This article is written by Astha Gupta pursuing Diploma in Intellectual Property, Media, and Entertainment Laws from LawSikho.
Ever wondered if a particular building or a monument could be under copyright protection? I was having a discussion with my brother the other day who is a civil engineering student and he asked me this very question. The answer I gave him was devoid of any references to provisions of law as that’s how he wanted to understand it; short and succinct.
But I later thought that the above question deserves a more in-depth exploration. A work of architecture is a composite of several elements that are involved in the construction of any building or model. The protection of such works in India falls over three different legislations; copyright, trademark, and design law. So, in this article, we are going to look into the nuances of how these laws interplay with architectural works. As this topic is relevant for many architects, civil engineers, builders, and like, let’s cover the basics first.
What is known as copyright?
In the simplest words, it is a right afforded to a creator for his creation; a right to copy. Being negative in nature, allows the author to protect their work against any unauthorised usage or adoption.
Just like all other forms of intellectual property, copyright law is also applicable to the works of human intellect. Such work shall not be a mere thought but an expression that is capable of being fixated in a tangible medium. The protection of copyright in India is governed by the Indian Copyright Act 1957 (‘the Act’) and Copyright Rules 2013 (‘the Rules’).
The meaning of the term copyright is defined under Section 14 of the Act as an ‘exclusive right’ to do or authorise acts with respect to copyrighted work such as reproduction, adaptation, modification, translation, public performance, distribution, etc. This basically means that if I as an architect made a really cool building and now an artist made a sculptor of that building, the artist will be infringing upon my right to reproduction. Or, if a producer includes the building designed by him in his drama, he would have infringed upon my right to public performance. The essence behind this law is when a person creates anything that is considered as original devoting his mental energy to it, such product is considered an intellectual property and should be safeguarded from unauthorized copying.
Copyright normally resides in the creator. So, if you’re planning to engage an architect for getting your house or office building design made, make sure you write it in the appointment contract that the rights in the design will be vested in you. Every work is not suited for protection as copyright does not extend to theories, discoveries, or ideas and it also does not protect logos, slogans, data, titles, etc.
The Act covers under its ambit ‘original works of authorship’ and all such works are listed in Section 13 of the Act. In the case of architecture, Section 13 states that copyright will cover only the design and artistic expression and character involved but not the method and process of construction of any structure or building.
What is architectural work?
A work of architecture has been defined as a building or structure having an artistic character or design, or any model for such building or structure (Section 2(b) of the Act). Further Section 2(c)(ii) explicitly includes ‘works of architecture’ such as buildings and models of buildings. Simply, you can even have a copyright in the architecture of your house.
Interestingly, the protection under the act was not awarded to architectural works until an amendment in the Berne Convention, 1908, and the list of “literary and artistic works” was updated. Specific protection to such works was given by different legislation by amending their laws. Although the architectural works are considered artistic works, yet some structures are not privy to protection under the law like boats, bridges, dams, etc.
Protection under Copyright Act, 1957
As discussed above, a work originally created and produced in a material form is eligible for copyright protection and such protection is available the moment a work comes into existence. The act does not make it mandatory to get copyright registered however, it is advisable to get the work registered as it helps the author (architect) in enforcing his right.
The moral rights of the architect are also protected under Section 57 of the Act protecting the right of attribution and integrity of the architect. The creator can claim authorship in his work and rights against distortion.
The Act also mentions some restrictions on remedies available in cases of architectural works. Section 59 of the Copyright Act, bars an author of architectural work to obtain an injunction against an infringing construction of a building or structure which is already done or commenced. The remedy available here will be to ask for damages or criminal charges. For example; if I want to build a Gateway Tower, the remedy of filing for demolition or injunction against construction will not be available for DLF if the construction of my building is already completed under a specific relief act. The only relief DLF would have will be to file for damages and/or criminal prosecution.
