The garden, closed off though it generally is, reflects the world to which it belongs. This piece, written from a place of disenchantment, considers the structure of gardens, and attempts to explore, through law and literature, the manner in which the law has a tendency to prioritise the protection of that which is attributable to the socially privileged.
v1.2 9 MARCH 2025
The garden is often an escape into a liminal world between the quotidian and the fantastic, the ornamental and the productive. It is a world in which it is difficult not to find beauty but in which beauty, even when it is naught but artifice, is not necessarily considered to be art in any sense that copyright law would recognise despite the fact that, to be a garden, the space in which it exists must have been influenced by human skill, creativity, and vision.
The Remains of the Past
The gardens of our imaginations stretch the spectrum from luxuriant, barely contained wildness to nature severely constrained. Whichever way one looks at them, plants are ordinarily vital to their existence; other elements tend to be secondary but what we see of ancient gardens often forces us to invert our perceptions of what makes a garden.
For the most part, ancient gardens no longer live although some have been revived. We can't always be certain of what was planted there although, going by what appear to be the remains of flower beds, we can be reasonably certain that there were plants.
We can also be reasonably certain that ancient gardens were not haphazard dumping grounds for plants and bric-a-brac. We see architectural features, functional structures, and both movable and immovable art, with each category blending into the other, and all of them tending to blend into each other to form a coherent whole.
Excavations at Pompeii have revealed peristyles, colonnaded gardens (sometimes with pergolas in them too) in 252 homes, which contain, amongst other components, low walls or plutei; aediculae, altars, and podia which could have been used to display sculptures or idols; murals and mosaics; fountains and a range of contrivances to store and syphon water including pools (in which there may sometimes have been fish), cisterns, basins, gutters, and drainage channels; sundials (with questionable accuracy perhaps because their presence was more performative than functional) and storage containers: dolia and amphorae.
We can only speculate on the uses to which ancient gardens were put: the presence of lararia, shrines to guardian deities and tutelary spirits, signify the conduct of ritual and religious activity in gardens while triclinia, seating arrangements around three sides of a table, indicate the use of gardens to dine; fountains might signify the use of gardens as status symbols while the abundance of storage containers in some gardens could perhaps indicate that those gardens were meant to be more functional than recreational, and that they were commercial centres. It is unlikely that categories would have been watertight though.
The elements of ancient gardens did not simply disappear from the world; if not anything else, the peristyles of Roman villas were often transformed into the cloisters of mediæval monasteries not least because it wasn't unusual for monks to live in structures which had once been villas.
Contemporary gardens often seem to contain permutations and combinations of the features of the gardens of the ancient world. Although there have been times when it became fashionable to have gardens aggressively stylise nature, horti conclusi and other enclosed gardens dating back to the mediæval world and beyond, have lived on well into contemporary times — they cannot possibly be called facsimiles of nature untamed.
What the Law Protects
The garden itself consolidates disparate elements: it is invariably a verdant, living, organised space possibly containing legally protectable components all of which coalesce in space and in time to make the garden what it is.
Art and Architecture
The inanimate features of gardens can potentially be or encompass art recognised by copyright law as either architectural works or artistic works, or perhaps even designs which could, in some cases, be protected by design law. Some of the functional apparatus of gardens could also well be protected by other forms of intellectual property rights including patents: composting apparatus has sometimes been protected by patent rights, for example.
Stripped bare of its flora, what remains of the garden is a material world not entirely inanimate: earth, landscape, art, and architecture. Earth, by itself, is not protectable but fertilizers used to enhance it may be patentable or protected as trade secrets. Landscape, to the extent that it is shaped by human creativity, may be copyrightable and so too may artworks and the artistic design of architectural features be protected although it would seem that gardens combine what we would now lean towards protecting as ‘design’ (if at all) and what we would now consider art, copyrightable or not.
While the average grotto or fountain is unlikely to merit copyright protection unless it is artistic, for example, the images and sculptures it contains could well merit legal protection assuming, of course, that they had not been made by having raw materials be poured into mundane, workaday moulds.
The moulds themselves could potentially be protectable, either directly or indirectly, if the works they were used to create met the threshold of copyrightability — sculptures which moulds may be used to create are potentially copyrightable as artistic works as are, in some cases, the moulds themselves as works of artistic craftsmanship. However, in light of Section 15 of the 1957 Copyright Act, if otherwise copyrightable sculptures were legally mass produced (more than 50 times using an industrial process) — garden gnomes come to mind, here — they would likely need to be registered as designs under the 2000 Designs Act to continue enjoying legal protection.
