ARCHITECTURAL DESIGN

“Architectural design” is the art and science of designing buildings and other non-building structures. It requires skill and ingenuity and is the result of creativity, talent and hard work painstakingly built and acquired over several years. Recently, there has been a constant growth in the field of architectural design. Each architectural nuance represents a diverse historical era.

Winston Churchill said “We shape our buildings; thereafter they shape us...” Thus, there is a great need for protection of skill and proficiency which results in the creation of varied unique architectural designs. If an infringement of architectural works is concerned with, it is important to understand about the protection of works when they are reproduced, distributed, performed, publicly displayed, or turned into a derivative work without the authorization of the owner.

FREEDOM OF PANORAMA

"Freedom of Panorama" is an exception to the provisions of the Copyright Act, 1957. The term is explicitly incorporated in the Act but Section 52 of the Copyright Act expounds similar meaning to the term and lays down a list of acts which do not lead to copyright infringement.  Section 52 states that:

• Paintings, engravings, drawings or display of architectural work, photograph of a work of architecture can be created or published. This is contained in section 52 (1)(s).
• The making and publishing of a painting, drawing, photograph of a sculpture, engravings etc when such work is situated in a public place permanently.
• Any other artistic work which is permanently situated in a public place or at a place which is accessible to general public is included in a cinematograph film.

It is in this regard that the Indian Copyright Law is acknowledged as it is not subject to the demarcations as in the European and American copyright law which allows this freedom only if the copyrighted work is used for educational or non-commercial purposes.

PROTECTION UNDER THE AMBIT OF COPYRIGHT ACT

Generally, any original work made by a person is eligible for protection under copyright. Originality here means that an author must have created the work through the application of the author's own creativity and labour. Also, such work must have been reduced to a material form. Copyright comes into existence the movement a work is created and no formality is required for acquiring copyright, although it is advised that the author/owner of the copyright gets their work registered to make sure they can enforce the rights conferred by the Copyright Law in case of infringement.

Indian law provides protection to the architectural works under the Copyright law. According to Section 2(b) of Copyright act 1957, work of architecture is defined as any building or structure which has an artistic character or design, or any other model for such building or structure. In India, architects can register their original architectural works under the Copyright Registration system.

Since India is signatory to Berne Convention as well as Universal Copyright Convention, therefore the works which are protected in other Berne signatory countries will automatically be protected in India without the need for registration. Section 57 of the Indian Copyright Act also foresees the moral rights of the creator of the artistic work and the rights of integrity and attribution of the author.

The protection under the Indian Copyright Law covers the architectural design of commercial buildings under it. Section 13 of the Copyright Act, 1957 extends the protection under copyright to “artistic works” which specifically includes “work of architecture” as per Section 2(c)(ii). The Act also spells the doctrine of “fair use” and lists the acts which do not amount to copyright infringement of works of architecture. It is enlisted in Section 52 (s) and Section 52 (u) of the Act.

Section 59 of the Copyright Act imposes restriction on remedies in case of “works of architecture” and  states that if construction of a building or other structure, when completed, if infringes the copyright in some other work which has commenced, the owner of the copyright shall not be permitted to obtain an injunction to restrain the construction of such building or structure or order its demolition. The owner of the copyrighted building can claim damages and the remedy to criminal prosecution will be available to him. However, he cannot claim specific relief.

The term of copyright for such work of architecture is 60 years from the calendar year, following the year in which the creator dies. Thus, even though the copyright law is stringent, it does not offer extensive protection to architectural works. It is thus always advisable for architects to file for copyright protection to make a prima facie case of infringement.

In addition to copyright protection, the owner of the architectural work should also apply for a trade mark registration of the architectural design of the building, in order to make an arguable  case in the event of commercial exploitation of the original design in relation to the goods and/or services for which it is registered. Trademark registration provides protection in perpetuity, if renewed every 10 years.

WHAT IS COPYRIGHT LAW? WHAT ARE THE ADVANTAGES OF COPYRIGHT REGISTRATION IN INDIA? TO KNOW MORE, VISIT - 

CONCLUSION

Recently, Bangladesh build a replica of India’s Taj Mahal - Banglar Taj Mahal. The construction began in 2003, but Ahsan Ullah Moni has expressed that the idea popped up in 1980 when he first visited the Taj in Agra, India. India had objected this construction on the grounds that the fake Taj in Bangladesh is a copyright violation of the Taj Mahal at Agra, and that it would reduce Indian tourist traffic and profits. However, it was noted that copyright law would not be applicable in this case as firstly, there was no copyright law at the time when the Taj Mahal was built, and therefore all work would be in the public domain. Secondly, the original Taj was completed over 350 years ago. Even if the structure was imagined to be built on the basis of engineering drawings, the term of copyright has long expired.

Although significant terms of protection are afforded by copyright law yet it is insufficient for historic and culturally significant sites like the Taj. Copyright is meant to encourage the dissemination of ideas, as well as promote the creation and restricting the entry of sites like the Taj into the public domain might further this by encouraging the creation of new ideas, and equally formidable, yet different works of art leading to the making of several more wonders of the world. Even though a replica is legally permissible, should it be allowed is still a lingering question.

BY- SHRIJA VERMA