An architect always wants the structure designed by him a unique one, not found anywhere else. Because he thinks (and rightly so) his works are the reflection of his talent, creativity and knowledge. No architect wants his work copied nor does he want to be blamed for any plagiarism by other architects and the public. He is always after one-of-a-kind design which can help him to rise above the crowd. For him, his designs are his references which will help him to secure more business and also allow him to stand apart. Like an author of a novel an architect too is possessive about his creations and anyone else taking credit or advantage of his works will not be accepted and that’s where the protection of architectural designs come into picture.
However, trend and practice of protecting architectural works under copyright Act is a recent phenomenon. In India, it has not yet taken off and we haven’t come across any architectural works copyrights violations fought in courts. Even in USA, till 1990 that architectural plans and mock-ups were provided outright copyright protection under the U.S. 1976 Copyright Act. Earlier to 1990, plans and models were allowed to be protected only as graphic and sculptural works. Even after 1990, only the design of a building as embodied in any tangible medium of expression, including a building, architectural plans, or drawings can be protected and other structures like bridges, tents, mobile homes, boats, dams cannot be protected.
However, proving copyright infringement is not that easy and is tedious job. To establish copyright infringement, a plaintiff must prove that he has the ownership of a valid copyright and constituent elements of the work that are original were copied by the accused. But it is easier said than proven in a court of law, especially the second aspect, as they are constrained by functional requirements, consumer demands, and the vast body of similar designs already available.
But it is also true that often, especially in recent times, this law is being used by some opportunistic people to blackmail or harass the genuine and innocent professionals to extract money. There are incidents of some opportunistic holders of copyrights bringing strategic infringement claims of dubious merit just to extract some short term benefits by forcing the other party into prompt settlements. Many a times defendants, even if they are innocent, prefer settlement than get dragged into time consuming and costly litigation.
Even some of the African countries are thinking of making copyright laws for architectural works more stricter. According to them, by doing so, creativity in architectural works can be encouraged and promoted. For example, in Kenya where real estate business is booming, provision is there for copyright protection to architectural works. However, the works that are eligible for copyright protection under Kenyan law should be original and reduced in material form. In other words, mere ideas and unrecorded concepts are not eligible for protection. Functional parts of a home are also not eligible for protection.
In India there is no specific law to curb infringement of architectural designs but there are provisions in Copyright Act which are enough to protect the acts of such infringement. The Indian Copyright Act, 1957 provides for protection of architectural works against infringement and imitation. Section 2(b) of the Act defines “work of architecture” as any building or structure having an artistic character or design, or any model for such building or structure.
According to Section 13 of the Indian Copyright Act “copyright shall subsist throughout India in the following classes of works, that is to say,—
- original literary, dramatic, musical and artistic works;
- cinematograph films; and
- sound recording.”
Section 2(c) of the same Act defines “artistic work” as —
- 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;
- a work of architecture; and
- any other work of artistic craftsmanship.
One of the important factors for protecting an architectural work under the Act is the originality of the work and that originality must have been created through applicant’s own creativity and labour. Further, such work should be in material form, like computer graphics or drawings and sketches.
Further, India being a signatory to Berne Convention and also Universal Copyright Convention, architectural works protected under other countries which are signatories to Berne Convention will be protected in India too without going through the registration processes once again.
However, unlike under European and American copyright laws, Indian Copyright Act allows making and publishing of a drawing, painting, photograph of a sculpture, or other artistic work, engraving or any other work of artistic craftsmanship, if such work is situated in a public place permanently or any premises where the public has an access. On the other hand, European and American laws give such freedom only if the copyrighted work is used for non-commercial or educational purposes.
The practice of protecting architectural works is not common (perhaps unheard of) in India and that may be partly due to lack of awareness about the law, rules and procedures relating to copyright. In fact, subject of copyright itself is not so popular one and most of the court cases (there are not many) are relating to plagiarism in book publications and some relating to film industry. And in architecture field copyright infringement cases are as rare as hen’s teeth. However, future is unlikely to be the replica of the past especially with regard to people’s approach towards aesthetics and design aspects. People are giving more and more emphasis to design aspects nowadays than before. The more people show interest and curiosity towards architectural designs, the more architects will become possessive about their works. That’s when the profession will think of protecting itself from copyright violations.