Artistic Work Under Indian Copyright Act, 1957

Understanding "Artistic Work" as defined under Copyright Act, 1957

Artist (A): I am wanting to know about some legal aspects related to my artistic work. Can you help me understand the definitions and terms in the Copyright Act, 1957?

IPR Lawyer (L): Yes, sure. Section 2(c) of the Act defines the phrase "artistic work". Artistic work is an inclusive definition and includes 

• paintings
• sculptures
• drawings
• engravings
• photographs
• works of architecture 
• any other work of artistic craftsmanship.

A: But what about adaptations? How does the law define them, especially concerning artistic works?

L: Well, section 2(a) defines "adaptation." In the context of artistic works, it involves the conversion of a work into a non-dramatic form for dramatic works, or into a dramatic work through public performance. It also includes abridgments or versions of literary or dramatic works conveyed mainly through pictures, suitable for reproduction in books, newspapers, or magazines. Additionally, it covers arrangements or transcriptions of musical works and any use involving rearrangement or alteration of a work.

A: Who exactly is considered the "author" of an artistic work?

L: The term "author" under Section 2(d) varies based on the type of work. For artistic works (excluding photographs), the artist is considered the author. This ensures that the creator retains rights over their creation. It also covers other categories like the composer for musical works, the producer for cinematograph films or sound recordings, and in the case of computer-generated works, the person causing the work to be created.

A: That's clear! And what about "infringing copies"? How does the law define them?

L: Section 2(m) defines "infringing copy" concerning artistic works. It is pointing us in the direction of the reproduction of a literary, dramatic, musical, or artistic work, except in the form of a cinematographic film. Thus, anyone reproducing your artistic work without permission- that would be considered an infringing copy.

A: Lastly, what does the term "work" encompass in the Copyright Act?

L: Section 2(y) defines "work" broadly. It includes 

• Literary
• Dramatic
• Musical or artistic works
• cinematograph films
• sound recordings. 

To make it amply clear, paintings, sculptures, and other artistic creations fall under the protection of copyright as "works."

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Section 13 of Copyright Act 1957- Works in which Copyright subsists w.r.t. Artistic Works

Artist: How is section 13- Works in which copyright subsists, applicable to artistic works?

IPR Lawyer: For Indian artists, it means that copyright protection extends to the artist’s original paintings, sculptures, drawings, and other artistic creations. Understand this- the works of renowned Indian painters like Raja Ravi Varma or contemporary artists like Bharti Kher fall under the protection of copyright laws of India.

Artist: That's clear. Now, what about the conditions for copyright to subsist? How does that work for Indian artists?

IPR Lawyer: Let's consider the Indian artist MF Husain. If any of his paintings had been first published outside India, then for copyright to subsist, Mr. Husain should have been an Indian citizen at the time of that publication. If he had passed away, then he should have been a citizen at the time of his death for Indian laws to be applicable.

For unpublished works, like sketches or drafts, an artist will need to be an Indian citizen or domiciled in India when creating those works for copyright provisions and protection under Indian laws to subsist..

Artist: Got it. And what about when copyright won't subsist, as mentioned in Section 13(3) and (4)?

IPR Lawyer: Suppose an Indian filmmaker creates a cinematograph film where a substantial part is an infringement of a copyrighted work by an Indian artist, say a mural by Satish Gujral. In such a case, copyright won't subsist for that film.

Similarly, if there's a sound recording made in respect of a literary, dramatic, or musical work by an Indian artist, and the recording infringes on the copyright of that original work, then copyright won't subsist for the sound recording.

Artist: Lastly, what's the deal with architecture, as mentioned in Section 13(5)? Any examples from Indian architecture?

IPR Lawyer: Consider the architectural works of Charles Correa. Copyright of his works of architecture covers the artistic character and design but doesn not extend to the processes or methods of construction.

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Section 14 of Copyright Act 1957- Meaning of Copyright w.r.t. Artistic works.

Artist: How should we interpret  "copyright" for artistic works? 

IPR Lawyer: Section 14 of Copyright Act 1957, will mean the exclusive right, subject to the provisions of the Act, to do or authorise the doing of certain acts with respect to your artwork. 

That is, an artist has the right:

(i) to reproduce the work in any material form, including storing it electronically or through other means;

(ii) to communicate, in any way, the work to the public;

(iii) to issue copies of the work to the public, not already in circulation;

(iv) to include the work in any cinematograph film;

(v) to make/ create any adaptation of the work;

(vi) to do, in relation to an adaptation, any of the acts specified above.

Artist: Interesting. Can you give me some examples to help me grasp this better?

