Intellectual Property Right and Human Right of an Artist

IPR

Picture Courtesy: http://www.law.careers360.com/sites/default/files/content_pic/IPR.jpg

This article was written by Supriya Choudhary a student of CNLU, Patna.

  • INTRODUCTION

A work of art is a representation of an artist soul, where the artist pours the colours of his/her belief and emotions. The renowned Italian artist Leonardo da Vinci said, “A painter should begin every canvas with a wash of black, because all things in nature are dark except where exposed by the light.”

The Indian culture and art has been rich in its colours of contemporary art embellished with paintings to narrate the stories of their era. Today with the growing opportunities and technologies, the need to protect the beam of light converged on a canvas of the artist has resulted in inclusion of intellectual property rights in the Indian legal system. In this article, the intellectual property right and human rights of an artist has been discussed along with the case study.

  • Intellectual Property Right

Intellectual property is the creative work of the human intellect and its protection promotes the creators interest. Nations have given statutory expression to the economic rights of creators in their creations and to the rights of the public in accessing those creations.

According to article 2(viii) of the Convention Establishing the World Intellectual Property Organisation (WIPO) 1967, intellectual property includes right relating to

  • Literary, artistic and scientific works;
  • Performance of performing artists, phonograms and broadcasts;
  • Inventions in all fields of human endeavour;
  • Scientific discoveries;
  • Industrial designs;
  • Trademarks, service marks and commercial names and designations;
  • Protection against unfair completion;

The intellectual property thus, includes copyright, trademarks, service marks, patents, geographical indications, utility models, etc. Here emphasizing on artwork such as paintings, the focus is on subsistence of copyright in artistic work.

  • COPYRIGHT:

Copyright constitute an essential element in the development process of a country. The enrichment of the national cultural heritage depends directly on the level of protection afforded to the creator. The higher the level, the greater the encouragement for the creators to create; the grater the number of a country’s intellectual creations, the higher it’s renown. This results in all social, economical and cultural development.

Indian copyright law is at equivalence with the international standards as contained in TRIPS. The Indian Copyright Act, 1957, pursuant to the amendments in the year 1999, reflects the Berne Convention for Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to which India is a party. India is also a party to the Geneva Convention for the protection of rights of producers of phonograms and is an active member of the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organisation (UNESCO).[1]

The copyright law along with the protection of the copyright owner also deals with the subject of public interest. It is a bundle of exclusive rights and is called as a negative right which means that the right owner can prevent all others from copying his work or doing any other acts which according to the copyright law can only be done by him/her. If it can be shown that two precisely similar works were in fact produced wholly independently of one another, there can be no infringement of copyright by one of the other. These laws are not concerned with the originality of ideas, but with the expression of thought, however originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation.

An “artistic work”[2] means;

  • 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;
  • A work of architecture;
  • Any other work of artistic craftsmanship

Another expression used in the definition of artistic work is a painting which is a product of the art of representing or depicting by colours on a surface. A famous artist Pablo Picasso said “Painting is just another way of keeping a diary”, and every nation undertakes a responsibility to protect the citizens’ belief and sentiments. So it is important to protect every painting as artistic work whether or not it possesses any artistic quality. But a painting cannot be protected under Copyright Act, 1957, unless it is found as an original work of the creator. A painter shall employ his skills in his painting or work and labour in seeking to depict some actual object or abstract design, the work can only then be protected.[3] Under Copyright Laws ideas are not protected but the expression, a painting is an object where idea of an artist has been expressed and not an idea, therefore, it can only be done on some kind of surface. In an English case, it was held that facial make-up as such, however idiosyncratic it might be as an idea, was not a painting within the meaning of section 3 of the UK Copyright Act, 1956.[4]

An idea irrespective of its originality is not protected by copyright. In case where the plaintiff procured an artist to make under his directions, a drawing of the representation, it was held that the plaintiff was not entitled to prevent the artist to publish such drawing afterwards because copyright did not subsist in ideas.[5]

Original photographs are also protected as artistic work irrespective of their artistic quality. A case where a painter makes a painting from a photograph as a reference may raise a question of copyright infringement of the photographer. In Bauman v. Fussel,[6] it was observed by Somarwell L.J. that a painter, who was told to make a picture of the procession, in his own style, would not be committing a breach of copyright if he used the photograph of the plaintiff to enable him to get accurately the relative position of those taking part. Further, in Associated Publishers v. Bashyam,[7] it was held that a portrait based on two photographs could become the subject of copyright if it is original and produced a result different from the photographs.

