Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

16 May 2016

Clothes and Intellectual Property

Going by the National Intellectual Property Rights Policy released a few days ago, it appears that the government considers attire, and not just the kind protected by geographical indications or established trade marks, to be protectable.

There are, of course, plenty of questions when it comes to clothes and IP but few concrete answers. Amongst the questions, all tweeted earlier at twitter.com/nsaikia:
  1. If you argue 2D to 3D conversion makes for artistic copyright for ltd ed tailored clothes where does that leave drapes?
  2. Drapes immediately artistic works? What happens if the art on them is based on a repertoire of trad motifs? Adaptation removes them from PD?
  3. If you're talking about handlooms, is it ever possible to chuck artistic copyright and head straight for a design right since pieces differ?
  4. How do hybrids work? Screen prints filled in by hand, eg. Do they turn into mechanised pieces or are they handicrafts?
  5. How can diffs btw similar pieces to either hit/avoid the design rights threshold be quantified? Stds differ for drapes/tailored clothes?
  6. If textiles are artistic works, would you treat them as sculptures or handicrafts? If the latter, how is the artistic component determined?
  7. If your clothes, tailored or draped include wearable tech, would they also qualify for software protection if there's software integral?
  8. How would your rights vary if your clothes have a software component? Would that mean that your clothes are subject to an owner's rental right?
  9. Is it possible to subvert the 3rd party rental right which presumably exists in attire sans embedded tech by embedding non-integral tech?
  10. If your work is ltd ed & below the design threshold, obv copyright potentially applies. Can new configuration of trad motif be protected?
  11. At what point and how do you tell a 'designer' that a traditional pattern is not protectable — would textile designs work like music arrangements?
  12. Is there any way to claim disparagement when it comes to trad design? The way copyrighted works are not intended to be mutilated per sec 57.
  13. Is there any 'core' design to trad motif at all? Substituting a flower with a skull is OK in the name of creativity? Or actionable?
  14. If your traditional textile is GI protected, what does that mean for the fashion-insti designer who intends to be 'inspired' by it?
  15. Are there different stds of permissible adaptation depending on whether or not there's a GI, and where/by whom the adaptation's executed?
  16. What would IP protection depend on other than number, provenance, structure, location (and the ability to hire a good lawyer)?
  17. And what in God's name is the status of the helicopter designer or so-called revivalist? How much leeway do they have to alter trad design?
  18. If historical documentation for a textile is missing, do supposed revivalists actually have the right to claim their work's a revival?
  19. Is it possible to initiate passing off or misrepresentation proceedings if unprotected textiles are represented to be what they're not?
  20. If you do initiate proceedings for misrepresentation, would that be through consumer & contract law? Would you have to prove a negative?
  21. Would a supposed revivalist bear any burden at all to prove that his work's a revival? Does homage constitute revival? Is it protectable?
  22. Would art on attire be impacted by 53A? If it is, what constitutes art: just painting or Bandhani, Ikat, embroidery, etc.? Who gets paid?
  23. Re Ikat do weavers & dyers have a joint claim to authorship? If Ikat is resold for 10K +, do they have a right to a % of the resale price?
  24. Would sec 52 E&L help subvert the ostensible rights of owners? Could wearable-tech-attire be dealt with sans ref to the tech component?
  25. Don't see how trad design can be effectively copyrighted & hope no├Âne tries to. But would like some otr protection. 
  26. Not sure what protection for traditional design should look like; GIs do not effectively work to protect trad design from misappropriation.
(Some tweets slightly edited.)

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