We’re pleased to bring to you a guest post by Abhijay Srekanth, discussing a Chinese decision on copyrightability of a musical water fountain show and analysing whether the courts’ approach therein is compatible with Indian copyright law. Abhijay is a 4th law student at Jindal Global Law School, Sonipat.
Copyrighting Musical Fountains: An Analysis of China’s Approach to Dynamic Artworks
The strict rules of copyright law have been criticised for not being able to account for emerging and dynamic forms of art. Public art displays, in particular, have had a tenuous relationship with copyright protection, the latter having failed on numerous occasions to recognise an artwork as protectable. The decision of the Chinese courts in Beijing Zhongke Shuijing Technology Co., Ltd. v. Lakeside Management Office of Hangzhou West Lake Scenic Area and Ors. is a breath of fresh air in the way it allows for a fountain-show to be considered as a copyrightable artwork. This post will briefly go over the court’s decision and analyse whether such an approach is compatible with Indian copyright law.
The Chinese Position
Beijing Zhongke Shuijing Technology Co. claimed to own a copyright over a fountain show it arranged to the music “Beauty Overthrowing States and Cities” and “Streets Where Wind Lives” at the International Horticultural Exposition Music Fountain. It alleged that Beijing Zhongke Hengye Zhongzi Technology Co. had plagiarised its arrangement and played it at the West Lake Musical Fountain (Hangzhou), thereby violating its copyright. The question that, therefore, emerged was whether a fountain-show was copyrightable.
The appellate court, inter alia, ruled that a musical fountain show would be copyrightable as a ‘fine-artwork’. Under Article 2 of the Implementing Regulation of Copyright Law of the Republic of China (hereinafter, ‘Implementing Regulation’), a ‘work’ is defined as “original intellectual creations in the literary, artistic and scientific domain, insofar as they are capable of being reproduced in a certain tangible form”. A work can be copyrighted if it meets four factors: (i) it is an expression, (ii) it is original, (iii) it is fixed (though this requirement may not apply strictly to all works), and (iv) that it can be replicated in some tangible form. On an evaluation of the water-fountain, the Court noted that the particular patterns of spray accompanying music and light were unique enough to be considered an original expression. In dealing with replication, the Court examined the infrastructure that enabled the fountain and held that the mechanical infrastructure and accompanying software when utilised by the fountain designer would produce the same show, thereby replicating the fountain at every instance resulting in its general protectability as a ‘work’.
When tasked with identifying the nature of a fountain-show work, the Court on applying ‘common sense’ deemed it fit to exclude the show from the ambit of a dramatic work or a performance. It then noted that the work was dynamic and could be considered a cinematographic or a similar work related to filming. This theory was immediately disregarded as a cinematograph requires ‘filming on a medium’ and the continuous spraying of water by a fountain hardly fits this criterion. The next question that arose was whether the complex computer code that helped enable the timing and synchronisation of water with music and light would give rise to a computer-code copyright. This too was abandoned as only the code and not its function (the resulting spraying of water in time with music and light) would be protectable, and the code was not argued to have been infringed.
The Court then finally examined whether the fountain show as a composite aesthetic experience would constitute an artistic work. Article 4(7) of the Implementation Regulation defines an artistic work as “means two- or three-dimensional works of the plastic arts created in lines, colours or other media which impart aesthetic effect, such as paintings, works of calligraphy and sculptures”. The spray was not random and was in-fact carefully designed to best complement the accompanying light and sound with height and ferocity of spray varying with the music’s volume and pitch. The show in its entirety contributed to a sense of aesthetic fulfillment in a similar way that conventional art does.
The Implementation Regulation’s recognition of dynamic art pieces as art was an all together different issue. In dealing with what is effectively an interpretative exercise, the Court adopted a model appreciation of the evolution of art. The illustrations, like those in its Indian counterpart, are largely static works. However, the Court held that in the absence of a strict exclusion of dynamic works or a duration requirement, expanding the scope of artistic works to include a dynamic artwork was not forbidden. It noted that the purpose of copyright law is to encourage the development of artistic, literary, and scientific works in order to culturally and spiritually enrich the public. The advent of technology has led to the development of novel mediums which in turn lead to the creation of artworks with unimaginable compositions, forms, colours, and styles. A literal interpretation based on the examples in Article 4 would not only result in artists being disincentivised from moving beyond anachronistic conceptions of art but run contrary to the very purpose of copyright.
Artistic Works under India’s Copyright Act
Section 2(a)(ii) of India’s Copyright Act, 1957 broadly defines an artwork as a painting, drawing, sculpture, photograph, engraving, work of architecture or any work of artistic craftsmanship. The open-ended definition of artwork allows for the legal regime to extend copyright protection to new forms of expression, contingent on such a work meeting the originality requirement. Its applicability to dynamic art forms like a fountain show is, however, uncertain. On an application of the ejusdem generis rule, artistic works defined under section 2(a)(ii) are mostly static works, though varying in composition and dimensions. The chassis of a fountain if original enough could possibly be protected as an artistic work. The problem that arises in conceptualising a show as an ‘artistic work’ is that as a dynamic work subject to environmental conditions, a fountain-show may not necessarily meet the ‘fixation requirement’.
Fixation Requirement and Art Works
The fixation requirement for a work to be present in a fixed medium is a mechanism through which the Copyright Act seeks to ensure a work is an expression and not just an idea. The Indian Act provides for an inclusive list of artworks that warrant a copyright but fails to specify a ‘fixation requirement’ within the text of the law, as opposed to the explicit fixation requirement within section 2(h) for dramatic works. That being said, the Copyright Manual for Artistic Works issued by the Department of Industrial Policy and Promotion defines an artistic work as “any work which is an original creation of an author or an owner fixed in a tangible form, is capable of being entered into the Register of Copyrights, irrespective of the fact that whether such work possess any artistic quality or not.” (emphasis supplied).
Not all jurisdictions approach the fixation requirement as flexibly as China. An example is the approach taken to applying the fixation requirement to artworks by the Seventh Circuit Court of the United States’ in its decision in Chapman Kelly v. Chicago Park District. The Court was tasked with examining the copyrightability of a massive flower arrangement. The Court noted that the flowers that made up the sculpture were transient, i.e., their colour and shape would change in time, leading to the entirety of the work itself becoming transient. Such a work would therefore not be tangibly fixed and could not be copyrighted. On an application of Kelly, one could argue that components of the fountain-show such as the music were definitely fixated in as much as the fountain show continued to function. However, the varying light streams and dynamic spray patterns of water would not be likely to be considered fixated as to warrant copyright protection.
The Chinese judgement does wonders in its appreciation for newly emerging forms of art and the way in which it attempts to accommodate the same within the existing legal regime. Interestingly enough, Article 4(7)’s definition of an artwork does not possess a provision that would anticipate ‘other artworks’ as section 2(a)(ii) of India’s Copyright Act. The Indian Act would therefore have no issue accommodating a fountain-show or any similarly dynamic artwork except for a ‘fixation’ requirement in the Copyright manual. Criticisms of the fixation requirement aside for a moment, the purpose of the requirement is to separate idea from expression. The replicability requirement under the Chinese Act in many ways meets the same purpose- the operations team is able to recreate the same show each time, ensuring that any protection is for a singular dynamic work and not the concept of a fountain show. In the absence of a strict statutory fixation requirement, copyright authorities should adopt an expansionary approach with the caveat that works meet the original-expression requirement.