By Ananyaa Banerjee and Nitika Sinha
Intellectual Property can be referred to any asset or creation by a human being in an intangible form that is a result of his creative mind. A category of such expression of creative and original thought in the form of literary, dramatic and artistic work is covered under the Copyright Law. Copyright law does not delve into the uniqueness or artistic value of the work created rather confines itself to the originality of the expression of idea. In essence, Copyright Law accords exclusive rights to the authors of any literary, dramatic or artistic works to reproduce or duplicate the material regardless of its uniqueness or artistic impression.
In India, the Copyright Act of 1957 (hereinafter referred to as “the Act”1) lays down legal protection for original expression of ideas, rather than ideas themselves by conferring it on literary, dramatic, artistic and musical works, not only limited to traditional modes of production, distribution and/or reproduction. While this demarcation for what qualifies for copyright protection is quite clear, with respect to certain newly evolved forms of artistic work, there is a dichotomy in regard to legal protection thereof, which is dealt with in the following article.
The traditional understanding of art, to a great extent, proffers the idea of selective permanence, through time, for it being an objective transmission of an idea. Be it the lyrics of the famous song that we keep humming all day long or the fictional characters that we rejoice reading in a novel or the cartoon character that kept us hooked to our television screens during our childhood are all subjects of copyright protection. However, as world progresses, so do the humans and their intellect which brought in another form of art, which is conceived under a concept of transience in time, being non-permanent as a material and overall conservable, in its individuality. None of us is unaware of the mesmerizing sand arts made by Sudarshan Pattnaik on the Puri beach of Odisha2 who was honoured with Padma Shri by the Government of India in the year 2014 or the unique plating style that the contestants employ in the reality television shows like “Master Chef” or the recent ice carvings made by the artists representing the Kangsing Snow and Ice Sculpture Association in Ladakh3. These are some of the examples of ephemeral art, named so for its transitory or perishable nature, since it does not leave behind a lasting work/impression, or ceases to be representative of the moment it was ideated or created in. Art may or may not be durable, keeping in mind the surrounding circumstances, however, the essence of ephemeral art is the couched within fleeting expression, conceived for instantaneous consumption. The only constant herein is change: either repeated, evolving, fluctuating or vanishing. Various instances of ephemeral arts are fashion, hairdressing, perfumery, body art, performance art, installation art, conceptual art, graffiti or even architecture.
Impermanent Art as a Form of Ephemeral Art
Having understood the idea behind ephemeral art, it can be easily construed that art in temporary form or art that is created specifically to witness changes over time, is impermanent art. The artist’s intention behind the creation thereof is perpetual change, which means that the work in question shall not always remain the same and shall deliver a distinct impression, over the passage of time as against the traditional idea of unidirectional expression. The elements used in creation of such an art work primarily range from edible or perishable items, which have a natural origin, change their composition/characteristics, exploring the visibility of time to natural resources like plants, trees, sand, ice etc.4 In a nutshell, it can be said that impermanent artwork is a subset or form of ephemeral art.
As can be inferred from the analysis above, any artistic work, being the creative expression of an intangible idea, finds natural coverage under the ambit of copyright law. Under the Act, a “work”, defined under Section 2(y), refers to “a literary, dramatic, music, artistic work, cinematograph film, or a sound recording. Additionally, the inclusion of artistic work, statutorily, finds place within Section 2(c), meaning “(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; (ii) a [work of architecture]; and (iii) any other work of artistic craftsmanship.” Therefore, it can be inferred from the definitions above, that impermanent art can be considered as an artistic work, for the application of copyright law, since the definition of artistic work is very comprehensive and descriptive, including but not limited to paintings, sculptures, graphics, cartoons, etchings, lithographs, photography, drawings, plan, maps, diagrams, sculptures, etc.