Section 14 of the Copyright Act, 1957 confers following rights on the owner of copyright in respect of his/her artistic work:

  • To reproduce the work in any material form including-
  • The storing of it in any medium by electronic or other means;
  • Depiction in three-dimensions of a two-dimensional work;
  • Depiction in two-dimensions of a three-dimensional work.
  • To communicate the work to the public;
  • To issue copies of the work to the public not being copies already in circulation;
  • To include the work in any cinematograph film;
  • To make any adaption of the work;
  • To do in relation to an adaption of the work any of the acts specified in relation to the work in clauses (i) to (iv)

The copyright of an artistic work is infringed by the reproduction of it or any substantial part of it, in any material form without consent of the artist. As we have already seen that copyright does not subsist in idea. So, if the defendant copies the plaintiff’s idea and does not appropriate the plaintiff’s labour in putting that idea into practice, there shall be no infringement of the plaintiff’s labour in putting that idea into practice, there shall be no infringement of the plaintiff’s copyright.[8] In King Features Syndicate v. O and M Kleeman,[9] the House of Lords held that where there was substantial similarity such that the similarity was prima facie evidence of the copyright which the party charged might refute by evidence that, notwithstanding the similarity, there was no copying but independence creation.

The test to determine whether a work is a reproduction of the other work is a question of fact and shall be decided by the court. However, it is difficult to lay down a definite test for such purpose; the court has given certain tests in matters of copyright infringement by reproduction of a work. In Associated Electronics and Electrical Industries P Ltd. v. Sharp Tools, Kalapatti,[10] the court held that one of the surest test to determine whether or not there has been a violation of copyright is to see if the reader, spectator, or the viewer after having read or seen both the works would be clearly of the opinion and get an unmistakable impression that the subsequent work appears to be a copy of the first. The main objective of this test is to put the visual appearance of the artistic work in question and by applying the test court may decide whether there is copyright infringement; court lays observer test to persons who are not experts in relation to objects of that description, if the objects appears to be a reproduction or not. If to the ‘lay observer’ it would not appear to be reproduction, there is no infringement of the copyright in the artistic work.

If any artistic work such as a painting or drawing has been used as the basis for designing an industrially produced object for commerce, the original painting or drawing would indeed enjoy full copyright protection, while the result of the industrial production of the ultimate product shall enjoy lesser period of protection as stipulated under the Design Act provided it is registered as a design under the Design Act. Publishing an artistic work without permission of the creator leads to infringement of copyright of the owner, here publishing may be referred as issuing reproduction to the public. According to section 3 of the Copyright Act, publication means making a work available to the public by issue of copies or by communicating the work to the public for being seen or otherwise enjoyment, either directly or by any means of display or diffusion other than by issuing copies of such work.[11]

The creator of an original artistic work has a right to share in the resale price of such original copy. In case of resale for a price exceeding Rs. 10,000/- of the original copy of a painting or any other artistic work, the author of such work if s/he was the first owner of rights under section 17 or his legal heirs shall, notwithstanding any assignment of copyright in such work, have right to share in the resale price of such original copy.[12] However, such right shall cease to exist on the expiration of the terms of copyright in the work. The share of creator in the resale price shall be fixed by the Copyright Board which shall not exceed ten percent of the resale price.

An artist holds moral rights on his/her creation, even after the work has been sold. Provision as ‘Author’s special rights’ has been given under section 57 of Copyright Act, 1957, the purpose of moral rights is to restrain or claim damages in respect of any distortion, mutilation or other act in relation to the said work which is done before the expiration of the term of copyright if such distortion or other act would be prejudicial to the artist’s honour or reputation.

  • Human Right of an Artist

Under this title, the difficulties that affect art when it is confronted with legal measures that aim to preserve public morality are emphasised. The laws seldom respect the fact that art has a unique ontology that does not easily fit the working of general legal mechanisms designed and utilised for censorship purpose. The role of art has been stimulating to bring change in society since colonial period, which has raised the debate in the moral realm however, it is crucial for development.

The celebrated Indian painter Raja Ravi Varma said, “The importance of recovering the customs and the institutions of the past thus is by inaugurating the archaeological approach to art.” He is famous for his paintings based on Indian mythology and epics, and controversies. Rupika Chawla, who authored Raja Ravi Varma: Painter of Colonial India, points out that Ravi Varma was conscious about his clientele, the princes and dewans he portrayed, an ambitious mix that made him one of the finest Indian artist to do portraits. His vision credits in making him a remarkable artist, he founded a printing press in Mumbai in 1894 that churned out inexpensive oleographs of his paintings. God descended from the temple stone and made itself comfortable in small homes in dingy huts.[13]

He was charged at Bombay Court with cases of obscenity, offending public morality and hurting religious and cultural sentiments of people. With his paintings he was tagged as the rebel of those times he was the first artist to fight for what he believed in his art. He was absolved of those charges[14] and gave out a strong message to people that art cannot be suppressed.

The other artist who was caught in web of controversies is Maqbool Fida Husain. He took Indian art to the global stage with his cubist inspired modern art but was riled in controversy with his painting on Hindu deities.

Synonymous with contemporary Indian art, the painter was described as the “Pablo Picasso” of India by Forbes magazine.[15]

In Maqbool Fida Husain v. Raj Kumar Pandey,[16]case one of the paintings of M F Husain, later titled ‘Bharat Mata’, depicts India in the form of a naked woman. The artist sold the painting to a private collector in 2004; later in 2006 the painting was advertised in an online charity auction for earthquake victims. The advertisement of the painting led to protest. The Supreme Court consolidated and transferred the matter to Delhi. The trial court in Delhi issued summons to the artist for offences under section 292 of the IPC, which punishes distribution of obscene materials, section 294 of IPC, which punishes obscene acts and songs and section 298 of IPC, which punishes expression intending to hurt religious sentiments. It was also alleged that he was liable under section 500 of IPC, which punishes defamation and under the Prevention of Insults to National Honour Act and the Emblems and Names (Prevention of Improper Use) Act because his painting depicted Ashoka Chakra, a symbol that forms part of the Indian national flag and national emblem, in an objectionable manner. The artist filed the revision petition against this trial court order.

