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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) 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.,the 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.” 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. Ltd., 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”and 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.”However, 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.
About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at firstname.lastname@example.org
 RFA (OS) NO.25/2006
 CS(COMM) 83/2017