Architectural Works in the Intellectual Property Regime

Introduction

With the ever-evolving paradigms of visual depiction, what constitutes protection of origin is a dynamic concept. It is undisputed that the value of an eloquent and discerning visual aesthetic is an indispensable aspect of an architectural structure and is therefore vulnerable to infringement in varying forms, ranging from redistribution to derivation without consent.

The revision of the Berne Convention of 1908 brought literary and artistic works within the ambit of protection on a global scale. With India being a signatory country, the intention has been well incorporated within the legal framework. A closer look makes it evident that an artistic work in the form of an architectural structure comprises several elements falling under varying spectrums of protection with respect to Intellectual Property rights, spanning over Trademark, Copyright and Design law.

Architectural work – An art, design or a mischievous interplay?

Although Article 2(1) of the Berne Convention, 1908 has included works of architecture within its definition of ‘literary and artistic works’,[1] it remains implicit with respect to the definition of the term so provided, with the exception that as per Article 4(b) of the Berne Convention, 1908, “authors of works of architecture, erected in a country of the Union or of other artistic works incorporated in a building or other structure located in a country of the Union.”[2] Keeping in line with the same, in a crucial judgement solidifying the Copyright regime in India, the Hon’ble Court in Mrf Limited. vs Metro Tyres Limited, held that infringement is not limited to duplication but may also be extended to any form of imitation or reproduction of the original work.[3]

Further, with respect to the Indian legislation, architectural works fall within the ambit of the Copyright Act, 1957, more specifically, the same has been included within the definition of an artistic work vide Section 2(c)(ii) of the Copyright Act with the essential that the building, structure or its model possesses some artistic design or character as provided vide Section 2(b) of the Copyright Act.[4] Further, Section 13(5) of the Copyright Act states that “work of architecture copyright shall subsist only in the artistic character and design and shall not extend to process or methods of construction”.[5] Evidently, the rights of the architect shall only extend to the artistic character and design and not the construction process per se. The same was recently clarified in the judgement pertaining to the demolition of the Hall of National Building located in New Delhi, rendered in Raj Rewal vs. Union of India and Ors., wherein it was the contention of the architect that the demolition of the building by the owner should be restrained on the basis of the architect’s moral right arising out of the special rights of an author provided vide Section 57 of the Copyright Act. The Hon’ble High Court of Delhi, while rejecting this contention, observed that the architect’s moral right to restrain distortion of their work cannot supersede the absolute right of the owner over the destruction of their property in its entirety.[6] Thus, clarifying the limitations on the scope of an author’s right under the Copyright Law.

At the same time, the Copyright Act has also carved out certain exceptions for acts not amounting to infringement or otherwise referred to as ‘Freedom of Panorama’. According to Section 52 of the Copyright Act, acts in the manner of paintings, photographs, cinematographic films, etc. of architectural works and other permanently situated structures having public access shall be considered as fair use not amounting to infringement. For instance, the feature film Neelkant Darshan was brought into question for being shot in the Akshardham Temple located in New Delhi where photography and videography is otherwise prohibited. As per the provisions of Section 14(c)(i)(A) of the Copyright Act, architects, being the rightful authors of architectural work, have the right to prohibit storage of their work in any form. However, in this instance, the application of Section 52 of the Copyright Act took prevalence owing to the Temple being permanently situated in a public area. It is intriguing to note this as a stark difference from the American and European Copyright law that, unlike India, limit these exceptions to purely non-commercial and educational purposes.

Further, in the judgement rendered in Meikle v. Maufe, it was held that despite the ownership rights remaining with the building owner, the copyright pertaining to the specific design and plan of architecture as prepared by the architect remains with the architect i.e., the origin source.[7] This would mean that while the architect may rightfully reproduce the said design or plan and may redistribute the same to other owners, the owner would only have ownership rights to that specific building.

While the artistic value of architectural works has already been safeguarded by the Copyright law, the design attributes have been largely encompassed under the ambit of the Design Act, 2000, specifically under classes 25-03 and 25-99 as per Section 2(d) therein.

