Article: Can Ephemeral Artistic Works Be Considered To Be Permanently Fixed In A Tangible Medium For Grant Of Copyright Protection?

Author: Intern - Nehal Gupta

Introduction

Section 2 of the Practice and Procedure Manual on Artistic Works, 2018 , (“Copyright Manual”) issued by the Copyright Office states that, “Any work which is an original creation of an author or an owner fixed in a tangible form, is capable of being entered into the Register of Copyrights, irrespective of the fact that whether such work possess any artistic quality or not.” It relates to Section 2(c) of the Copyrights Act, 1957 (“Copyright Act”) which defines ‘artistic work’ as, “(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) a work of architecture; and (iii) any other work of artistic craftsmanship;” Whether to be ‘fixed in a tangible form’ requires permanent fixation thereby inherently excluding ephemeral works or whether fixation can be tangle even when ephemeral? Does ‘fixed in a tangible form’ require physical permanence of the creation itself or is it enough if the fixation is in a tangible medium? If an element of permanence is required, what kind of fixation can be considered as permanent if the temporal duration of the subsistence of the art-work is itself temporary? This article aims to explore this statutory interpretational issue in respect of ephemeral artistic works.

Form vs. Medium vs. Manner vs. Method 

The Article 2, sub clause 2 of the Berne Convention for the Protection of Literary and Artistic Works, 1979 (“Berne Convention”), grants the government of each member Union to determine whether the ‘fixation in a material form’ is a requirement to grant copyright protection or not. The Copyright Act does not contain any mandatory provision of ‘fixation in a tangible form’, but the requirement of material form is still recognized for copyright protection. Section 14(c) of the Copyright Act states that meaning of copyright is to have an ‘exclusive right’ to reproduce the artistic work in any ‘material form’.

Ephemeral artwork may consist of short term art-installations in galleries/public places; use of naturally transient material like leaves, ice, sand etc,; landscape/integrated architectural works; wall murals/graffiti. Keeping in mind Section 14(c), all the listed artwork fulfils the requirement of ‘material form’ within the Copyrights Act and ‘tangibility’ within the Copyright Manual. However, there is a lacunae in the statute regarding the ‘temporary nature’ of any artwork.

The courts are yet to doctrinally solidify the legislative stance as to what qualifies as ‘fixed in a material form’ in respect of any artistic works, llet alone contemporary ephemeral works. The courts have on occasion delved into what constitutes ‘fixation’ in sound recordings and cinematographic works. In the case of Indian Performing Right Society Ltd. and Ors. Vs. Aditya Pandey and Ors. [CS(OS) No.1185/2006 & IA No.11203/2016] [1], the Delhi High Court stated that the sound recording is only the manner of fixation and does not extinguish separate individual rights. Notably, it is the manner of fixation, not just fixation itself nor even its medium or form, that is highlighted here as a relevant factor. 

In the case of films, although the statute does not explicitly provide for fixation, the Berne Convention states that a cinematographic work is a method of ‘fixation’ along with an original work. This was reiterated in the MRF Limited Vs. Metro Tyres Limited, [CS (COMM) 753/2017] [2] where the single judge bench of the Delhi High Court stated that the Indian Copyright Act is required to be interpreted in consonance with the Berne Convention. This brings in the method of fixation into the jurisprudential matrix of the statutory interpretational issue at hand. 

Together, these judgements show that the courts do recognize the requirement of ‘fixation in a tangible form’ under the Copyrights Act but do not do so rigidly or de hors theoretical considerations. Instead, they follow through with importing the jurisprudence regarding the Berne Convention. Still, they do not provide an entirely consistent or adequate explanation of what constitutes permanence in the nature of fixation of a copyrightable work.

Permanence in Ephemeral Artwork

The Copyrights Act denies copyright infringement if the artwork is ‘permanently situated’ in a ‘public place’ under Section 52(t) of the Copyright Act. As temporary artwork has not been categorized anywhere, it could be assumed that Section 52(t) would also allow inclusion of ‘work of architecture’ stated in Section 2(c) of the Copyright Act as well. Any temporary art installations would also have the similar traits as that of a work of architecture like ‘structure’ having an ‘artistic character’. 

Temporary art-work due its obvious nature of being ephemeral, cannot be said to be ‘permanently situated’. The only protection that can be granted to such artisans is to expand/clarify the scope of ‘permanence’. It is still unclear due to a dearth in the statutory provision as to what ‘degree of permanence’ is required under ‘fixation in a tangible form’. There is a need for further clarity as to what could be the prescribed time period under fixation of any artwork to be considered as sufficiently permanent. This definition would be applicable to furthermore ambiguous copyrightable artistic work like sand-art, tattoo art, face/body makeup, food plating etc. 

Conclusion

Although the requirement of ‘fixation in a tangible medium’ is recognized, I would venture to say that the courts have largely focused on the latter part of ‘tangibility’ and somewhat disregarded the equally germane demand of ‘fixation’. Conservative interpretation of the requirement, for which there is enough precedent and warrant, means many new-media artists will lose out. Jurisprudentially though in my opinion, it is possible for a court to proceed on a more expansive interpretation. 

End Notes:

[1] Indian Performing Right Society Ltd. and Ors. Vs. Aditya Pandey and Ors. [CS(OS) No.1185/2006 & IA No.11203/2016]

[2] MRF Limited Vs. Metro Tyres Limited, [CS (COMM) 753/2017] 

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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