Fixation of Impermanent Art
Impermanent art, as has been understood above, is the antithesis of permanence of creation and thus, seeks analysis with respect to coverage in law. Legislatively, any work, which is an original creation of an author or an owner fixed in a tangible form, is capable of being entered into the Register of Copyrights, irrespective of the fact whether such work possesses any artistic quality or not.5Fixation, literally means the existence of a literary or copyrightable work in tangible form. The concept finds its inception within the Berne Convention6 and the Rome Convention7. As per Article 2(2) of the Berne Convention, the prescription of requirement for general or specific categories of work to be fixed in some material form, is a matter of municipal legislation of the signatories. The interpretation of the Indian Copyright Act to be in consonance with the Berne Convention was also held in the case of MRF Limited v. Metro Tyres Limited8. In light of the same, the Indian Copyright Act does not specifically state fixation as a requirement. Within the case of Emergent Genetics India (P) Ltd. v. Shailendra Shivam9, the Court specifically stated that fixation is not a pre-condition for a copyright to subsist in a work in India.10 This rule of fixation is has been adopted in certain forms by a number of countries in the European Union including the United Kingdom11 and to a great extent, in the United States of America12.
For instance, the Copyright, Designs and Patents Act, 1988 of the UK lays down that Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise.13 The US the Copyright Act lays the condition that a copyright protection shall subsist in original works of authorship that are fixed in a tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated.14 Further, the act states that a work is considered to be “fixed” in a tangible medium of expression when it is embodied in a copy or phonorecord that is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.15
Thus, it is sufficiently clear that the UK and the US copyright laws do not seek the work of art itself to be in a permanent form for it to secure copyright protection but it lays the condition that a copy of the artwork should be recorded in a form that is in some tangible form to be transmitted or communicated over a period of time.
Therefore, prima facie and as per the basic requirement of fixation in tangible form, impermanent art stands qualified thereunder. However, considering lack of proper clarity for existence of an underlying necessity of permanence and for lack of mention thereof within the legislation or any judicial precedence to this effect, the qualification of impermanent art with respect to fixation in tangible form, to this effect, remains undecided to this day. The only requirement for fixation, recognised within the Indian Copyright Act, is with respect to dramatic work.16
Copyright Protection of Impermanent Art
Having established the prima facie coverage of impermanent art under the copyright act, notwithstanding the necessity of permanence, the protection thereof is identified as per other provisions of the Act.
Section 14(c) of the Act, providing for meaning of copyright in case of artistic works, allows reproduction of the work in material form, which includes storing and depiction, communication of the work, issuance of copies, inclusion in cinematograph films, adaptations of work, etc. As per the analysis above, there is no necessity of fixation in tangible form for the artistic work to acquire protection under the act. However, as per this section, there is a need for expression in the material form17. Again, since impermanent work is a tangible expression, regardless of its transience, it fulfils the requirement of material form within the Copyright Act. Meaning that, hypothetically, in case any impermanent artwork, being an edible art installation, is granted copyright protection, under the Act, and due to its transient nature, requires renewals/change by the artist themselves, it might qualify as reproduction in the material form, while also fulfilling the tangibility of the work. However, the issue faced herein is the lack of clarity with respect of expression in material form, which again, has not been defined either in the legislation or by the judiciary. There has been no explanation proffered which mentions the permanence of nature of artwork, either in tangible or material fixation.
Assuming that impermanent art is granted valid copyright protection, with respect to licensing, assignment and permission to use impermanent art, the existing provisions within the Act must suffice, since no specific legislation exists thereof as yet. Assignment, as covered under Section 18 of the Act, provides for the entitlement of assigned rights related to the copyrighted work to the assignee, in the capacity of the owner of the copyright in specific rights. Therefore, considering that impermanent art is granted copyright protection, effective within meaning of the Act, all provisions of assignment and subsequent permissions to use shall be applicable thereon, wherein the owner of copyright in an impermanent artwork may enter into a written assignment deed, under Section 19 of the Act. Additionally, since the time limit for assignment/permission to use can be discretionary, it shall be easier for artists of impermanent works to assign it for commercial purposes for the limited duration, for which it exists/persists/does not undergo substantial change.
Similarly, the effect of licensing, voluntary18 or compulsory19, as the case may be, which deals in granting the licensee specific interest to the copyrighted work, subject to certain conditions, along with permitted use of copyrighted work20, shall also be applicable in this regard. The applicability of provisions of the Act to works of impermanent art, remain however subject to the grant of copyright protection thereto, which is still unclear.