Whether or not moulds are artistic, their use to reproduce copies of works makes them ‘plates’ in the eyes of copyright law, and plates used or intended to be used to make infringing copies of works usually belong to those who own the copyright in the works they can be used to reproduce although, if the owners and the creators of those works differ, the creators may have a limited right to use, without authorisation from the owners, moulds they themselves have made for the purpose of the protected works. In so using moulds, the law, however, prohibits creators from repeating or imitating the main design of the works for which they were made per Sections 2(c), 2(t), 58 of the 1957 Copyright Act.
Similar analyses can be applied to virtually every component of a garden, and it is possible to strategically design gardens to ensure that the law protects them to the highest degree possible by having their components cross the statutory thresholds beyond which legal protections, such as the various forms of intellectual property rights, apply.
Protected Flora
Varieties of plants, too, can sometimes be protected under sui generis laws or, depending on the jurisdiction in which they find themselves, patents. In India, methods of horticulture, essentially biological processes for the production or propagation of plants, and plants (including seeds, varieties and species) other than micro-organisms cannot be patented per Sections 3(j) and (h) of the 1970 Patents Act but, in compliance with Article 27(3)(b) of Part II the TRIPS Agreement, a sui generis law brings varieties of plants within the scope of intellectual property protection in the country.
The 2001 Protection of Plant Varieties and Farmers’ Rights Act grants a dual registration: it registers both varieties themselves and their names. To be registrable, per Section 15 of the statute, varieties must be distinctive, uniform, stable and, in the case of new varieties, novel. Further, new varieties cannot be registered if their names consist solely of figures, are confusing or misleading, hurt religious sentiments, are prohibited for use by the 1950 Emblems and Names (Prevention of Improper Use) Act, or dishonestly include geographical names.
The Act defines a ‘variety’ in Section 2(za) as a plant grouping ‘within a single botanical taxon of the lowest known rank’, other than a microorganism, which, in essence, is an identifiable, stable unit suitable for propagation and distinguishable from other plant groupings), and describes what can be protected in Sections 2(j), 2(m), 14, 23, and 29(2).
Under the law, extant varieties including farmers’ varieties (essentially meaning those which are commonly known, which belong to the public domain, which have been notified under Section 5 of the 1966 Seeds Act, or which have been ‘traditionally cultivated and evolved by the farmers in their fields’) as well as other varieties belonging to genera and species notified by the Central Government in the Official Gazette and varieties of varieties (known as ‘essentially derived varieties’) can potentially be registered and legally protected.
The Architectonics of Gardens
The extent of human influence in bringing a garden to life is debatable, and that debate, steeped in class prejudice we know, divine genius we believe in, and natural fecundity we rely on, lies at the heart of how the law offers to protect gardens.
If we were to consider the elements of gardens, what we would find is that those which are believed to derive entirely from God's bounty or to arise in consequence of natural processes are not protected by the law while those which a human hand has clearly had a dominant role in shaping tend to be more easily protected by the law even if human intervention simply creates a facsimile of the natural. But, even here, there are differences in how the law treats both work and works in a garden.
‘Merely’ gardening and deciding where to plant what would not ordinarily result in the creation of legally protectable works if the task was accomplished by gardeners working the soil, no matter how skilled they might be.
The layout of many gardens is fairly conventional — traditional by contemporary standards. For example, we know what to expect of the layout of a Mughal charbagh garden; significant innovation would almost certainly destroy the character of the garden. The adherence to tradition, however, also all but extinguishes any chance of the design of a traditional garden becoming copyrightable.
Gardeners not only face the question of whether or not their works, including arrangements of plants, are original but also of whether the fruits of their labour are in fact more natural than man-made.
However, if the plans for an unconventional garden or park were drawn up by a landscaper, those plans could potentially be protected by copyright law as artistic works particularly if they included architectural features and, in all likelihood, the gardens or parks based on them would also, at least obliquely, receive a degree of legal protection even if not directly as artistic works which, under the law, include architectural works—a possibility which, too, remains open.
This approach is not entirely surprising given that much early landscaping involved literally reshaping land and adding architectural features to it, going so far as to dam rivers and move entire villages, to develop vistas, over the course of decades, which appeared natural from the vantage of stately homes but were, in fact, anything but natural.
The differential treatment accorded to landscapers and gardeners by the law creates a chasm between those who work to bring gardens into being, and those who ‘merely’ design gardens. It is analogous to the way in which the law tends to protect the work of artists but is less than enthusiastic about protecting works of craftsmen even though the line between the two is blurred.
Mosaic designs on pathways in repetitive patterns, for example, are unlikely to be considered to be works of art in the way that images seen and meant to be enjoyed from the vantage of seating arrangements in a garden would probably be even though the former may require considerable skill to lay.