IPR Lawyer: Certainly. Let us take the example of a sculptor. The sculptor has created a unique three-dimensional sculpture. Under Section 14, the sculptor will have the exclusive right to:

- Reproduce the sculpture in any form, including creating moulds for reproductions or digital representations.

- Communicate the sculpture to the public, perhaps by displaying it in an outdoor art exhibition.

- Issue copies of the sculpture to the public, like selling limited editions or prints of the artwork.

- Allow the sculpture to be included in a cinematograph film, maybe as a focal point in a documentary.

- Make adaptations of the sculpture, such as creating variations or incorporating it into a larger art installation.

These exclusive rights give you control over how your artistic work is used and shared with the public.

Artist: I see. And how about the provision regarding three-dimensional and two-dimensional depictions?

IPR Lawyer: You're a graphic artist creating intricate 2D illustrations. Then, u/s 14 of the Act, you will have the exclusive right to:

- Reproduce your two-dimensional work in any material form, including electronic formats.

- Communicate the illustration to the public, perhaps by showcasing it on a website or in a digital publication.

- Issue copies of the illustration to the public, like selling prints or digital downloads.

- Create three-dimensional depictions of your two-dimensional work, providing flexibility in how your art is presented, maybe by transforming a digital illustration into a sculpture.

Artist: Got it. And what about the part concerning cinematograph films?

IPR Lawyer: Suppose a filmmaker wishes to use your artwork in a movie. Section 14(d) grants you the exclusive right to decide whether to allow the inclusion of your artistic work in that cinematograph film. You have control over how your art is integrated into other creative works.

Artist: Lastly, how does this apply to sound recordings?

IPR Lawyer: If your artistic work, let's say a painting, is part of a sound recording, featuring in a music video, you will have exclusive rights to control the making of other sound recordings embodying your art. Selling or renting copies of such recordings, and deciding when and how the sound recording is communicated to the public, too will be under your copyright..

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Section 17 of Copyright Act 1957- First owner of Copyright w.r.t. Artistic works.

Artist: Who is the first owner of copyright?

IPR Lawyer: Section 17 outlines the first owner of copyright. As per this section, the author of a work is the first owner of the copyright. However, the section mentions certain exceptions where the ownership might differ.

These exception are as follows:

(a) Work created in course of employment for a newspaper, magazine, or similar periodical:

(b) photographs, paintings, portraits, engravings, or cinematography films made for consideration:

(c) work created in course of employment under contract not covered by (a) or (b):

(d) any address or speech delivered in public:

For ex: If you deliver a speech in the UN general Assembly in your own standing as an individual, you have copyright to that speech. If you deliver that speech as a representative or part of the Indian delegation, then it belongs to the Government of India.

(e) In the case of a Government work:

In such situations the Government is the first owner of the copyright unless there's an agreement stating otherwise.

(f) work made or first published by or under the direction or control of any public undertaking:

If a work is created or published under a public undertaking, then that undertaking becomes the first owner of the copyright, unless there is an agreement otherwise.

(g) In the case of a work covered u/s 41:

For works covered by Section 41, the international organisation concerned is the first owner of the copyright.

Artist: Got it. Thanks for breaking it down. What about Section 20 regarding the transmission of copyright through testamentary disposition?

IPR Lawyer: Section 20 deals with the situation where someone inherits the manuscript of a work through a will. If you inherit the manuscript of a literary, dramatic, musical, or artistic work, the bequest includes the copyright unless the testator's will indicates otherwise.

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Transmission of Copyright in Manuscript by Testamentary Disposition w.r.t. Artistic works.

Section 20 of Copyright Act 1957-

Artist: What is transmission of copyright through testamentary disposition?

IPR Lawyer: Section 20 deals with situations where a person inherits/ gets a bequest of manuscript of a literary, dramatic, musical, or artistic work through a transmission by way of a will. 

Here, if the work has not been published before the death of the person who made the will (the testator), the legacy/ bequest is considered to include the copyright in the work. Unless the will indicates a contrary intention by itself or through a supplementary will.

Artist: Explain the word "manuscript" in this context?

IPR Lawyer: The term "manuscript" refers to the original document embodying the artistic work. It could be a hand-written document or a document created by other means, like a typed or digital document. Essentially, it's the tangible form of the work that represents the creative expression.

Artist: So, if I inherit the original document embodying an artistic work through a will, I also inherit the copyright associated with it, unless the will says otherwise?

IPR Lawyer: Exactly. If the will is silent or doesn't indicate a contrary intention, the bequest is understood to include the copyright in the artistic work. This provision is crucial for ensuring that the rights to the artistic work are passed down as part of the inheritance.

Artist: Any example to illustrate this?