Due to a major lack of specific legislative coverage, the limit of impermanent art being granted copyright protection is limited to this extent.
For the purpose of providing copyright protection to impermanent artworks, the legislators firstly need to recognise the subsistence of copyright in impermanent artwork. Then, the tangible forms of recording or copying the artwork on the basis of which the copyright can be claimed by the artists should be specified.
For the lack of provisions and judicial precedents in this regard, there are major lacunae present with respect to copyright protection of impermanent art, which is a recently evolving, albeit historically propagating phenomenon21. Impermanent art, being temporary in nature, are handicapped by a dearth of statutory provisions within the Act, as to lack of clarity over degree of permanence, mentioned under the Act, within Section 5222, or with respect to tangibility and materiality, as explained above.
Basis the present submissions, it is clear that regardless of the legislative gap, the courts have focused majorly on the importance of tangibility of work and not fixation, which could also infer the possible legislative intent prioritising the actual expression over other factors. However, for the employability of the legislation as a whole, it is imperative for there to be a holistic understanding, to ensure maximum protection of existing and evolving art. Thus, there is an urgent necessity for the legislation and judiciary to close the existing gap. Meanwhile, prima facie and basis the provisions mentioned, impermanent work may find copyright protection in a limited sense, as has been elaborated herein.
1 Accessible at https://copyright.gov.in/documents/copyrightrules1957.pdf
2 Apoorva Kaul, “Earth Day: Sudarsan Pattnaik Makes Beautiful Sand Art To Spread Message About Environment”, 2022, accessible at https://www.republicworld.com/entertainment-news/whats-viral/earth-day-sudarsan-pattnaik- makes-beautiful-sand-art-to-spread-message-about-environment-articleshow.html
3 Sneha Bhura, “Artists in Ladakh are dreaming and carving alchemies in ice”, The Week, 2022, accessible at https://www.theweek.in/theweek/leisure/2022/03/06/artists-in-ladakh-are-dreaming-and-carving-alchemies-in- ice.html
4 “Impermanent Art”, Catherine Dupree, Harvard Magazine, January-February, 2002. Accessible at https://www.harvardmagazine.com/2002/01/impermanent-art.html
5 “Practice and Procedure Manual, 2018- Artistic Work”, Copyright Office, Government of India, accessible at https://copyright.gov.in/Documents/Manuals/Artistic_Manual.pdf
6 Berne Convention, Art. 2(2).
7 Rome Convention, Art. 13 and 14.
8 (2019) 79 PTC 368
9 (2011) 125 DRJ 173
10 Dr. Elizabeth Verkey, “Intellectual Property Law and Practice” (2014), accessible at www.ebcreader.com
11 “Copyright Law in the EU: Salient Features of Copyright Law Across The EU Member States”, Eur. Par. R. Ser. (2018), accessible at https://www.europarl.europa.eu/RegData/etudes/STUD/2018/625126/EPRS_STU(2018)625126_EN.pdf
12 “Function over Form: Bringing the Fixation Requirement into the Modern Era”, Megan Carpenter and Steven Hetcher, 82 Fordham L. Rev. 2221 (2014), accessible at https://ir.lawnet.fordham.edu/flr/vol82/iss5/11
13 Section 3 (2), The Copyright, Designs and Patents Act, 1988.
14 Section 102 (a), Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the U. S. Code.
15 Section 101, Copyright Law of the United States and Related Laws Contained in Tıtle 17 of the U. S. Code.
16 Section 2 (h), The Copyright Act, 1957.
17 Kartar Singh Giani v. Ladha Singh, 1934 SCC OnLine Lah 277: AIR 1934 Lah 777
18 Section 30, The Copyright Act, 1957.
19 Section 31-A, The Copyright Act, 1957.
20 Section 52, The Copyright Act, 1957.
21“Impermanent Art”, Dartmouth News (2011), accessible at https://home.dartmouth.edu/news/2011/02/impermanent-art
22 Certain Acts not to be infringement of Copyright