Rights conferred in a copyrighted Artistic Work

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Introduction

Copyright provides legal protection and secures the rights, through the provisions of the Copyright Act, 1957, to the makers of original and authentic work. The nature of such work may vary but has a creative nature, it can be dramatic work, musical work, artistic work, literary work even cinematographic films etc. In all the above-mentioned cases, legal rights can protect the maker of such work, as long as the originality or authenticity of the work can be determined. Also, the work must exist, i.e. it must not be in intangible form, as the idea for a particular work cannot be protected by the provisions under the copyright act, only the expression, that is tangible work can be provided such protection. Such protection offered by this legislation is for a fixed time line, in India the general term for which is 60 years. Hence, copyright is utilized by an individual to ensure the first articulation of concept of their authentic work but not simply the concept or thought. It does not protect the means or approach required but the expression of the final work. the Copyright Act 1957, in May 2012 was amended by the Copyright Amendment Act, 2012 which not only brought conformity between the Indian legislation and the WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty, but also brought amendment in the rights available for artistic work, and other categories.

As the member of the international copyright treaties, the Berne convention and universal copyright convection. International Copyright Order 1999 which provides that the all the countries which are the member either of the Berne Convention or the International Copyright Convention, or both, the work of any nature which is published first in any of the member countries will be granted the similar approach of being first published in all such member countries. Therefore the same approach of being first published will be applied in India as well.

If any work is registered with the Registrar of Copyright, the following which are the entries in particulars of the Register of Copyright, or any such documentation or copies  indicating the same or the extract of the Registrar of Copyright, which is to be accompanied by the Seal of the Copyright Office shall act as Prima Facie Evidence and no further requirement or need for original documentation will be required. Also the same shall be admissible in courts.

As mentioned in Section 13(1), which provides that “Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, original literary, dramatic, musical and artistic works; cinematograph films; and sound recording.” [1]

Only creators and authorised individuals can replicate work without the fear of violation of law. Original work in a tangible form can be protected and registered under the Copyright Act, independent of the way of it having any creative abilities. Copyright is a legal right to the owners intellectual property. Original content or work piece like music album, photography, videography or any other work, if such original artwork is copied without prior permission or authorisation of the owner, it is a violation of the law. Also unpublished can also be copyrighted but for publishing the unpublished work, a copy of the manuscript is to be sent along with the application for registration of copyright.

Copyright is the legal means to protecting an owner or authors original work. This right is provided by law to the creators of literary, dramatic, artistic or musical work, or the producer of film , sound recordings. Copyright includes various rights like right to reproduction of the work, communication to the public, translation of work. Copyright is an exclusive right given to the owner of the work.

Artistic Work

For a work to copyrighted under Artistic Work, it is not necessary for it to maintain an artistic quality. According to section 2 Artistic work may refer to a painting or a sculpture or a painting which may be in the form of map or a diagram or chart or even a plan, also it may be an engraving or a photograph. It may be any other work of artistic craftmanship. Also work of architecture is also included under artistic work and is defined under Section 2(c) of the act.

“Work of architecture means any building or structure having an artistic character or design, or any model for such building or structure as provided under Section 2 (b). In addition to this, according to Section 13 (2) (iii), in case of work of architecture, the work shall be located in India. Further, read with Section 13(5) in case of work of architecture, copyright shall subsists only in the artistic character and design and shall not extend to process or methods of construction[2].”

“Photograph includes photo-lithograph and any work produced by any process analogous to photography but does not include any part of a cinematograph film as provided under Section 2 (s) of the Copyright Act.”[3]

“Engravings include etchings, lithographs, wood-cuts, prints and other similar works, not being photographs as provided under Section 2 (i) of the Copyright Act. Work of Sculpture includes casts and moulds as provided under Section 2 (za) of the Copyright Act[4].”

Also  work such as cartoons, logos, symbols, or even packaging for a brand is recognised for copyright protection under the provisions of this act. As such work allows for differentiating between different brands and their respective goods and services. Such work like logos, symbol, packaging etc allow a brand to set them apart from their competitors, which is why copyright protection is granted for the same.

The overlap between the registration provided as artistic work under Copyright act and the Designs Act 2000 are clarified under Section 15 of the copyright act. As the industrial design of an article provides for the artistic facet also. Irrespective of the dimension of the article, which may be a 2D OR 3D drawing, if aligned with the provision of Section 15, can be registered and granted protection under the Copyright Act.

Section 15 of the copyright provides that if the design of the article is registered under the Design Act 2000, it cannot be registered under the Copyright Act, affidavit for the same shall be provided by the owner. Also of the design of an article is registered under the copyright act and it has been reproduced for more than 50 times through industrial operations, then the copyright of the owner will be terminated.

The Hon’ble High Court of Delhi in the judgement of Microfibres Inc vs. Girdhar & Co & Anr provided the provisions and allowed for the overlap between the two acts to be over, as it provided that the copyright to be granted in cases of original work which can also be defined as design under the Design Act 2000 and can also be defined and registered as artistic work under the copyright act. As long as the original work is registered under the Design Act and has not been reproduced more than 50 times, the longer protection under the copyright act can be granted to such original work.

Artistic work and works of Applied Arts

When there is no contract between the owner of any artistic work and publishing service regarding ownership of Copyright, the rights regarding the same shall be firstly given to the owner of the artistic work for broadcasting or printing and all purposes, according to Section 17(a) of the legislation.

