The question is whether or not protected under the copyright law is extended to the village or rural craftsmen who are generally ignorant about the protection of their artistic work and are unable able to protect their work from exploitation by the general public?
Copyright Law: An Overview
The Copyright Act 1957 (as amended by the Copyright Amendment Act 2012) governs the subject of copyright law in India. The Act is applicable since 21st January 1958. The colonial era marks the beginning of copyright law in India and its history can be traced back to that period. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. The Copyright (Amendment) Act 2012 happens to be the latest amendment. India is a member of most of the important international conventions governing the area of copyright law – including The Berne Convention of 1886 (as modified at Paris in 1971), The Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). However, India is not yet a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT).
Status of Traditional Handicrafts
Traditional handicrafts are the images of the cultural heritage of any country. In India, the importance of traditional handicrafts becomes more appealing because of its rich heritage and diverse culture. In India, the constitution through Article 29 guarantees the fundamental right to the individual to protect his culture and heritage. Traditional handicrafts play an important role in serving this purpose and thus, they need to be protected.
The main idea behind the copyright law is to functionalize a balance between the interest of the creator of the content and the public interest in having the widest accessibility to the content. The copyright protection is not only available to literary works but also to artistic works. As according to section 2(c) of the Copyrights Act, 1957 artistic works include:
- A painting, a scripture, a drawing (including a diagram map, chart or plan) on engraving or a photograph, whether or not such work possesses artistic quality,
- A work of architecture
- Any other work of artistic craftsmanship
If we evaluate the term artistic craftsmanship in the light of constitutional provision under Article 29 then we will find that copyright law manages to protect traditional handicrafts and artistic works of individuals. Now, the question is whether or not this protection is extended to the village or rural craftsmen who are generally ignorant about the protection of their artistic work under copyright law and are not able to protect their work from exploitation from the general public?
Related Acts & Statutes
In respect of handicrafts, it is important to have the distinction between traditional and technical handicrafts. The protection can only be provided to traditional handicrafts as they are a major source of the custom of any society and it is a prima facie responsibility of the legislature to provide protection to the rich custom of India. The status of traditional handicrafts can be deduced from following statutes and acts:-
The Copyright Act,1958
The Copyright Act provides that a copyright subsists in an original literary, dramatic, musical or artistic work, cinematographic films, and sound recordings. However, no copyright subsists in a cinematographic film if a substantial part of the film is an infringement of the copyright in any other work or in a sound recording if in making the sound recording of a literary, dramatic or musical work, copyright in such work is infringed. A computer programme is treated as a “literary work” and is protected as such. Following rights are given under copyright act:-
- reproduce the work in any form, such as print, sound, video, etc;
- use the work for a public performance, such as a play or a musical work;
- make copies/recordings of the work, such as via compact discs, cassettes, etc.;
- broadcast it in various forms; or
- translate the same to other languages.
The term of copyright is, in most cases, the lifetime of the author plus 60 years thereafter.
Berne Convention for the Protection of Literary and Artistic Works (1886)
India is a member of the above convention. To comply with the convention, India laid out the International Copyright Order in 1958. According to this Order, any work first published in any country – which is a member of any of the above conventions – is granted the same treatment as if it was first published in India.
Protection under Geographical Indications of Goods (Registration and Protection )Act, 1999
According to this act, “handicrafts are items made by hand, often with the use of simple tools, and generally artistic and/ or traditional in nature. They include objects of utility and objects of decoration”.
According to the TRIPS Agreement, traditional handicrafts were sought to be protected by way of geographical indications under national laws. The Geographical Indications of Goods (Registration and Protection) Act, 1999 provides a mechanism for registration of GIs and elucidates on the concept of an authorized user and registered proprietor, both of whom can initiate action for infringement. Till 2006 almost 30 GIs including traditional handicrafts such as Kondapalli toys of Andhra Pradesh has already been registered with the GI Registry. In this effort of registration government plays important role as it can register the traditional handicrafts by itself becoming the prima facie holder of the traditional handicrafts as most of the craftsmen who make these handicrafts are ignorant about the value of their creation, in this way by becoming prima facie holder it not only protects traditional handicrafts but also the right of craftsmen in realizing the value of their creation
The design right which is defined in Section 2(c) of the Designs Act gives the exclusive right to apply design to any article in any class in which the design is registered.
The Design Act is the main force behind the protection of external outlook of traditional handicrafts but it only protects the design of the object, not the object itself. For example, rice crafting in Rajasthan where miniatures are drawn on a single grain of rice then under the purview of Designs Act,2000 only the miniature design is protected not the whole model of rice. Section 2(d) of Designs Act,2000 and section 2(c) of the Copyright Act,1957 should be read together and carefully in order to distinguish the design on the object and object itself. It is significant to note here that designs act grants design right only to non –functional aspects of design, so if a particular design is predominantly functional than it cannot qualify for a design right.
Object of Law
On the basis of the interpretations of aforesaid statutes and acts, the main object is to protect the cultural relation of craftsmen with his customers through traditional handicrafts so that the fundamental right of the craftsmen can be protected.
Major Points of Discussion
Firstly, The main point which remains untraceable despite many statutory provisions and implications is – What role is being played by the government to ensure that the craftsmen are aware of their right to protect their unique artwork? Does the government encourage them to protect their work? Do they have this right void of exploitation?
Secondly, whether the scope of section 2(c) of copyright rules, 1957 can be extended to include traditional handicrafts in it is questionable.
Thirdly, whether the design of the object and the object itself can be protected under one statute because by clearly reading section 15 of the Copyright Act,1957 and section 2(d) of The Design Act, 2000, it is clear that traditional handicraft and design of the handicraft cannot be protected under one statute which makes it very hard for the rural and village craftsmen to register the copyright of their traditional handicraft.
What is The Legal Procedure To Register a Copyright?
Section 44 to Section 50 of chapter 10 of Copyright Act,1958 deals with the legal procedure to register a copyright. The application is made to the registrar in Copyright office who makes a relevant entry of registration of the copyright in the register of copyrights, the entry itself is admissible proof of the copyright and no other proof is required to prove a copyright in the court of law. It is also stated that it is not mandatory to register a copyright for acquiring a copyright under Indian law. A copyright in a work is created as and when the work is created, provided that the work is original.
In the end, it is concluded that works like traditional handicrafts can be protected under Copyright Act but the limits of protection are undefined. The traditional handicrafts which got registered under the GI act are totally protected whereas in normal case only the external design of the traditional handicrafts is absolutely protected. The role of government in informing the craftsmen about the copyrights and other intellectual property rights is also undefined and need to be clearly specified so that more and more copyrights registration of traditional handicrafts can take place from the sides of rural and minority craftsmen. In order to make India a cultural highlight, it is important that absolute protection is given to the customs and heritage of individuals and by registering the copyrights of traditional handicrafts a sufficient value can be given to Indian customs as these works define the relationship of an individual with his custom.