Being a common law country, copyright law in India is substantively similar to copyright law in the UK. The development of doctrinal principles through judicial interpretation has also been influenced by cases in the UK since the courts in India regularly refer to UK judgments.

India is also a signatory or the Berne convention and the Trips agreement, and rights of foreign artists are automatically recognised in India. There is no prerequisite for registering your work, and enforcement of copyright in India is not dependent on registration.

If one were to compare the basic doctrines of copyright law, namely the definition of artistic works, criteria for grant of copyright, authorship and ownership of the work, nature of rights and obligations that accrue form the ownership of copyright, you will find that there are no differences between UK law and Indian law. An artist from the UK familiar with copyright law should find himself to be very comfortable with copyright law in India. The difference would perhaps lie more in the specific language of the statutes, but the core principles remain the same. One difference between the two countries lies in the term of copyright. In India the term of copyright for artistic works is life of the author plus sixty years, which is ten years less than in the UK.

For instance like the copyright act in the UK, the definition of an ‘artistic work' in Indian law is an inclusive definition, and you can see the substantial similarity in the two laws if you compare the definition of artistic work.

s.4(1) of the U.K. Copyright, Designs and Patents Act defines ‘‘artistic work'' as -
(a) a graphic work, photograph, sculpture or collage, irrespective of artistic
quality,
(b) a work of architecture being a building or a model for a building, or
(c) a work of artistic craftsmanship.

Section 2(c) of the Copyright Act in India reads as follows

(c) "Artistic work" means-
(i) A painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;
(ii) An architectural work of art; and
(iii) Any other work of artistic craftsmanship;

As you can see, the definitions are substantively similar, and are both decidedly modernist definitions. Like the UK, the definition in India poses a challenge to contemporary artistic practice, especially installations, performance art and mixed media works. Like the law in the UK, the author of a work is the first owner of copyright in India. The exceptions for this include works which have been done in the course of employment or commissioned works.

There have been two substantive amendments to the copyright act in India (in 1994 and 1999 ), and the law is currently going through another round of substantive amendments to address technological developments that have taken place post the internet.

A significant provision that was introduced in the 1994 amendment, which is important for artists, is the introduction of the principle of Droite de suite or the resale rights for artists. In the case of resale for a price exceeding ten thousand rupees, of the original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work, the author of such work if he was the first owner of rights under section 17 or his legal heirs shall, notwithstanding any assignment of copyright in such work, have a right to share in the resale price of such original copy or manuscript in accordance with the provisions of this section:

The provision says that the share shall not exceed ten percent of the resale price, and also provides for the Copyright Board to fix different shares for different classes of work. It is unfortunate that the Copyright Board is yet to fix the percentage for different classes of works.

It is important to note that the section is only applicable where the artist was the original owner of the work. In other words, it will not be applicable to works that have been specifically commissioned. It is also clear that the intention of the section is for the right to be inalienable since it survives even if the work has been assigned. In that sense it is akin to the moral rights of an author or the special rights (right to be identified and right against distortion of the work), which cannot be alienated by a contract.

An important case in recent times in India was Amar Nath Sehgal v. Union of India which was a case about the moral rights of an artist. Section 57 of the Copyright Act recognizes the right of paternity (the right to be identified as the author) and the right of integrity ( the right against the distortion of the work). In this case Sehgal, a well known muralist had been commissioned to paint a mural on the walls of the Indian parliament. This wall was subsequently destroyed, thereby damaging the mural. Sehgal sued the government, and the courts awarded him damages of $12,000, a significant amount given that the jurisprudence of damages in India has generally been on the conservative side.

Artists from the UK coming to India should have no problem understanding the copyright system in India, and there are a number of law firms who can also assist them in the case of any dispute or if there is advice needed for any transaction. While there are no firms who specialize only in representing artists, there are general boutique IP law firms which are more than qualified to represent artists in the case of any disputes.

Article by Lawrence Liang

• copyright
• working internationally
• legal
• law
• India