INDIA Law and Practice Contributed by: Roshnek Dhalla, Bijal Ajinkya, Moin Ladha and Shailendra Bhandare, Khaitan & Co
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art
The effect of these two notifications with respect to the works of the named artists is that their works can - not be taken outside India without the express permis - sion of the Central Government; further, if the Central Government believes that their works need to be pre - served in a public place, the Central Government can compulsorily acquire their works. While there are no special courts in Indian judiciary to deal with art law, the apex courts typically address prevalent issues and further shape the art law land - scape. For instance, when the customs department confiscated a folio of four drawings by FN Souza and three by Akbar Padamsee, labelling them under “obscenity”, the Bombay High Court held that every nude painting cannot be styled as obscene, and the authorities ought to consider the artists’ prominence, experts’ view and judicial precedents that recog - nise these works as “significant artworks” and not “obscenity”. The Copyright Act, 1957 is also applicable in the case of the art treasures by these artists. These art treas - ures would qualify as artistic works under the Copy - right Act. Section 2 (c)(i) of the Copyright Act defines an “artistic work” as a painting, a sculpture, a draw - ing, an engraving or a photograph, whether or not any such work possesses artistic quality. The Copy - right Act accords protection to these art treasures, as the copyright in these works vests in the authors of such works. Copyright, in the case of an artistic work, means the exclusive right of the author – that is, the artist’s right to: • reproduce the work in any form; • communicate the work to the public; • issue copies of the work to the public; • include the work in any cinematograph film; and • make any adaptation of the work. The term of copyright in an artistic work is the lifetime of the author and 60 years from the date of their death, provided that the artistic work was published during the lifetime of the author.
Under Indian copyright laws, an artist’s rights over a piece of artwork can be broadly classified into two categories. Economic Rights This encompasses a set of exclusive rights that may be exercised/exploited by the copyright holder for monetary gains by themselves or through a third party under a licence, such as: • the right to reproduce the artwork in any material form; • distribution rights and the right to communicate/ make available the artist’s artwork to the public; • the right of adaptation or to create derivative works from the artist’s artwork; and • the right to enforce such rights against infringers. Moral Rights These are also known as “author’s special rights”, which are personal to the creator of the artwork and may be retained by the creator/author despite the assignment of copyright in the artwork or sale of such artwork to any third party by the creator or author. Such rights include: • the right to attribution or paternity, which refers to the author’s/artist’s right to claim authorship over their work and to be attributed for it; and • the right of integrity, which enables the author/ artist to prevent or object to any act amounting to wrongful distortion, improper modification or muti - lation of their artwork resulting in the author’s/art - ist’s honour or reputation being adversely affected. In addition to moral and economic rights, artists also have a “resale right”, which is a statutory personal right that enables original authors/artists to benefit from a percentage (not exceeding 10% of the resale price) of the price of sale of the artist’s original work (not copies); see 3.3 Resale Right for more details. 2.2 Copyright in Collaborative Artworks If an artwork is created by two or more artists/authors, each of whose contribution is independent but funda -
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