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.

6 October 2010

Adaptations, Derivations and Transformations in Copyright Law

Copyright law protects the original expression of an idea when that expression takes the form of a protectable work such as a book or a musical work. In addition to protecting the original work, copyright law also proscribes persons from making adaptations of protected works without the permission of the owner of the copyright in the original work. Although the adaptation may be eligible for copyright protection in its own right, unless either the original work which has been adapted in it is in the public domain, or the necessary copyright licence has been obtained from the owner of the copyright in the original work, the adaptation would infringe the copyright in the original work.

There are, however, divergent opinions whether any copyright would subsist in the adaptation in the context of copyright theory. One opinion is that if a person has no right to “use” the original work, he would have no right in an adaptation of that original work. The other states that the adaptation would have a copyright subsist in it to the extent of the “new” and original material contained in the adaptation which was not present in the original work. This, of course, means that for the new material in the adaptation to be capable of being exploited separately, it must be capable of standing alone and not be entirely dependent on the original work for its existence.

Copyright is both a positive and a negative right though: it allows its owners to exploit it on one hand, and on the other, it prevents others from exploiting it. Therefore even if the owner of the new material in the adaptation were not capable of exploiting that new material himself because it was not capable of standing alone without the original work, he would still be able to prevent others from exploiting the new material which he had authored in the process of creating the adaptation.

Copyright theory, however, cannot exist independent of copyright law. In India, the Copyright Act of 1957 defines adaptations in the following manner in Section 2(a):
“Adaptation” means,- (i) in relation to a dramatic work, the conversion of the work into a non-dramatic work; (ii) in relation to a literary work or an artistic work, the conversion of the work into a dramatic work by way of performance in public or otherwise; (iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; (iv) in relation to a musical work, any arrangement or transcription of the work; and (v) in relation to any work, any use of such work involving its re-arrangement or alteration;
As is obvious from this definition, an adaptation under Indian law is basically a change of format i.e. a copyrighted work is converted from one format to another such as the conversion of a novel into a screenplay. It does not take into account an adaptation which is created by adding a significant amount of new material. In fact, such an adaptation would not fall within the definition of an “adaptation” under the Indian Copyright Act.

If one were to fall back on copyright theory, and read it in conjunction with copyright law, it might be possible to argue that adaptations, derivations and transformations, are distinct species although they do belong to the same family, that adaptations and derivations both belong to one genus and that transformations belong to another genus.
  • An adaptation is a work which is essentially the same as the original work although there may be a change in the format.
  • A derivation is based on the original work but is different from it since it incorporates an original contribution from its creator.
  • A transformation is a work which is completely new but is based on the raw data contained in the original work.
Both adaptations and derivations would infringe the original work, assuming that the original work had copyright subsist in it, in the absence of a licence from the owner of the copyright in the original work, but a transformation would not infringe the copyright in the original work and it would not require any licence from the owner of the copyright in the original work to be obtained for its creator to be able to exploit it. This is because both an adaptation and a derivation would substantially rely and rest on the original work, while a transformation would only use raw data in the original work i.e. ideas which are, in any case, not protectable by copyright.

In the US, Section 103 of Title 17 of the USC, inter alia, deals with copyright in derivative works. This Section states:
(a) The subject matter of copyright as specified by section 102 [17 USC 102] includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.
Indian law, however, does not contain a corresponding provision. The manner in which works which are inspired by other copyrighted works would be treated by Indian courts is extremely unclear. True, it would be relatively easy to determine whether one work infringed another. What would not be quite as easy would be determining what (if any) rights the author of the infringing work would have vis-à-vis his infringing work, particularly if his infringing work did not fall within the definition of an adaptation under the Indian Copyright Act and had either a substantial original contribution or completely changed the nature of the original work. As noted earlier, the definition of an “adaptation” under Indian law is extremely narrow and limited, and this limitation has created yet another grey area in Indian copyright law.

(This post is by Nandita Saikia and was first published at LawMatters.in on 3/09/10.)

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