In this case the court held that the painting is not obscene under section 292 of the IPC. It is not lascivious, does not appeal to the prurient interest and has no tendency to deprave and corrupt persons who are likely to see it. Its artistic expression overrides any obscenity that may arise on account of the nudity depicted therein.[17]

In The Constitution of India, Part III with title Fundamental Rights provides provisions for protection of certain rights regarding freedom of speech, etc under article 19; in the above stated case to give proper decision the broad realms of the law relating to obscenity and the artistic freedom within the parameters of article 19 was considered by the court and for this case of Chaplinsky v. New Hampshire,[18] wherein the Court recognized “obscenity” as an exception to an absolute freedom guaranteed by the American Constitution.

The Indian Penal Code on obscenity has grown out of the English Law and while interpreting the meaning of “obscenity” the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra[19] uniformly adopted the test laid down by the English Court in Hicklins Case Supra wherein it was held that the word “obscene” in the section is not limited to writings, pictures etc. intended to arouse sexual desire. At the same time, the mere treating with sex and nudity in art and literature is not per se evidence of obscenity.

It was emphasized that the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. Where art and obscenity are mixed, art must so preponderate as to throw the obscenity out into the shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked.[20] In S. Rangarajan’s case, the Apex Court dealt with the aspect of censorship and held that freedom of expression cannot be held to ransom, by an intolerant group of people. The fundamental freedom under article 19(1) (a) can be reasonably restricted only for the purposes mentioned in article 19(2) and the restriction must be justified.

  • CONCLUSION

Our legal system lays down provision for every trivial matter, with an aim to maintain peace and harmony in the nation. We have freedom to express our views, freedom of speech, freedom to exercise our religion, freedom of conscience and free profession and more, within the required parameter every citizen is a free bird and we all have to fly together.

An artist’s imagination can vast as universe, there is no end to. They are being gifted to see the world in the way that no one else can even believe. Our history is evidence of beauty of art; ancient Indian art has been never devoid of graphical representation of the union between man and woman. The beautiful sculpture on the earliest temple of Konarak and Puri in Orissa; Khajuraho in Madhya Pradesh; Limbojimata temple at Delmel, Nilkantha temple at Sunak near Baroda and many more. Regarding art the outlook of people should be more futuristic. They should acknowledge that morally controversial art forms one of the vital tools for the stimulus of society and its subsequent maturing, notably in its tolerance of sexual moral diversity as frequently demonstrated in the arts. They shall appreciate the beauty of artistic expression. Expressions which are generally noted to hurt sentiments and religion are part of the religion carved on the famous temples. The modern generation shall have broader thinking to understand the abstract nature of art. The Judicial system has broader view in the judgments of above cases and the provisions of Copyright Act, 1957, plays a vital role protecting and encouraging the development of art in the nation.

[1] Vijay Pal Dalmia, Partner ,Vaish Associate Advocates; Article “Copyright Law in India”,www.mondaq.com accessed on 24/7/2016

[2] Section 2(c), Copyright Act, 1957

[3] Hugh Laddie et. al., “The Modern Law of Copyright”, London, 1980, pg:107

[4] Merchandising Corporation of America v. Harpbond,(1983)FSR32

[5] Kenrick & Co. v. Lawrence & Co.,(1890)25QBD99

[6] (1978) RPC 485 at pg: 487

[7] AIR1964 Mad 114

[8] V K Ahuja, LexisNexis, “Law Relating to Intellectual Property Rights”, 2nd edition, pg: 70

[9] 1941 AC 417

[10] AIR 1991 Kant 406 at pg: 412:(1992) IPLR 96 at pg: 105

[11] V K Ahuja, LexisNexis, “Law Relating to Intellectual Property Rights”, 2nd edition, pg: 72

[12] Section 53A, Copyright Act, 1957

[13] Rajan Luthra, Article: “Raja Ravi Varma: Portrait of an Artist”, published: 15/4/2016, http://theculturetripcom, accessed  on 25/7/2016

[14] “Raja Ravi Varm: King of Controversies”, www.saharasamay.com, accessed on 25/7/2016

[15] M F Husain: An Artist who courted both fame & controversy”, published: 9/6/2011, http://articles.economictimes.indiatimes.com, accessed on 26/7/2016

[16] Crl. Revision Petition nos. 282/07;114/2007&280/2007;Delhi High Court, May 8,2008

[17] “Maqbool Fida Husain v. Raj Kumar Pandey case”, https://globalfreedomofexpression.columbia.edu, accessed on 26/7/2016

[18] 315U.S. 568

[19] 1965AIR881, 1965 SCR(1)65

[20] https://indiankanoon.org, accessed on 26/7/2016

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