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Preliminary Issues involved in exploiting "Cultural Art"

The copyright framework is different from the frameworks of other intellectual property rights such as that of patents as far as the existence of “simultaneous rights” are concerned. If two people, by some miracle, were to create identical works protectable by copyright in circumstances which would ordinarily make each of them the copyright owners of the works they had created, each of them would own the copyright in their own work. As such, this would result in there being two copyright owners of identical content.

The situation, however, may be slightly different with regard to cultural legacies such as “cultural art” which forms a part of our heritage, and is firmly in the public domain — for example, designs used in Madhubani art which have been passed down from generation to generation. Very often, the designs themselves may be in the public domain, and may therefore not be protectable by copyright individually. However, even if it was to transpire that this was the case, it is possible that it would be necessary to find some form of proof that the design was in fact in the public domain — whether that proof were to be in the form of the design appearing in an old book in the public domain, or in some other form. The reason obtaining such proof may be advisable, particularly in the case of unusual designs, is that there may be little standing in the way of a person claiming that they had created the relevant design earlier, that the subsequent work infringed the copyright subsisting in it.

Merely because a form of art is traditional, it does not mean that the whole art form falls beyond the purview of copyright protection. For example, Warli art is not “uncopyrightable” and if an artist were to paint a canvas using the kind of figures represented in Warli art, that artist would almost undoubtedly be entitled to copyright in his art. While such an artist may not be able to prevent other persons from using similar figures in their own canvases, unless, of course, they were effectively reproducing or adapting his copyrighted work, this would not negate his own rights vis-à-vis his own work.

In cases where cultural art was used/created, it is possible that defences such as “independent creation” could be used to fight against allegations of infringement. Whether or not such defences would be successful is, however, not guaranteed as the issue of infringement would be determined on a case-by-case basis. As such, wherever possible, it may be prudent for a licence to be obtained to ensure that there are no legal impediments to one’s use of a work which has been created/expressed/made publicly available earlier than one’s own, particularly in those cases where one knows that there is someone who claims to own the copyright in the earlier work.

The issue of copyright claims and notices is, however, an interesting one, and persons sometimes state that they own the copyright in far more than they are reasonably or legally entitled to. As such, a mere claim or notice of copyright may not by and of itself indicate that the work in respect of which it is applied is actually protected by copyright. It may, nonetheless, indicate that the person claiming copyright would be willing to pursue legal action against persons it deems to have infringed “its” copyright. This is generally a factor which should be taken into account considering that fighting allegations of copyright infringement can involve the investment of significant resources both in terms of time and money.

And one final twist to the story is that even if individual art-designs are entirely in the public domain, if someone has compiled a collection of them, copying the entire collection could conceivably infringe the copyright in the collection. Such copyrights are often referred to as “compilation copyrights”, and even though they are not referred to in the Indian copyright statute, they are relatively widely recognised.

As such, exploiting the copyright in “cultural artworks” is not an exercise which is entirely risk-free, to say the least.

(This post is by Nandita Saikia and was first published at Indian Copyright.)