IPR Lawyer: Certainly. Let us say you're a painter. A wealthy art collector appreciates your work. In his will, he/she specifically bequeath to you the original paintings owned by him/her, including all associated manuscripts. This section ensures that, unless the will indicates otherwise, along with the physical paintings, you also inherit the copyright to those artworks. It allows for the continued protection and control of your creative rights.

Artist: I see. So, it's about ensuring that the rights to the artistic work are passed down through inheritance.

IPR Lawyer: Exactly. It's a legal provision to safeguard the rights of artists and creators, even after their works are passed on to others through testamentary disposition.

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Section 22 of Copyright Act 1957- Terms in Copyright in Anonymous and Pseudonymous works w.r.t. Artistic works.

Artist: What is the duration of copyright for my artistic works under the Copyright Act?

IPR Lawyer: Section 22 outlines the duration of copyright for published artistic works. According to Section 22, copyright in any published artistic work subsists until 

-sixty years 

-from the beginning of the calendar year next, 

-following the year in which the author of the work dies.

All the Rabindra Geet as written by Gurudev Rabindranath Thakur were copyrighted. After 60 years of his death, any person has the right to use Gurudev’s work and tune his poems in the manner they want to.

Artist: How long does the copyright last, if I have published the work when I am alive?

IPR Lawyer: The copyright protection will be available for for 60 (sixty) years from the beginning of the calendar year,  following the year of your death.

Artist: How will this be calculated in the case of a work created by joint authors?

IPR Lawyer: The act has been cleverly drafted. The reference to the author here is to be construed as a reference to the author who dies last. Therefore, the operating date will be based on the death of the last surviving joint author.

Artist: Got it. And what happens after the copyright duration expires?

IPR Lawyer: After the expiration of the sixty-year period, the artistic work enters the public domain. This means that the work is no longer under copyright protection, and others are free to use, reproduce, and distribute it without seeking permission or paying royalties.

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Section 32A of Copyright Act 1957- Licence to Reproduce and Publish works for Certain purposes w.r.t. Artistic works.

Artist: I came across Section 32A in the Copyright Act and it talks about obtaining a licence to reproduce and publish certain works. Can you help me understand what this means from an artist's perspective?

IPR Lawyer: Absolutely. Section 32A is the section that allows reproduction and publication of works under specific circumstances. The provisions hereunder come into play after the expiry of a certain period from the date of the first publication of a literary, scientific, or artistic work. 

If, after this period, the copies of the edition are 

-not available in India 

-nor are they on sale for six months to the public or 

-are not available for systematic instructional activities 

- at a reasonable price, 

then in such a case, any person can apply to the Appellate Board for a licence to reproduce and publish the work.

Artist: What is the relevant period mentioned in this section?

IPR Lawyer: The relevant period depends on the nature of the work. 

• seven years for works related to fiction, poetry, drama, music, or art; 
• three years for works related to natural science, physical science, mathematics, or technology; and 
• five years for any other type of work.

Artist: Please explain with help of an example?

IPR Lawyer: Say you have created an art book. If, after seven years from the date of its creation, the copies of the book are not available in India nor has it been on sale for six months,  then any other person can apply for a licence to reproduce and publish your art book, ensuring it remains accessible to the public.

Artist: What conditions are there for granting such a licence?

IPR Lawyer: Several conditions need to be met. The applicant must prove that they tried but couldn't get authorization from the copyright owner. They must be competent to reproduce and publish the work, undertake to do so at a price set by the Appellate Board, and adhere to specific criteria, such as including the author's name on all copies.

Artist: What if the work is a translation?

IPR Lawyer: If it's a translation, the original translation must have been published by the copyright owner, and the translation should not be in a language in general use in India.

Artist: Does this section also apply to audio-visual fixations used for instructional activities?

IPR Lawyer: Yes, the provisions of this section also apply to the reproduction and publication, or translation, of any text incorporated in audio-visual fixations intended for systematic instructional activities.

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Section 45 of Copyright Act 1957- Entries in Register of Copyrights w.r.t. Artistic works.

Artist: I've created a unique artistic work and want to protect it. Explain Section 45 of the Copyright Act, 1957,  in the context of artistic works?

IPR Lawyer: A register is maintained u/s Section 45 of the Act where each copyright that has been issued/ registered, is recorded. Entry in this Register of Copyrights, starts the copyright protection. As the author, publisher, or owner of the copyright, you can apply for the registration of your artistic work by 

-submitting an application in the prescribed form to the Registrar of Copyrights. 

- accompanied by the prescribed fee.

Artist: Are there any specific requirements for artistic works, like mine, that are used in relation to goods or services?

IPR Lawyer: In accordance with relevant provisions, applications for artistic works utilised in conjunction with goods or services require a clear declaration highlighting its intended use. This statement should accompany a certification from the Registrar of Trademarks. This certificate states that ‘no identical or misleadingly similar trademarks have been previously registered under the Trade Marks Act of 1999’.

