This article is written by Preetish Agrawal, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.
Table of Contents
Introduction
The nationally beloved show, Kaun Banega Crorepati (KBC), recently hosted a children’s special week. This week, instead of adults, various children participated and got a chance to sit at the hot seat. While a little of the show’s format was tweaked to accommodate the same, one major change that could be seen; was that the children were competing for points, and not for money. According to the show, all the points earned by these children were converted to money and sent to their bank accounts; which they could exploit after they had turned 18. What this essentially meant, was that if a child had won 3,20,000 points; these points would be sent into his bank account, and he could use this money once he had turned 18. What struck me immediately, was the concern that the parents of these children could exploit their hard-earned money. The lack of legal machinery to stop the parents from doing the same, and the lack of a check and balance system, was truly concerning to me.
Moreover, while these children are a rare bunch who have money stored in liquid form; my concern extends to the protection of those children who create their own original work, and which is their intellectual property. India has so many child actors, young poets, writers, painters, and various other types of performers. If an erudite child today draws an exceptional portrait of a lion, is the current legal framework strong enough to ensure that he gets back the reaps of his labour? In this article, we would begin by exploring whether a child has intellectual property rights for his works in the Indian legal framework. Then, we would explore the fundamental problem with his capacity to enforce such rights; which is his incapacity to enter into contractual relations. Finally, we would link to how this incapacity throws them at the mercy of their parents; and opens them to exploitation by them.
A child’s Intellectual Property Right
The intellectual property laws in India do not draw an aged based distinction. While Section 13 of the Copyright Act [1957] is subjected to other statutory requirements, it entitles any person to obtain a copyright irrespective of its age. Not only the copyright act, but nearly all the intellectual property laws; including the Patents Act [1970], Section 18 of the Trademarks Act [1999], and Section 30 of the Designs Act [2000] allow for the same. Hence, it is quite clear that a minor is allowed to own intellectual property rights for its work.
However, the mere appointment of these rights is of no significant use for an individual. The appointment of these rights makes commercial sense, when the person holding them is given a right to exploit them. For example, Section 18, 19, and 30 of the Copyright Act [1957]; gives the holder of these rights or their agents, an option to license or assign their copyrights for their commercial exploitation. Similarly, Section 38 to 45 of the Trade Marks Act [1999]; gives provisions for trademark assignments and transmissions. It is in these steps, where the Indian legal framework fails its creative children. This failure happens at the backdrop of the Indian Contract Act [1872].
Revisiting the Intellectual Property Rights in the backdrop of the Indian Contract Act
As per Section 11 of the Indian Contract Act [1872], only those persons are competent to enter into a contract who have attained the age of majority. Now, as per the Indian Majority Act [1875], those individuals who have not attained the age of 18 years would be considered to be minors. Hence, any individual below the age of 18 years is not competent to contract; and this competency would render all the contracts entered by him to be void ab-initio. Moreover, the same has been very strictly interpreted by the apex court. In the case Mohori Bibee v. Dharmodas Ghose [1903], it was held that any contract entered by a minor cannot be administered against them. In fact, if the contract was entered into without the knowledge of the guardian/parents; compensation or performance cannot be sought even by them. Moreover, even if the minor has received a profit from the void contract, the same cannot be enforced against him in a court of law. Let us understand how this provision leaves a minor at the mercy of its guardian/parents.
As discussed before, the commercial exploitation of copyright occurs through either licensing or assignment. While assignment deals with the complete transfer of these rights to a third party, licensing refers to an allowance of exploitation of these rights to a third party. For an exchange of payment or royalty on the same, there is a need to enter into a contract. While the minor child is stored with the IPR, he cannot exploit it without entering into a contract. He also cannot appoint an agent to enter on his behalf, as he does not have the competency to enter a contract with an agent. In this case, the only scenario in which commercial exploitation of its rights is possible; is through his parents. This is because, in Mohori Bibee v. Dharmodas Ghose [1903], it was held that the parents would be accountable for the contract entered by the minor; if such a contract is entered with their consent. This places the minor in a very submissive position, where he is left with no other choice; but to involve his parents in the transaction.
Drawbacks of the dependence of minors on their parents
Placing innocent children at the mercy of their parents for commercial benefit can have dire consequences. There have been hundreds of reports all over the globe, that cite incidents of parents trying to exploit children for more and more earnings. The fruit of all their hard work, by the time these children turn 18, is also often under scrutiny; as parents in most cases exercise complete control over their children’s earnings. There have been various famous incidents, where the children have taken their parents to court; accusing them of skimming their earnings, and demanding their money back [CBS News, 2015].
What makes things worse, is when children are projected out of exercising their individual autonomy; they are forced to be bound by the decisions of their parents. In various horrific tales of child exploitation due to their rights, perhaps the worst is the case of Rubina. In 2009, Reuters reported how the father of Rubina, the child star from the Academy Award-Winning film Slumdog Millionaire, tried to sell her for 200,000 pounds [Jamkhandikar, 2009]. This incident is a potent example of how parents commercially exploiting the copyright of their children can lead to dire consequences.
The road ahead for Indian laws
Section 2, 10, and 11 of the Indian Contract Act [1872] needs to be amended in such a manner, that it brings within its purview the rights of children in the cases of IPR’s. While some amount of restraint can be exercised while drafting these provisions, keeping in mind the naivety of the children; what these amendments would excessively do is give the children an option to move out to other sources for commercial exploitation of their rights. This would also act as deterrence for various parents, as they would be aware that there are foreign options for their children to explore. There can also be separate legislation, that could be explicitly drafted for the enforcement of these rights of children. Moreover, a rule could be brought into enforcement; that would ensure that the money earned by these children is reserved for them by the time they turn 18. There are also various cases where the parents worked as the agents for their children, and withdrew substantial parts of their earnings in the nomenclature of salary. There is a dire need for these issues to be properly addressed in the form of competent legislation.
Conclusion
The number of children owning different types of IPR’s is higher than we imagine. Child actors, painters, poets, writers, and many more artists; are prodigies of their times. If the Indian laws fail to protect these prodigies from being exploited and misused, a fair share of their talent could go into vain. If a child can doodle an exceptional sketch of a lion, he should himself be given the legal competency to exploit his own work. If not this, then at least he should be given the legal option to choose amongst various persons and determine the adequate one for the job. When every child is special, every child is at the risk of being exploited; and not giving them an option to use their rights, is one of the fundamental kinds of exploitation that is missed from the eyes of the law.
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