Artistic work recognised under the legislation varies from portraits, sketches, photographs, engravings, logos, diagrams, lithographs, charts, blueprints, cartoons, charts, cartoons, maps, sculptures of most kinds, drawings of architecture, engineering, circuits, garments, etc. In any case, among the previously mentioned works, there are a couple of special cases where the court may decline to acknowledge. For example, cosmetics or painting done on a pop star isn’t viewed as taken as a secured one. In each work of art, there are exemptions for which you ought to comply with. When the work is registered under the Copyright Act, it offers protection and rights, which can be widely classified into moral and economic rights. After the same, the artistic work can be altered, printed, multiplied, advertised by the maker of such artistic work.

To be eligible for registering under the Copyright Act, the degree of creativity is not of much importance. Therefore, work is not required to be extremely creative in order to qualify as artistic work under this legislation, slightest creativity will classify it as artistic work. as long as the originality and authenticity of work can be determined. The artistic work should utilise and communicate the dexterity, expertise and ability of the maker, also it should be the outcome of the perception of the maker, it should not be the outcome of some simple technical act to design the artistic work. In circumstances like, wherein an organisation has a logo of a fish or some mammal, the question arises if such a logo would be considered as artistic work under the legislation. Or such protection under the legislation be refused to the artist, since the logo contains the productions of nature, on which no individual or organisation can have such exclusive and restrictive rights. Such rights can be granted considering that the delivery of the logo containing them was made by use of some ability and judgement with respect to the maker of such logo. Since forms of nature can be communicated in multitudinous structures, a portrayal by an individual, applying his ability and judgment, would be exceptional to the individuals creativity, and in this manner, equipped for copyright security.

Also read: LAKSHWADEEP CRISIS

Artistic work containing such creations of nature have been consistently perceived by the Indian judiciary to be provided rights and security under the Copyright Act. For example, the renowned Panda logo of the World Wildlife Federation and the Crocodile logo of the acclaimed French dress brand, Lacoste, has been perceived as secured creative works by the Delhi High Court. Although originality and authentication is preconditioned and needed to secure protection and rights under the Copyright Legislation, but in the above mentioned circumstance, wherein the utilisation of creations nature is concerned, the originality and authenticity of the work would be decided based on the way in which such a creation of nature is portrayed and not simply the possibility of the making of nature itself.

Rights conferred in a copyrighted Artistic Work

The Rights conferred to the creator of the artistic work is provided in Section 14 clause (c) of the Copyright Act. Firstly the creator has the right for reproduction of the artistic work in his liking, which may be depicted in any material form, that is two dimension or three dimension, through electronics or some other medium. Secondly it is the right of communication given to the creator of artistic work, to publicise it to the public. The work may be published to the public via copies but they should have been published prior. Thirdly the creator has the right of composing any form of adaptations or translation of the artistic work and also the right to add it in cinematographic films.

Term of Copyright

Section 12 of the Copyright Act provides for the duration of Copyright, which is of 60 years, which shall begin from the death of the owner of the artistic work and if such artistic work has joint ownership, it shall begin from the death of the owner who dies last. Through this the owners work gets protected from being replicated or cheated.

Registration to obtain Copyright for Artistic Work and works of Applied Art.

The third category in the Registrar of Copyright is Artistic work. For registration of the work the process consists of filling, examination and registration, in this order.

For the process of filling,  Form IV along with all the required documents are to be provided to the Registrar of Copyright. The fees provided in schedule 2 are also to be paid along with the details of the applicant. The requirement documents must be  the copy of the work, ideally two copies should be provided for. If the process of registration is being done by an attorney then the Power of Attorney is also to be provided. Also Non objection Certificate for the registration for the artistic work is a must from the Trademark Registry. In the case of registration of copyright after death of creator, Non Objection Certificate from the legal heirs. Also the Non Objection Certificate will also be required from the publisher or owner, if they are different from the creator. Also for different artistic work, different applications are to be filled.

In the process of Examination, the application for copyright registration are examined. if there is any requirement of additional document, they are required to be submitted then. A Diary Number is to be issued to the application by the Registrar. 30 days mandatory period of wait is given for any objections to be raised and if any such objections are raised, reply is to be expected from the applicant for hearing and resolutions within a 30 day time period beginning from the date of the examination. In the absence of objections, the application will be thoroughly examined and scrutinised. Also if the objections were not cleared by the applicant the copyright registration of the artistic work will be rejected. 

If all objections are cleared and after the scrutinization the approval is granted, the certification will be issued from the copyright authorities to the applicant. Copyright becomes automatically effective as soon as it is created, that means no further formalities for claiming it will be required.

A copyright registration is a public record that helps the creator to prove his ownership over the work. Also Copyright registration gives certification to the owner of the Copyright to fie for the infringement and demand for damages incurred.

Conclusion

The provisions of the Copyright Act, 1957 aim to protect and provide rights to the creator of artistic works and works of applied art, in every possible scenario; with the help of the Copyright Amendment Act, 2012. It not only protects the work of such creators but also encourages other creators to get their work copyrighted. When such artistic work and works of applied arts are copyrighted, legitimate proof is provided, as it is prima facie evidence. Also, the works of applied art, along with artistic work that can be recognized as copyrighted cover various aspects of the same. Therefore, aiding in registration for copyright.


[1] https://copyright.gov.in/Documents/CopyrightRules1957.pdf

[2] https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf

[3] https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf

[4] https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf

Author: Harnoor Virdi

Editor: Kanishka VaishSenior Editor, LexLife India.

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