Wednesday, September 17, 2008

ANALYSIS OF PROVISIONS OF THE COPYRIGHT AND DESIGNS


 

There does exsist a concrete connection between Section 2(c), Section 15(2) of the Copyright Act, 1999 and Section 2(d) of the Designs Act, 2000 in India. An analysis of the same has been done with the help of case laws below.

 

Section 2 (c) of the Copyright Act, 1999 states:

artistic work" means,--

              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.      an architectural work of art; and

          iii.      any other work of artistic craftsmanship

 

In the matter of Microfibres inc. v. Girdhar & Co.  & Ors.[1],  the plaintiff was the copyright owner of the artistic work vested in the Upholstery Fabric Design under the laws of the United States of America. They contented that the defendants were manufacturing and marketing upholstery fabric, which violated the plaintiff’s copyright under section 51 of the Copyright Act, 1957. It was held that in order for a work of art to qualify as an “artistic work”, it must fall within the definition of artistic work in Section 2 (c) of the Copyright Act.

 

 

Section 2(d) of the Designs Act, 2000 states:

 

"design" means only the features of shape, configuration, pattern, ornament or composition of lines or colours applied to any article whether in two dimensional or three dimensional or in both forms, by any industrial process or means, whether manual mechanical or chemical, separate or combined, which in the finished article appeal to and are judged solely by the eye; but does not include any mode or principle of construction or anything which is in substance a mere mechanical device, and does not include any trade mark as defined in clause (v) of sub-section (1) of Section 2 of the Trade and
Merchandise Marks Act, 1958 (43 of 1958) or property mark as defined in section 479 of the Indian Penal Code (45 of 1860) or any artistic work as defined in clause (c) of section 2 of the Copyright Act, 1957.o(14 of 1957)

 

It was also held that “the exclusion of artistic work as defined in Section 2 (c) of the Copyright Act from the definition of “design” under Section 2(d) of the Designs Act, 2000 is only meant to exclude the nature of artistic works like the paintings of M.F. Hussain. It is thus, the paintings, sculptures and such works of art which are sought to be specifically excluded from the new Act.

 

Section 15(2) of the Copyright Act, 1999 states:

 

Copyright in any design, which is capable of being registered under the Designs Act, 1911 (2 of 1911), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.

 

In the case of Polymer Papers Ltd v. Gurmit Singh & Ors[2], it was held that since industrial drawings and designs for the purpose of manufacturing of filter related machines or components and as such clearly fell within the meaning of design as defined in the Designs Act, 2000. The underlying message of this judgment is that the claim of copyright in the industrial drawings which are being use or manufacturing purposes is not maintainable.

 

In the matter of Dart Industries Inc. & Anr. v. Techno Plast & Ors[3]., it was stated that once drawings are made for creating the ultimate product design, the copyright in the said drawings cannot be claimed under the Copyright Act. The underlying message is that copyright in the Industrial design is governed by the Designs Act, 2000. If a design is registered under that Act, it is not legible for protection under the Copyright Act. In such cases after the design is registered under the Designs Act, the protection given is not copyright protection but a true monopoly based on statute inasmuch as such designs were never protected by common law.

 

In the mater of Samsonite Corporation v. Vijay Sales[4], it was held that “whatever be the nature of the drawing the purpose and intention would be the relevant criterion to consider whether the drawings are designs.”

 

Thus, in conclusion one must look at the intention of the drawing or the purpose for which it is made before looking at whether copyright or design protection is applicable. This is of great importance as this would solve any controversies which section 15(2) may throw up. Drawing comes under the purview of copyrights but any drawing which is to be used for an industrial purpose comes under the purview of designs.

 

 



[1] 2006 (32) PTC 157 (Del.)

[2] 2002 (25) PTC 327(Del.)

[3] 2007 (35) PTC 129 (Del.)

[4] 1998 PTC (18) 372

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Ikat said...
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