Artist: What is the process after submission of the application?

IPR Lawyer: Once you submit the application, the Registrar of Copyrights will review it. They may also conduct an inquiry if deemed necessary. After this process, if everything is in order, the Registrar will enter the particulars of your artistic work into the Register of Copyrights.

Artist: How does registration benefit me as an artist?

IPR Lawyer: Registration offers several benefits. It serves as prima facie evidence of ownership, making it easier to establish your rights in case of any dispute. It also provides public notice of your claim, preventing others from claiming ignorance of your copyright. Moreover, registration is often a prerequisite for legal actions against infringement.

Artist: Do I have to register my artistic work to claim copyright?

IPR Lawyer: No, copyright is automatic upon the creation of the work. However, registration provides additional advantages and legal benefits, making it a recommended step for artists who want to protect their creations comprehensively.

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Section 51 of Copyright Act 1957- When Copyright Infringed w.r.t. Artistic works.

Artist: Explain Section 51 of the Copyright Act,1957 in the context of copyright infringement with respect to ‘artistic works'?

IPR Lawyer: Copyright infringement happens when someone, without proper authorisation:

- Does something that exclusively belongs to the copyright owner under this Act.

or

- Allows, for profit, any place to be used for public communication of the work if it constitutes an infringement of the copyright, unless they were unaware and had no reasonable grounds to believe it would be an infringement.

Artist: Can you give an example to illustrate?

IPR Lawyer: Certainly. Example- You have created a unique painting. Someone, without your permission, reproduces it and displays it in a public gallery for profit. This act would amount to copyright violation/infringement under Section 51.

Artist: What about selling or distributing copies of my artistic work without permission?

IPR Lawyer: That's covered too. If any of your artistic work  is made, sold, displayed, or distributed without permission/ authorisation, it would be considered copyright infringement. Ex:unauthorised copies of your artwork when mass-produced and sold in the market without your consent, will be a violation under this section.

Artist: What about cinematograph films?

IPR Lawyer: The section also works as a deeming provision. When an artistic work is reproduced/ displayed in the form of a cinematograph film, it is deemed to be an "infringing copy". 

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Section 52 of Copyright Act 1957- Certain Acts not to be Infringement of Copyright w.r.t. Artistic works.

Artist: Can you explain Section 52 of the Copyright Act in the context of artistic works?

IPR Lawyer: Certainly. Section 52 lists acts that do not constitute copyright infringement. The section provides several exemptions. Some key ones include:

1. Fair Dealing for Specific Purposes: Acts such as private or personal use, criticism or review, reporting of current events, including public lectures, are exempted. This includes storing works in electronic media for these purposes.

2. Computer Programme Use: Making copies or adaptations of computer programs for lawful possession, back-up copies, and acts necessary for obtaining information for inter-operability.

3. Educational Use: Reproduction of works by teachers or pupils during instruction, in examinations, and performances within educational institutions for a limited audience.

4. Library Use: Storage of works in non-commercial public libraries for preservation and making not more than three copies of a book for non-commercial library use.

5. Judicial Proceedings: Reproduction of works for judicial proceedings and reports of judicial proceedings.

6. Artistic Works in Public Places: Making or publishing paintings, drawings, engravings, or photographs of works permanently situated in public places.

7. Cinematograph Films: Inclusion of artistic works in cinematograph films, provided it's incidental to the principal matters represented.

8. Three-Dimensional Objects: Making three-dimensional objects from two-dimensional artistic works for industrial application of purely functional parts.

9. Architectural Works: Reconstruction of buildings or structures according to original architectural drawings, with the consent of the copyright owner.

Artist: Can you provide an example to illustrate?

IPR Lawyer: Certainly. Let's say your artistic work is permanently displayed in a public park. Section 52 allows others to make or publish paintings, drawings, or photographs of your work, considering its location in a public place.

Artist: What about adaptations or translations?

IPR Lawyer: Section 52 extends to adaptations or translations of literary, dramatic, musical, or artistic works, just as it does for the original works. This includes acts necessary for obtaining information for inter-operability or observing, studying, or testing the functioning of computer programs.

Artist: How does this section address accessibility for persons with disabilities?

IPR Lawyer: The section allows adaptations, reproductions, or communication to the public of any work in an accessible format to facilitate persons with disabilities. Organisations working for the benefit of persons with disabilities can engage in these acts on a non-profit basis, recovering only the cost of production.

Artist: Are there any provisions for importing copies of works?

IPR Lawyer: Yes, the section allows the importation of copies of literary or artistic works, such as labels or promotional material, incidental to other goods or products being imported lawfully.

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