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Indian Art and Copyright Law

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I recently spoke of Indian art and copyright protection. The 1957 Copyright Act which governs the field isn't particularly well-suited to protecting indigenous art. Its predecessors were brought to India by the British in the 1840s, and were thrust on to the country without substantive Indian input worth mentioning. The result has been that the first 'Indian' copyright law of 1847 was closely tethered to Western artistic practices, and indigenous Indian art was sidelined.

Our current copyright law too echoes those early 19th century statutes, and, given that our hands are also now tied by international treaty, there's little that we can do to change the underlying structure of the law. We can, however, attempt to mould copyright law to protect indigenous Indian art even without sui generis legislation. Whether we should do so is another matter altogether considering that the interaction between protected and public domain cultural artifacts is often murky.

This is a subject I've been interested in for some years now. (This is how I see the Indian Copyright Act with reference to art: SSRN https://ssrn.com/abstract=2625845) Over here, I've shared a draft of the presentation I used, which provides an overview of the law and the issues involved in protecting Indian art.

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Indian Art and Copyright Law

  1. 1. TRADITIONAL INDIAN ART AND COPYRIGHT LAW Nandita Saikia (@nsaikia)
  2. 2. PROPERTY LAWS GOVERNING ART • Real Property • Intellectual Property • Geographical indications • Designs • Copyright via the 1957 Copyright Act @nsaikia | Traditional Indian Art and Copyright 1
  3. 3. SCOPE: 1957 COPYRIGHT ACT • The statute governs — • Copyright in its entirety • Neighbouring rights: performers’ rights & broadcast reproduction rights • Allied rights: moral rights & artists’ resale rights • All of these rights interact with each other @nsaikia | Traditional Indian Art and Copyright 2
  4. 4. WHAT COPYRIGHT PROTECTS • The 1957 Copyright Act determines protectability considering — • The nature of art, through fluid categories • If statutory requirements for protection are met • Western practices are privileged • Authorship and genius • Modes of creation: the artist v. the artisan • Indigenous practices tend to be disadvantaged @nsaikia | Traditional Indian Art and Copyright 3
  5. 5. SUBSISTENCE & OWNERSHIP • Copyright comprises many separable rights • No registration is required for copyright’s subsistence • Copyright ownership is indicated by law • Authors are usually the first owners of works they create (although, sometimes, it’s producers, commissioners, or the employers of authors who own copyright) • Contracts can often override statutory assumptions @nsaikia | Traditional Indian Art and Copyright 4
  6. 6. EXPLOITATION & INFRINGEMENT • Unauthorised copyright exploitation is infringement • Owners determine who can exploit copyright but for... • Statutory and compulsory licences • ‘Fair Use’ exceptions to infringement • Public domain art can be exploited without concern for copyright restrictions @nsaikia | Traditional Indian Art and Copyright 5
  7. 7. PROTECTING THE ‘UNPROTECTABLE’ • Developing protective community and business practices beyond the 1957 Copyright Act • Bringing art within the statutory framework • Creating documentation • Dealing with orphan works • Determining which mode of protection works best, if at all @nsaikia | Traditional Indian Art and Copyright 6
  8. 8. TRADITIONAL INDIAN ART AND COPYRIGHT LAW Nandita Saikia (@nsaikia)

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