Whereas evidently, the intent is to protect all aspects of the structure, the overlapping of laws has the potential of leading to conflict and contradictory interpretation and the question as to what presides must be answered. A possible solution can be found in the judgement rendered in Microfibres Inc. V. Girdhar & Co. & Anr., wherein the Hon’ble Court interpreted the provisions of Section 15(2) of the Copyright Act and the Mischief rule and stated that “the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent in spite of commercial production”[8], and consequently, the Hon’ble Court held that “If the design is registered under the Designs Act, the Design would lose its copyright protection under the Copyright Act. If it is a design registrable under the Designs Act but has not so been registered, the Design would continue to enjoy copyright protection under the Act so long as the threshold limit of its application on an article by an industrial process for more than 50 times is reached. But once that limit is crossed, it would lose its copyright protection under the Copyright Act. This interpretation would harmonize the Copyright and the Designs Act in accordance with the legislative intent.”[9] Thus, clarifying the paradoxical overlap and the position of the law.

Architectural designs as visual marks

When one speaks of eminent features and notable aspects of structures, the reputation associated with it brings the structure within the realm of Trademark law. Whether it is iconic design elements, prominent artistic features or other celebrated aspects, the same not being functional features, all that identifies with the originator of the architectural work falls within the ambit of protection.

The mandates set out in the Berne Convention for the protection of the intellectual property rights in architectural works have also been taken forward in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as well as the Trade Marks Act, 1999 in India. Accordingly, architectural works have been included within the definition of a mark vide Section 2(1)(zb) of the Trade Marks Act, which states that “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others”.[10] Thus, graphical representations of architectural works that are capable of indicating a source fall within the ambit of the Trademark law thereby, ensuring restriction on replication.

Some iconic examples of architectural work trademarks include the Rock & Roll Hall of Fame, Empire State Building, the Space Needle, the lighting of the Eiffel Tower, the landscape of Apple stores, amongst others. A similar pattern can also be traced in India. As a first, in 2017, India Hotels Company Limited (IHCL) trademarked the iconic Taj Mahal Palace Hotel’s building in Class 43 with respect to services for providing food and drinks. In another instance in 2018, the Bombay Stock Exchange acquired trademark rights over its iconic building located on Dalal Street, Mumbai.

In light thereof, trademark law can evidently be extended to include various aspects of architectural work including structural layouts, significant interior and exteriors landscapes as well as any terms, symbols, designs associated with the structure, given that the same is not a ‘work of art’ and is capable of aiding in the structure’s identification and designating its related goods/services.

Conclusion

It would be incorrect to state that architectural structures are limited to the extent of their functionality or purpose. It is essential to perceive and appreciate the artistic value attributed to each individual structure by its rightful creator, especially in the event that some such structures acquire a significant recognition and may become vulnerable to non-consensual use. Thus, a strong legal foundation becomes essential and a well-balanced cocktail of Intellectual Property rights including Copyright, Design and Trademark law is a crucial cog in the foundational wheel. Evidently, the framework for protection of architectural works is still at a very nascent stage, with progressive judicial interpretation, however, the legal connotation surrounding the architectural value appears to be steadily crystallising, with the ultimate intent being that of protecting the rights of the originator in their work.

[1] (“Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)”) [2] (“Berne Convention for the Protection of Literary and Artistic Works (as amended on September 28, 1979)”) [3](CS(COMM) 753/2017 #) [4] (https://copyright.gov.in/documents/copyrightrules1957.pdf #) [5] (https://copyright.gov.in/documents/copyrightrules1957.pdf #) [6](CS (Comm) No. 3 of 2018 #) [7] ((1941) 3 All E.R. 144 #) [8] (RFA (OS) NO.25/2006 #) [9] (RFA (OS) NO.25/2006 #) [10] (https://ipindia.gov.in/writereaddata/Portal/ev/TM-ACT-1999.html #)