INDIA Law and Practice Contributed by: Roshnek Dhalla, Bijal Ajinkya, Moin Ladha and Shailendra Bhandare, Khaitan & Co
4.3 Legal Remedies Following a Declaration of Inauthenticity In India, a buyer will have several civil remedies in cas - es where purchased artworks are declared inauthentic after the purchase. Apart from any specific remedy or damages provided for within the contract for sale of the artwork, the buyer may seek to rescind the con - tract on the grounds that the buyer’s consent to the agreement was caused by fraud or misrepresentation. A buyer who has purchased an artwork that is later declared inauthentic may also claim that the contract has been breached, and seek damages. Such dam - ages can include the purchase price and other costs that are shown to have been reasonably and proxi - mately caused to the buyer as a result of the breach of contract. Moreover, in cases where the artwork is sold by an art dealer, auction house or art gallery, the buyer may additionally have a remedy under the Consumer Pro- tection Act, 2019 to claim compensation for having been sold a defective product. It is relevant to note that, when an inauthentic artwork is sold, the true owner of the copyright in such artwork would have recourse to separate remedies under copyright law. While the term “cultural heritage” is not a defined term, in common parlance cultural heritage is interchange - ably used to denote ancient monument, antiquity, heritage buildings and heritage sites in India. Section 2 (a) of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 provides an inclusive definition of an ancient monument to mean any struc - ture, erection or monument, any tumulus or place of interment, or any cave, rock-sculpture, inscription or monolith, which is of historical, archaeological or artis - tic interest and which has been in existence for not less than 100 years. In the absence of a legislative definition of “cultural heritage”, it is still understood holistically under three distinctive pieces of legislation specifically enacted for preservation of ancient monuments, archaeological 5. Cultural Heritage 5.1 Defining Cultural Heritage
This process takes around 24 months; the timeline is indicative, and efforts can be made to expedite the process. 3.3 Resale Right A resale right is a statutory personal right that enables original authors/artists to benefit from a percentage of the price of sale (exceeding INR10,000) earned from the resale (sale following the first sale of the work) of the artist’s original work (not copies). This right sub - sists for the entire term of copyright protection (ie, the author’s lifetime plus 60 years) and despite the original artist’s/author’s assignment of the copyright. Resale rights are crucial for artists, since in most cas - es the value of original artwork increases over time in the resale market and helps the artist benefit from such appreciation of their artwork’s value, which may have been sold at a significantly lower price initially. Under Indian copyright laws, in the case of resale of an original artwork, the author of such work – being the first owner of the artwork or their legal heirs – shall have a right to share (not exceeding 10% of the resale price) in the resale price, which is fixed by the relevant authorities. 3.4 Using Copyrighted Images Permission to use a copyrighted work may be obtained from the copyright holder or authorised licensees of the copyright holder directly under a licence, in writ - ing. 4. Authentication of Artworks 4.1 Posthumous Rights to Authenticate Artwork An artist’s estate is normally the most suitable option for authentication. 4.2 Art Authentication Nobody (including a foundation) can be compelled under the pretext of moral rights or otherwise to include a specific artwork in the artist’s catalogue rai- sonné or to issue a favourable opinion regarding a certificate of authenticity.
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