The issue of architectural work infringement entails a comprehension of
protection of works when works are reproduced, distributed, performed,
publicly shown, or transformed into a derivative work without the consent of the copyright owner.
What really is an Architectural Work ?
A building or structure with an artistic character or design, or any model for such a building or structure, has been defined as a work of architecture
(Section 2(b) of the Act). Furthermore, Section 2(c)(ii) expressly embraces
‘works of architecture’ such as structures and architectural models. Simply
put, you might have a copyright in your home’s architecture. Surprisingly,
architectural works were not granted protection under the statute until an
amendment to the Berne Convention in 1908, when the list of “literary and
creative works” was revised. Different legislation has provided specific
protection to such works by modifying their laws. Although architectural
works are considered creative works, some constructions, such as boats and
bridges etc, are not protected by law.
Protection under Copyright Act, 1957
In general, every creative work created by a person is protected by copyright. The term “originality” refers to the notion that an author must have created the work using his or her own imagination and labor. Furthermore, the work must have been reduced to a material form. Copyright exists as soon as a work is created, and no formality is required to acquire copyright; nonetheless, it is recommended that the author/owner of the copyright register their work to ensure that they can enforce the rights provided by the Copyright Law if their copyright is infringed. Various countries have different regulations regarding artistic works’ copyright. Under Indian law, architectural creations are protected under unified copyright legislation. The sorts of artistic works that are eligible for copyright protection are listed in Section 13 of the Indian Copyright Act, 1957. Section 59 of the Copyright Act prohibits an author of an architectural work from obtaining an injunction against an infringing construction of a building or structure that has already been completed or begun. The only option here is to seek monetary damages or criminal prosecution.
For example, if I want to build a ABC Tower, XYZ will not be able to file
for destruction or get an injunction against construction if the construction of my building has already been completed under a special relief legislation. XYZ’s only option would be to seek monetary damages and/or criminal action. The notion of “fair use,” incorporated in the Act under Section 52, similarly limits an author’s exclusive right to create architectural works. The law does not prohibit a person from selecting what he finds beneficial from current work and then creating new work with any additions, revisions, or improvements. Sections 52(s) and 52(u) expressly specify that an act does not constitute infringement if:
- Any person who creates, publishes, or exhibits an architectural work in the form of a painting, photograph, drawing, or engraving. This is
known as Panorama Freedom.
- A cinematograph film includes a work of architecture located in a
public area or premise to which the general public has access.
While other legislations such as American and European copyright regimes do not enable the aforementioned defense if the use is commercial in nature, the Indian Copyright Act, 1957 does not have such a restriction. “Works of architecture,” like other artistic works, are protected under this statute for the period of the author’s life plus 60 years. Some persons believe that the Copyright Law does not adequately protect all of their interests, so they seek protection under the Trademarks Act.
Berne Convention protecting architectural works Article 2(1) of the Berne Convention mandates member countries to extend copyright protection to “works of architecture and 3 dimensional works relating to architecture.” 5 The Berne Convention, on the other hand, does not
specifically define what works constitute a “work of architecture” subject to protection, other than that such works may be “integrated in a building or other structure.” The Berne Convention’s mandate for architectural copyright protection is explicitly incorporated into the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) without further specifying what defines a work of architecture. Except for Article 4, which specifies “plans, sketches, and artistic works connected to building were described,” architectural works were not covered in the 1886 Convention.
As a result, the protection of architectural works is a subject that has received little attention and discussion. Many architects and designers are unaware of how to preserve and enforce intellectual property rights in their building designs. The majority of countries have now amended their laws to meet the Berne Convention’s requirements for architectural work copyright protection. Furthermore, the basic use of spaces such as windows and doors, which are fundamental to the structure of any building, is not covered by copyright law. In such a case, the Delhi High Court’s decision, as well as the harmonious
architecture of the Copyright Act and the Design Act, served as a balancing beam to address the issue.
The views are that of author’s own and not necessarily the views of IPTSE Academy. This blog is a platform for academic discussions and hence authors have been given flexibility to convey their thought process.
1st year Law student
Institute of Law