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Access to Cultural Heritage and Exceptions to Copyright Infringement

At a recent lecture at the National Museum, a friend and I talked about how absurd it is that so much of what should ideally be our common cultural heritage is locked up behind closed doors, inaccessible to the public. This museum though does better than many others: it allows visitors to take photographs of its exhibits.

Indian copyright law isn’t absolutely clear about the copyrightability of published photographs of public domain works especially when the photographs focus on the works (as opposed to, for example, their being incidentally in the background) and the works are in private hands. The question is: Does copyright subsist in such photographs at all, or would they effectively be in the public domain by reason of copyright doctrines such as those of scènes à faire or merger? These two doctrines complement each other: the scènes à faire doctrine states, in essence, that if a particular device is so common to a particular genre of works that it is unavoidable, it cannot be copyrighted and no monopoly right can subsist in it. The merger doctrine, on the other hand, (more pertinently to the issue) says that if there is only one way to express an idea, the expression of the idea (embodied in a work, and thus the work itself) becomes uncopyrightable (primarily because no other expression of that idea is possible, and ideas per se are not copyrightable).

Courts across jurisdictions have, at various times, come to vastly different conclusions regarding the copyrightability of photographs of works in the public domain. Focussing on the basics though, the Indian Copyright Act protects original works (such as books, art and sculpture) by granting their owners a monopoly right to exploit the copyright in those works for a limited period of time upon their publication. (The term of copyright in an unpublished work appears to be infinite, and the owners of the copyright in works are generally their authors although this is subject to several exceptions which become most apparent when authors are either employed or commissioned to create works.)

The monopoly right which is granted by the Copyright Act is, however, by no means an absolute right. It is subject to several explicit caveats, most of which are listed in Section 52 of the statute. This Section contains ‘exceptions to copyright infringement’, and enumerates various circumstances in which protected works (and, in some cases, their adaptations and translations) can be used without the consent of the owners of the copyright in those works. It is not a ‘fair use’ provision akin to the ‘fair use’ referred to in US law; in many ways it is much narrower given that it is fairly detailed about precisely which works can be used by whom and for what purposes, and given that an argument could be made that nothing which falls outside the explicit scope of the Section can be read into it. That said, there is also an argument to be made that it is ‘better’ than ‘fair use’ as specific exceptions to copyright infringement provide far more certainty about what would not be treated as infringement than the ‘four factor test’ which the US statute references: namely, that an assessment as to the fairness (and, thus permissibility of unauthorised use of works) is to be made with reference to (i) the purpose and character of the use, (ii) the nature of the work, (iii) the amount of the work used, and (iv) the effect of the use upon the potential market for or value of the copyrighted work.

Comparisons of statutes aside, what is clear is that public policy objectives underlie Section 52 of the Copyright Act; the exceptions to infringement attempt to ensure that monopoly claims to the ownership of works do not impede such things as education, access to justice, cultural activity, and dissent (making it far more difficult to use copyright as a censorship tool). The range of the exceptions was significantly broadened through a 2012 amendment to the Copyright Act (except in one unfortunate case), although that is another story.

In the case of cultural activities, setting aside critical amendments to the law which now facilitate the access of persons with disabilities to copyrighted works and allow fair dealing with any work except software (as opposed to only with literary, dramatic, musical and artistic works except software as was the case earlier), the exceptions to copyright infringement in relation to cultural activities saw no significant change beyond an allowance for the making of cover versions being mutated into a separate a statutory licence.

With reference to images, the 2012 amendment did not affect a provision in the Copyright Act which allows for the making or publishing of a painting, drawing, engraving, or photograph of a sculpture, or other work of artistic craftsmanship if the work is permanently situated in a public place or at any premises to which the public has access. The provision clearly limits the rights owners from making monopolistic claims beyond a point and provides a foundation for as good a definition as any of ‘public art’ — An artistic work permanently situated in a public place or at any premises to which the public has access is public art.

Further, the Copyright Act did and continues to treat as an exception to copyright infringement the inclusion of public art into a film/video even if, it would appear, the art is the focus of the film. In the case of non-public art though, the inclusion of the art in a film would be treated as an exception to copyright infringement only if it were by way of background inclusion or in a manner incidental to the principal matters represented in the film.

What is interesting about the provisions relating to cultural heritage is that they may apply not just to copyrighted works but also to works which are in the public domain and are not governed by copyright, (in at least one case) possibly to ensure that copyright claims are not made to defeat access by the public to public domain works. For example, films whose term of copyright has expired can be exhibited presumably even if the copyright in the literary, dramatic, musical or artistic works recorded or reproduced in them has not expired although the works must (in some cases) be identified by their title or description, and author (which is fair enough, especially since the special right of authors to be credited is perpetual).

Even more interesting is a provision which treats as an exception to copyright infringement ‘the reproduction, for the purpose of research or private study, or with a view to publication, of an unpublished literary, dramatic or musical work[s] kept in a library, museum or other institution to which the public has access’. This provision, however, appears to apply to orphan works or, where the author(s) are known, to works which would have been in the public domain (by reason of the expiry of copyright had they been published during the lifetime of their authors). As such, the provision completely defeats the ‘infinite copyright’ in unpublished works although there is a loophole: should the reproduction result in posthumous publication, it appears that a copyright in the publication could arise, thus removing the work from a domain accessible to the public for sixty years from the date of publication.

Nonetheless, these provisions in the Copyright Act relating to the accessibility of tangible cultural works seem to provide the strongest indication of the public interest underpinnings of copyright law: the only possible explanation for their inclusion seems to be to ensure that the public is able to access those works which form part of our cultural heritage without being impeded by copyright claims. They are by no means comprehensive provisions, nor are they all that is required, but in the copyright maximalist times we live in, it is rather heartening to see them feature in copyright law at all.

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