement suit, the only plausible option is to file the suit claiming it as an “artistic work”. As per S. 2(c), “artistic work” means (i) a painting, a sculpture, a drawing, an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) work of architecture and (iii) any other work of artistic craftsmanship. Evidently, it would have been an arduous task for Mr. Kalashnikov to prove it as an “artistic work” and claim infringement.
Further, I am unable to comprehend the idea of tweaking technology to preclude allegations on copyright infringement. Copyright protects “expression” of an idea and not an “idea” by itself. In fact, when idea and expression become inseparable, copyright is not granted since protection of latter will lead to monopoly over the former (doctrine of merger). Even if the report meant tweaking of technology to preclude allegations on patent infringement, it would have been still incorrect – since the technology behind AK – 47 (adopted by Soviet Army way back in 1949) does not enjoy patent as it already formed part of prior art.
Considering the aforesaid aspects, I don’t think anyone can be blamed if he/she calls the report to be a puerile piece of writing!!
Mathews P. George

Mathews P. George

Mathews is a graduate of National University of Juridical Sciences, Kolkata. His interest in intellectual property was kindled when he bagged the second position in his second year of Law School (in the prestigious Nani Palkhiwala Essay Competition on Intellectual Property). His stint as a student of Prof. Shamnad Basheer further accentuated his interest in intellectual property. Winner of almost a dozen essay competitions in his Law School days, he was involved in various research and policy initiatives relating to intellectual property. Mathews is, currently, based out of Munich, Germany. He had earlier done his LLM in 'IP and Competition Law' from Munich Intellectual Property Law Centre (jointly run by Max Plank Institute for Innovation and Competition, University of Augsburg, Technical University of Munich and George Washington University, Washington).

One comment.

  1. AvatarMathews P. George

    I received this comment from Mr. Ameet Datta. Posting it for the benefit of readers:

    Interesting report. There is however adequate basis for Mr. Klashnikov / the copyright owner to claim copyright infringement in the drawings for the AK-47 assault rifle, which would be treated as ‘artistic works’ under the Copyright Act, 1957 (the reproduction of two dimensional drawings into three dimensional products). The only limitation I can see in such a claim is if the design of the rifle itself is subject matter of design registration or if it is registrable as a design which would of course ‘extinguish’ copyright in such drawings per section 15 of the Copyright Act (being mere manufacturing instructions for the design /’article’ hence being the design/article itself – per Vijay Sales v. Samsonite & Microfiber cases).


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