The doctrine of “fair use” enshrined in the Act under Section 52 also imposes certain restrictions on the exclusive right of an author of architectural works. Copyright Law does not disallow a man from picking what he finds useful from existing work and further creating new work with any additions, alterations, and improvements in it. Section 52(s) and 52(u) specifically states that an act does not amount to infringement where:
- Any person makes, publishes, or displays any painting, photograph, drawing, engraving of an architectural work. This is known as Freedom of Panorama.
- Such work of architecture situated in a public place or a premise to which the general public has access is included in a cinematograph film.
The Indian Copyright Law is not much stringent in this regard as while other legislations such as American and European copyright systems do not allow the above defence in case the use is commercial in nature; Indian Copyright Act, 1957 holds no such bar. Just like other artistic works, “works of architecture” enjoy protection under this law for a duration of 60 years+ author’s life. Some people find that all their interests are not covered by the safeguards offered by the Copyright Law hence, they seek protection under Trademarks Act.
Architectural designs and Trademarks Act, 1999
In general parlance architecture is ‘an art of designing and constructing buildings’. Section 2(m) of the Trademarks Act, 1999 defines the term ‘mark’ as something which includes name, signature, brand, letter, word, device, inter alia. The registration of architectural designs in the Trademarks Act is not specifically granted, however, an inference can be made under Section 2(1)(zb) which states that a mark is capable of being registered if it can be represented graphically and is able to differentiate goods and services of one person from another.
If you wish to ensure that your design is not recreated or copied by anyone, you can take recourse under this Act as long as your structural design is capable of fulfilling the test of ‘graphical representation’ and ‘differentiation of source’. What it means is that there must be a physical form of the design and that the building must essentially leave a compelling inference of identifiability only and wholly with the owner of the trademark and the goods and services he offers. The protection granted under this Act lasts till perpetuity as long as the mark is renewed every 10 years.
The Taj Mahal Palace Hotel in Mumbai became the first building to secure a trademark registration in India in 2017 for ‘Services of providing food and drink’. Now if anyone wishes to include any part or feature of the hotel in their work (for example; a movie or a song), they would have to seek permission from the trademark owner, in this case, the India Hotels Company Limited (IHCL). The owner can grant such permission against a fee but the restriction does not apply if the use is non-commercial.
I will point out here that copyright law does not offer such protection to the registrant as Section 52 of the Copyright Act allows the use of buildings in cinematograph works irrespective of the commercial nature of the use.
Next year in 2018, the Bombay Stock Exchange also got its building at Dalal Street trademarked. Around the world, many eminent buildings have trademark protection like Eiffel Tower, Sydney Opera House, etc.
Apple also efficiently utilises the US trademark law to protect its architectural craft and has been known to consciously protect its store’s design against infringement.
The architectural design can also be registered under the Designs Act, 2000.
The registration is governed by Section 2(d) of the Designs Act, 2000 and can be secured under classes 25-03 and 25-99. The requirements for protection under the Designs Act are pretty similar to the Copyrights Act in terms of want of originality but unlike the latter, you need to get your work mandatorily registered under the Designs Act to reap the fruits of your labour. Moreover, if a design is reproduced by any means more than 50 times, a person loses chances of protection under copyright law and only has the recourse to the Designs Act.
The court in the case of Microfibres Inc. V. Girdhar& Co. & Anr., has clarified that if a person has registered a design under the Designs Act, he will forgo his copyright protection, but if the design is not yet registered under the Designs Act, it would continue to be protected under the Copyright law as long as the industrial limit of over 50 reproductions does not surpass.
In the words of Winston Churchill, “We shape our buildings; thereafter, they shape us”. The issue of protection of architectural designs and works is still not much discussed and talked about. Many engineers and architects are deficient in proper knowledge about intellectual property in their creations.
The design created is protected under copyright law since inception, but the creator can choose to seek further protection under Trademarks Act or Designs Act.
It’s always good to know your rights when you’re in the creative field so that you can protect your interest but even more so that you don’t accidentally infringe on somebody else’s right. It’s good to get inspired by an existing work but it’s never a good idea to copy. After all, imitation is not always the sincerest form of flattery.
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