Issue of infringement of architectural works requires
understanding of protection of works when they are reproduced, distributed,
performed, publicly displayed, or made into a derivative work without the
permission of the copyright owner.
For example: if an
architect uses a part of the architectural design of another architect in order
to build his own building, without the prior permission of the architect who
owns the copyright from which the other architect derives his work, it would
amount to infringement. This permission may be obtained through an assignment
or a license for the use of the same. However, not all inspiration amounts to
infringement of copyright. 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 defense.
The protection of
architectural works through Copyright against infringement and imitation is
provided in the copyright act 1957. Therefore answer to the question of whether
architects could protect their "Architectural works" from
infringement? Is yes. Discussion on what is protected as part of Copyright of a
building, needs clear understanding of what is a copyright, what is an
architectural work, and is it an work of art or not?
Architectural works were
not afforded legal protection or any form of copyright protection till the
"Berne Convention" of 1908 was revised, after which it was included
in the ambit of "literary and artistic" works protected at
international level.
Despite architectural
works being considered artistic works, some structures have been kept outside
the scope of copyright protection, like bridges, dams, tents, boats are not
considered "buildings".
Freedom
of Panorama
"Freedom of
Panorama" is an exception to the other provisions of the Copyright Act,
1957. The term has not been explicitly incorporated in the Act but Section 52
of the Copyright Act interprets similar meaning to the terminology and lays
down certain acts which do not lead to copyright infringement. The section is
explained by the following points:-
- Any painting,
engraving, drawing or the display of a work of architecture, photograph of
a work of architecture can be made or published and has been incorporated
under section 52 (1)(s).
- The making and
publishing of a drawing, painting, photograph of a sculpture, or other
artistic work, engraving or any other work of artistic craftsmanship, if
such work is situated in a public place permanently or any premises where
the public has an access.
- Any artistic work
which is permanently situated in a public place or where the public has an
access is included in a cinematograph film.
- It is in this
regard that the Indian Copyright Law can be appreciated, as against
European and American copyright law which allows this freedom only if the
copyrighted work is used for non-commercial or educational purposes, the
Indian law is not subject to such demarcations.
Protection
under the ambit of Copyright Act
"In general, any
original work made by a person is eligible for copyright protection.
Originality refers to the fact that an author must have created the work
through the application of the author's own creativity and labour. In addition,
such work must have been reduced to a material form. Copyright comes into
existence as soon as a work is created and no formality is required to be
completed for acquiring copyright, although it is advised that the author/owner
of the copyright gets their work registered to make sure they can enforce the
rights conferred by the Copyright Law, should their copyright be infringed.
Different countries have different laws pertaining to copyright of artistic
works.
Indian law provides
protection to the 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.
According to Copyright act
1957-
Section 2(b) "work
of architecture" means any building or structure having
an artistic character or design, or any model for such building or structure;
Section 2(c)
"artistic work" means—
i.
(i) a painting, a sculpture, a drawing (including a diagram, map, chart or
plan), an engraving or a photograph, whether or not any such work possesses
artistic quality;
ii.
a work of architecture; and
iii.
any other work of artistic
craftsmanship.<
In India architects can
register their original works under the Copyright registration system. Also,
being a signatory to Berne Convention as well as Universal Copyright
Convention, 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", and therefore has both functional as well as artistic
attributes. Section 57 of the Indian Copyright Act also takes into
consideration the moral rights of the creator of the artistic work as well as
the rights of integrity and attribution of the author. The Indian copyright law
has also widened its scope to allow protection to the architectural design of
commercial buildings. We, at Khurana & Khuranahadthe
opportunity to register the copyright for architectural design of a commercial
building for our client Riis Retail, a company based out of Denmark, vide diary
no. 12158/2010/CO/Aon 10thof November, 2010!
Protection
under the ambit of Design Act
Section 2(d) of the Design
Act, 2000 has defined the term design as " the features of shape,
configuration, pattern, ornament or composition of lines or colours applied to
any article whether in two dimensional or three dimensional or in both forms,
by any industrial process or means, whether manual, mechanical or chemical,
separate or combined, which in the finished article appeal to and are judged
solely by the eye; but does not include any mode or principle of construction
or anything which is in substance a mere mechanical device, and does not
include any trade mark as defined in clause (v) of sub-section (1) of section 2
of the Trade and Merchandise Marks Act, 1958 or property mark as defined in
section 479 of the Indian Penal Code or any artistic work as defined in clause
(c) of section 2 of the Copyright Act, 1957."
The Design Act, 2000
provides for registration of Architectural works under Class 25-03 and 25-99.
Due to multiple provisions conferring protection to architectural works, a
conflict mayarise, whether Architectural works should be protected under the
Copyright Act, 1957 or under the Design Act, 2000 or whether
Section 15(2) of the Copyright Act, 1957 would come in play for determination
of what works would be protected through Designs vs Copyrights.
Application
of Mischief rule by the courts
Mischief rule pertains to
the interpretation of the statutes and is applied by the Courts when there is a
conflict between two laws or provisions of law on interpreting it by the words
as stated in the particular law or is interpreted by the courts to resolve the
confusion in its application. In the case of Microfibers Inc.
vsGirdhar& Co. &Anr.,1the
question was whether the design of an "artistic work" in fabrics
should be protected under the Copyright Act or the Design Act. The court by
applying the mischief rule stated that the "the mischief sought
to be prevented is not the mischief of copying but of the larger monopoly
claimed by the design proponent inspite of commercial production."2 The
court had held that if the design is registered under the designs act, the
design would lose its copyright protection, and if the design has not been
registered it would still continue to enjoy copyright protection as long as the
threshold limit of its application through an industrial process does not go
beyond 50 times, after which it shall lose its copyright protection. Delhi High
Court by giving a reference to the particular case in Holland L.P.
&Anr. vs A.D. Electro Stell Co. Pvt. Ltd3.,
where it was argued by the plaintiff that under section 2(c) read with section
13 of the Copyright Act he had the "right to convert a two
dimensional artistic work into a three dimensional constructions" 4and
that the "drawings" are capable of being copyrighted under Section
15(2) of the Copyright Act. Thus by the virtue of the two statements the
copyright should stay with him. The court rejected the plaintiff's contention
and stated that the drawing was capable of being registered under the Design
Act and it would lose its copyright if it is reproduced by the industrial
process more than 50 times and would also fall under the public domain.
International
Conventions protecting the architectural structures
Article 2(1) of
the Berne Convention requires member countries to extend copyright protection to, among
other things, "works of . . . architecture . . . and
three-dimensional works relative to . . . architecture." 5However,
the Berne Convention does not explicitly define what works constitute a
"work of architecture" entitled to protection, except that such works
may be "incorporated in a building or other structure." The Agreement
on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly
incorporates the Berne Convention's mandate for architectural copyright
protection without further defining what constitutes a work of architecture.
Architectural works were not included in the Convention of 1886, except for the
Article 4 which states "plans, sketches and artistic works relating to
architecture were specified.
Thus, the protection of
architectural works is an issue that has not been understood and discussed
enough. A large number of architects or designers lack the knowledge to protect
and enforce the IP rights in their building designs. Most of the countries have
now modified their laws to meet the requirements of the Berne Convention with
regard to the copyright protection for architectural works. Further, the basic
use of spaces such as windows and doors, which are elementary to any building's
structure, are not themselves protected by copyright law. In such a scenario
the Delhi High Court's judgment and the harmonious construction of the
Copyright Act and the Design Act has acted as a balancing beam to tackle the
issue.
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