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.

5 November 2010

The Territorial Extent of Copyright Contracts

The Indian Copyright Act mandates that the territorial extent of and time period for which rights are granted in a copyright agreement be specified in the agreement, whether it be a licence or an assignment. If the extent it is not so specified, it is presumed to be India. And if the time period is not specified, it is deemed to be five years. Generally, Indian contracts specify that rights are granted “in perpetuity throughout the world”, and rights are not divided too finely in terms of territory (unless, of course, the author-licensor/assignor has far more "power" that the licensee/assignee; a situation which one does not often encounter).

Going beyond Terrestrial Limits

Of late though obtaining perpetual, worldwide rights hasn't satisfied some entities though, and there has been a trend to have a contracts grant “all rights throughout the universe” possibly “from the beginning of time” and “till the end of  time”. That such language may seem more suited to an epic poem than to a modern legal document has not deterred lawyers from using it. Attempting to explain the phenomenon in 2009, the WSJ proclaimed that “Paranoia is Paramount” in an article entitled “Lawyerese Goes Galactic as Contracts Try to Master the Universe”.

Despite the fact that phrases like “from the beginning of time” may seem entirely out of place in a contract, they are, nonetheless “efficient and reliable” methods to ensure that there are no limitations or restrictions on the rights which have been granted vide the contract. However, the fact remains that the use of overkills may in reality detract from the meaning of an agreement. For example, while it may be possible to assign rights in a work from the time of their inception, it isn't clear how an assignee could be considered to be, say, the “sole and exclusive owner of those rights from the beginning of time till the end of time” quite simply because the rights in question (a) could not have existed since “the beginning of time” and (b) since the “beginning of time” is itself a vague term which cannot be defined.

The story, however, changes when one considers defining the territory applicable to a contract. A grant of rights throughout the world would probably not include rights in outer space, for example. And merely removing the word “worldwide” by possibly stating that “rights are granted without territorial limitation” may not suffice. After all, would “territorial limitation” pertain specifically to the Earth or would it encompass extra-terrestrial rights as well? Would the words “terrestrial” and “territorial” come to have completely different meanings at law? Further, would “without territorial limitation” refer to solid bodies alone and not apply to, well, outer space, or, possibly gaseous planets? And if one were to attempt to overcome this possible lacuna by using a phrase such as “all over the Earth and in space”, would that mean that the rights granted in a contract could not be exercised on Neptune because it may not technically be “space” since it is an “ice giant”?

A lawyer who suspected that these were issues which could cause litigation in future, would probably do well to define the territory as “the Universe”. However, considering that we’re probably nowhere near conducting inter-galactic commerce, or even inter-planetary commerce within our own solar system, it would probably not be necessary to define a contractual territory so broadly. That being said, today, there are often situations in which parties to contracts find themselves embroiled in disputes because contracts which they signed thirty years ago did not take into consideration the development of the Internet or the creation of a number of “new” methods to exploit various rights such as exploitation through DVDs with reference to the copyright in Films. When it comes to IP contracts, it is now almost standard practice to say that the rights granted “may be exploited using any technology currently known or developed in the future”.

Talking about the Universe does nothing beyond taking into account massive technological advances that could affect the territory in which rights may be exploited; the possibility of there being human settlements on the far side of the moon in less than a century’s time may not be nil. After all, scientists already seem to have found water on the moon. And there are debates beginning to emerge about whether the resources on the moon can be exploited by any country — the Treaty of the Moon has been ratified by less than two dozen States, and none is those countries is really into exploring space. As such, it isn’t the most effective treaty which has ever been signed.

Perhaps using terms which now seem futuristic isn’t about Paranoia but about Prudence. Who knows? Just maybe, the world (?) portrayed in Star Trek will be reality in the not too distant future.

“Parallel Dimensions”

Although futuristic grants of rights may seem unrealistic in the real world, they may not be futuristic in virtual worlds which are developing. However, quite apart from the fact that life as portrayed in Star Trek may be lived in a cyberworld where seemingly absurd questions about territoriality could be made to apply, another interesting aspect to the issue is whether a standard grant of rights throughout the world or even a grant or rights not subject to real-world terrestrial limitations would extend to the grant of rights in a virtual context.

Of course, one important issue which arises, and which would have to be answered before a grant of rights within a cyber world is considered at all, is whether a cyber world is a place or territory to which Section 19(6) of the Copyright Act would.apply. One view is that a cyber world is not a “place”  at all but that it is a medium as it is entirely composed of electronic signals. As such, whether or not the scope of the grant of rights extends to a cyber world would primarily depend on the technologies through which the rights granted were permitted to be exploited.

Thus far, there has been no Indian case law on the subject, and as such, which interpretation of possible contractual terms would prove to be legally tenable is an issue which is up for debate.

(This post builds on a previous post by Nandita Saikia published at LawMatters.in on 11/20/09.)

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