Shashank Mangal, a 4th year student from ILS law college, Pune brings us a point by point discussion of copyright in architecture under the Copyright Act. This is Shashank’s first submission to the 2nd Annual SpicyIP Fellowship applicant series. If I’m not mistaken, this is the first time the blog has looked into this aspect of copyright law in any detail.
Don’t copy my architecture
The scope of this post is confined to copyright in architecture. As per Section 13 of the Copyright Act, copyright subsists in artistic works. As per section 2(c) of the Act, it includes inter alia ‘a work of architecture, or any other work of artistic craftsmanship’. According to section 13 of the Act, in case of work of architecture, copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction. The validity of such a copyright as per section 22 is for a period of 60 years from the beginning of the calendar year next following the year in which the author dies.
This would mean that if I copy the architecture for, example, of ‘Akshardham Temple’ or the ‘Bandra-Worli Sea link’, Mumbai, ‘DLF Gateway Tower’, Gurgaon, ‘Infosys Training Campus’, Bangalore, I would be infringing upon the copyright of the architects of these.
Now, as per Section 14, the following rights vest in the architect or the author of the work of architecture;
- The storing of it in any medium by electronic or other means. [14(c)(i)(A)]
This would mean that if I am an artist and put the design of the architecture on my canvas; or if I am a tourist and get a photograph of myself clicked with the architecture in the background; or if make video of the architecture, then I am infringing the copyright of the architect in terms of S.51(a)(i). However, this wouldn’t be so because of the exception carved out by S.52(1)(s) read with S.51(a)(i).
But as provided by the extant law, making a sculpture of a work of architecture, unlike making its photograph, engraving and painting is not excepted, the rationale behind which is not clear. If it is argued that it has actually been provided in S. 51(a)(i), then a counter argument would be that if the sculpture is offered for sale, then S.51(a)(i) would not apply and the act would form infringement of the copyright of the architect, while if a photograph, engraving or painting is offered for sale it would not be an infringement of the architect’s copyright.
- To communicate the work to the public. [S. 14(c) (ii)]
Let us say that I am out for a vacation and have visited Akshardham temple. Unfortunately, there is an emergency in my office and I have to be present in a Board Meeting through video conferencing. So, I open up my laptop, connect to the internet with my dongle and join the meeting. In the background, besides my photograph, the board of directors can also see some part of the Akshardham temple. Have I infringed the copyright of the architect by communicating it to public as contemplated under section 2(ff) of the Act?
In this situation, though it seems unreasonable and absurd, I shall be liable to the architect because besides communicating his work to the public which is his exclusive right, I have also depicted in two-dimensions, a three-dimensional work.
- To include the work in any cinematograph film and to make any adaptation of the work. [S.14(c), (iv), (v)]
This means that for shooting a video of Akshardham Temple or for shooting a scene in a movie in Akshardham Temple, we need the permission of the architect. Fortunately, since Akshardham can be categorised either as a public place or any premises to which public has access, it is not so. S.52(1)(u)(i) of the act provides that inclusion in a cinematograph film of any artistic work permanently situated in a public place or any premises to which the public has access is not an infringement of the work.
But the things are not so happy when we talk about adaptation of the Akshardham Temple by a drama. Going by section 2(a)(ii), the adaptation of an artistic work in case of an artistic work means the conversion of the work into a dramatic work by way of performance in public or otherwise. Now, a dramatic work as defined by S.2(h) also constitutes a scenic arrangement. So, with this background in mind, if a scenic arrangement in a drama depicts Akshardham Temple or a part of it, and the performers, script writers etc. of the drama have not sought the permission of the architect for the same, it gives rise to infringement of the copyright of architect.
This does not seem to be equitable because while a cinematograph film showing Akshardham Temple does not constitute an infringement, a dramatic work showing it does.
A probable argument for defence in such a case could be that the work of architecture is only a part of the manifestation of the script of the drama and hence not an adaptation of the work of architecture. The counter-argument could be that adaptation contemplates even such kind of a use.
Besides, S.59 strikes a fatal blow to the copyright in architecture. It says that if I, wanting to give impetus to my real estate business, construct a Signature Tower, DLF can’t file for injunction against construction or its demolition if construction is already completed under the Specific Relief Act. Moreover, my building though being a infringing copy of ‘Signature Tower’ [S. 2(m(i)] would not become the property of DLF as happens in case of other infringing copies. The only remedy in such a case for DLF would be damages and criminal prosecution.
Interesting thoughts, though are the exceptions are really that narrow? Wouldn’t the the building in the background when you’re videoconferencing be covered by the words “display of a work of architecture” in Section 52(1)(s)? Again, surely the painting or model of a work as the backdrop to a stage production remains an artistic work covered under the same provision, though part of the larger scenic arrangement–it is only the latter in totality that is a dramatic work. Impossible to predict a decision, but you would surely have a good case to argue.
Respected Sir,
If it is correct to include video conferencing of the ‘work of architecture’ in ‘display of a work of architecture’, then it would mean that even if if the sole purpose of video conferencing is to communicate the work of architecture to the public, then also the person doing it is protected under S.52(s).
But this creates a problem of differential treatment. In a situation where, the producer of a cinematograph film communicates to the public his film which includes ‘the work of architecture’ in such a way that it is the principal matter represented in the film, then he doesn’t get the protection under S.52(u)(ii) but on the contrary infringes the exclusive right of the architect given to him by S.14(c)(iv).
While in both the cases, the work is getting communicated to the public, in the former case the person is not liable for infringement but in the latter he is.
Regarding your opinion on dramatic work, it will indeed be a good case to argue.
Thanks and Regards
Very pertinent. I failed to say that videoconferencing isn’t communication to the public, but the problem remains. Arguably, Sec. 52(1)(s) must be read subject to Sec. 52(1)(u) wherein Parliament has made a special provision on filmic display (distinguished from other forms of display) of any (including architectural) artistic work that is on private property & not accessible to the public: this is an arguably justifiable distinction. But the question turns on the relationship between 52(1)(s) and 52(1)(u) and remains arguable.