Section 2(c)(iii) of the 1957 Copyright Act does explicitly allow works of artistic craftsmanship to be legally protected. However, the ‘problem’ as copyright law sees it is that works of craftsmanship are less likely than other artistic works to meet the threshold of copyrightability, which, amongst other criteria, requires artistic works to be original to be copyrightable.
When it comes to plants, however, the law adopts a fairly liberal approach. It does not limit the kinds of plant varieties which can be protected, and over a dozen flowers have been registered in India itself. The contemporary willingness of the law to recognise and protect plant varieties is a far cry from the way in which early man-made plant varieties were perceived.
In the summer of 1716, in England, Thomas Fairchild drew the tip of a feather across the stamen of a Sweet William and then brushed the stigma of a carnation with it. The following Spring, he saw that his act had led to the creation of a hybrid: the Fairchild Mule, the world's first known man-made hybrid. Its very existence seemed to fly in the face of Christian religious teaching which asserted that all plants had been created by God on the third day of creation.
“These are the generations of the heavens and of the earth when they were created, in the day that the LORD God made the earth and the heavens, And every plant of the field before it was in the earth, and every herb of the field before it grew: for the LORD God had not caused it to rain upon the earth, and there was not a man to till the ground. But there went up a mist from the earth, and watered the whole face of the ground.” (Genesis 2:4–6)
Unsurprisingly, although the first modern copyright statute had recently been enacted in 1709, the legal protection of plants was not envisaged at the time.
When Fairchild was invited to present a dried specimen of his hybrid at a meeting of the Royal Society in 1720, likely fearful of having committed blasphemy, he took the safe path and claimed that the Fairchild Mule, which incidentally proved the theory of the sexual reproduction of plants, had come into being in consequence of the Sweet William and carnation growing so close to each other that they pollinated each other by accident, leaving him to ‘find’ the hybrid in his nursery.
Fairchild seems to have been a religious man, who believed in God being the divine architect. In his day, turf and topiary were the highlight of English gardens which were startlingly bare for much of each year. And, so, his deliberate creation of a hybrid exponentially increased planting options for gardens although there was also, at the time, a deep unease with change wrought not just by human intervention but also by the importation of ‘exotics’ which were all the rage.
In the The Mower against Gardens published during Fairchild’s lifetime, Milton's friend, Andrew Marvell, wrote: “Luxurious man, to bring his vice in use, / Did after him the world seduce, [....] With strange perfumes he did the roses taint, / And flowers themselves were taught to paint. [....] Another world was searched, through oceans new, / To find the Marvel of Peru. / And yet these rarities might be allowed / To man, that sovereign thing and proud, / Had he not dealt between the bark and tree, / Forbidden mixtures there to see.”
Fairchild himself bequeathed the sum of £25 to the Trustees of the Charity Children of Hoxton, the Churchwardens of the Parish of St Leonard, Shoreditch, and the successors of each to preach ‘annually for ever’ what has come to be nicknamed the ‘Vegetable Sermon’ — “a prophylactic measure in case he had provoked God's scorn,” as Andrea Wulf describes it. He specified two possible subjects for the sermon: ‘The Wonderful Works of God in the Creation’ and ‘The Certainty of the Resurrection of the Dead, proved by the certain changes of the animal and vegetable parts of the Creation’.
Living in a world awash with plant varieties, not to mention genetically modified crops, it is now difficult to imagine one which treated hybrids with reticence bordering on fear. But, perhaps, that, too, is not inexplicable.
A Simulacrum of the World
The human world was once apparently a garden, lush and wondrous. That garden, Eden, was lost to humans and ever since, countless efforts have been made to regain it through literature and in life.
Dante animates what he imagines of Eden in Canto XXVIII of Purgatorio; his words, translated by Allen Mandelbaum read: “Now keen to search within [....] / that forest—dense, alive with green, divine— / which tempered the new day before my eyes, // without delay, I [....] took the plain [....] / across the ground where every part was fragrant. // A gentle breeze, which did not seem to vary / within itself, was striking at my brow / but with no greater force than a kind wind's, // a wind that made the trembling boughs—they all bent eagerly—incline [....] // but they were not deflected with such force / as to disturb the little birds upon / the branches in the practice of their arts; // for to the leaves, with song, birds welcomed those first hours of the morning joyously, / and leaves supplied the burden to their rhymes [....] I came upon a stream [....] // All of the purest waters here on earth, / when matched against that stream, would seem to be / touched by impurity…”
Eden was Milton’s paradise too. He wrote his masterpiece Paradise Lost after having defended the execution of Charles I. By the time he had begun writing, the republic (in England) was stumbling; it would not be long before Charles II returned, and the monarchy was restored. Times were uncertain not least for Milton himself; it was not clear if he would be executed for treason but he escaped that fate, possibly on account of the intercession of his friend Andrew Marvell. In any case, his paradise, metalepsis articulating portals between the world of his text and the world in which he found himself, examined modes of governance and futures after failure. His garden was, in some ways, the state.
The nation state is, however, not easy to remould although, following in the footsteps of Utopia by Thomas More which was first published in 1516 in Latin, there have been many attempts to reimagine it as a more equitable world. Almost every vision of Utopia has featured gardens in fact, through parable, or as metaphor although, in literature, as in life, human-beings have been remarkably resistant to realising a society which might be Utopian.
“Let but the famine-stricken nation assume the function it had neglected, and regulate for the common good the course of the life-giving stream, and the earth would bloom like one garden, and none of its children lack any good thing,” Edward Bellamy wrote in his time-travel novel Looking Backward: 2000 to 1887 which was first published in 1888. Its protagonist argued against capitalism only to find, when he expressed his ideas to a group of well-to-do people, that: “Instead of enthusiasm, the ladies showed only aversion and dread, while the men interrupted me with shouts of reprobation and contempt. [....] It seemed to me that my heart would burst with the anguish of finding that what was to me so plain and so all important was to them meaningless, and that I was powerless to make it other.”
Powerlessness to effect change is an old theme: Thomas More himself vociferously argued against the enclosure of land which dispossessed the many (often substituting them with multitudes of sheep) to cater to the greed of the few, leaving them vulnerable to be hanged when they (almost inevitably) stole food to survive. In doing so, he was also scathing when he spoke of the rich who sacrificed people for profits in the wool trade.
“And by this means very many be forced to forsake work and to give themselves to idleness,” a revision of Ralph Robinson’s 1556 translation of Utopia by Susan Bruce reads, continuing in its attack on enclosure: “For after that so much ground was enclosed for pasture an infinite multitude of sheep died of the rot, such vengeance God took of their inordinate and insatiable covetousness, sending among the sheep that pestiferous murrain, which much more justly should have fallen on the sheepmasters’ own heads.”
More was executed in 1535, not because of his words against inclosures although, as Vybarr Cregan-Reid put it: “Perhaps sealing his fate, More openly criticised the ongoing practise of enclosure, the usurpation of productive land from the peasantry for the benefit of the royal state.” The practice itself was not so much as dented by More’s advocacy against it.
On the contrary, enclosure was supplemented by emparkment, not just to fence off land to hunt but also, in time, to create picturesque views of land artificially contorted to mimic an idealised natural state. The process of emparkment which the rich engaged in not only tended to dispossess poor people locally but also to exploit poor people elsewhere; much emparkment in England was financed by the proceeds of slavery and plantations in the new world, for example.
Emparkment did not restrict itself to stately homes in the English countryside either: in India, the grounds around monuments were occasionally cleared of poor people for reasons which are unlikely to have been anything but supposedly aesthetic. It is said, for instance, that in the early 1900s, an entire village was shifted out of the grounds of Humanyun’s tomb in Delhi although it isn't clear where it was shifted.
Instead of having the garden be the human world, the garden came to be a microcosm of the supposedly civilised world, reflecting, for better and for worse, its predispositions in seeking to create beauty and order, often without the slightest reference to the human cost involved in the enterprise and with the latter brought into being not just by secateurs but also by laws drafted by the privileged and the powerful, as all laws always are.
Elements of gardens have come to be legally protected and, if one were ever required to determine which ones could be protected, the rare exception aside, one would only need to ask if the answer to: ‘Who benefits from protection?’ was: ‘Someone high up on the socio-economic ladder.’ That is the world we have created, the one we seemingly refuse to re-create.
Note: This piece by Nandita Saikia was first published at lawmatters.in. References to statutes are references to Indian statutes. In writing this piece, amongst other sources, information about gardens was gleaned from: The Brother Gardeners: Botany, Empire and the Birth of an Obsession by Andrea Wulf (Windmill Books, 2009); Cutting Back: My Apprenticeship in the Gardens of Kyoto by Leslie Buck (Timber Press, 2017); Capability Brown, Royal Gardener: The Business of Place-Making in Northern Europe edited by Jonathan Finch & Jan Woudstra (White Rose University Press, 2020); The Doctor’s Garden: Medicine, Science, and Horticulture in Britain by Clare Hickman (Yale University Press, 2021); Pompeian Peristyle Gardens by Samuli Simelius (Routledge, 2022); Why Women Grow by Alice Vincent (Canongate Books, 2023); The Garden Against Time by Olivia Laing (Picador, 2024).