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Durga Puja Pandals To Be Pulled Down Over Copyright Infringement?: To Be Or Not To Be

Most people have heard the phrase 'Pujor Gondho' (meaning the essence of puja), and every Bengali (like me) can vouch for the fact that it is as real as the fact that the earth revolves around the sun. The moment sharat (autumn) seeps in, every Sarbojonin (colony) of mostly West Bengal, Tripura and Assam, gets their skilled artisans on board to create life-size replicas of themes both sacred and profane:
Dakshineshwar Temple, Burj Khalifa, Titanic, Covid-19 and the list is endless. Though temporary in nature, these pandals reflect immense artistry skills. It might be an interesting endeavor to view these pandals through the lenses of intellectual property rights- meaning does these pandals enjoy copyright protection, or more interestingly since they reflect already 'existing works/themes', can they be held accountable for copyright infringement?

Intellectual property can be ascertained on any asset or creation produced in an intangible form, which is the outcome of any human being's creative mind. Such expression of creative and original thought which can be categorized as literary, artistic, or dramatic work is brought under the Copyright Law. In essence and in practice, it translates to the fact that the law vests exclusive rights on the authors/creators of any literary, artistic, or dramatic work against 'any duplication or reproduction' of their work, 'regardless of the uniqueness or artistic impression of the work in question'.[ii]

In the Indian context, the Copyright Act of 1957[iii], (hereinafter referred to as "the Act"), stipulates the legal rules and principles governing the protection of original expression of ideas, not conferring to only traditional modes of production, reproduction, or distribution, but also extends itself to literary, artistic, and dramatic work.

However, the point of contention arises with the fact that with the fast-developing world, new forms of artistic expressions are ever evolving- be it sand-art, ice sculptors or the puja pandals. The legal framework, as it stands today, paves the way for a dichotomy in relation to the protection of such newly forms of artwork.

While the traditional interpretation of art, to a great extent, proffers to an idea of 'permanence' or 'tangibility', which includes the lyrics of a famous song that we keep humming all day or our favourite childhood cartoon character that we longed to watch after coming back from school-all of them enjoys copyright protection.

Nonetheless, with an ever-progressing world, human intellectual and creativity introduces various forms of art which are mostly brought under the concept of transience in time and are not permanent or conservable in nature-like the Padma Shri Award winning sand art by Sudarshan Pattnaik on the Puri beach[iv], the Ice Sculpture Association of Ladakh[v], multiple award-winning Calcutta' Baghbazar Sarbojonin's 'Vatican City-themed' puja pandal[vi], and many alike.

These impermanent forms of art being are usually characterized as the 'ephemeral art', since they are transitory in nature and cease to vanish after the moment for which they were ideated passes. The only non-transient component attached that can be attached to them is constant change.

Ephemeral Art and the Legal Understanding

Having being illustrated the idea of ephemeral art, and parallelly reading the statutory provisions of the Act, it can be advanced that such impermanent artistic work may naturally be brought under the ambit of the copyright act. 'Work' as is defined in Section 2(y) is defined as 'a literary, dramatic, music, artistic work, cinematograph film, or a sound recording.'[vii] Further, 'artistic work' also finds its meaning within Section 2(c) which reads:
  1. 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;
  2. a [work of architecture]; and
  3. any other work of artistic craftsmanship.'[viii]

It is in this light of these rules, it can be interpreted that impermanent work, or more specifically, puja pandals can be inferred to be artistic work, as the definition of artistic work is comprehensive and descriptive in nature, and is not restricted to sculptures, cartoons, drawings, maps, etc. Puja pandals being an antithesis of permanence of creation, needs to be analysed with respect to 'fixation' in law.

Legislatively, any work as defined in the Act, which is 'original' and 'tangible' in nature, may classify to be copyrightable, notwithstanding the fact if it is artistic in nature. This concept of fixation can be traced to the Berne Convention [ix] and the Rome Convention.[x]

A plain reading of Article 2(2) of the Berne Convention suggests that for fixation to be a prerequisite for any work to be eligible for copyright protection, should be a matter to be decided by the municipal legislation of the signatory states.

The interpretation of the Indian Copyright Act on fixation can be argued to be in consonance with Berne Convention, as was in the case of MRF Ltd. v. Metro Tyres Ltd.[xi]. Consequently, in the case of Emergent Genetics India (P) Ltd. v. Shailendra Shivam, the court specifically ruled that in India, fixation is not a prerequisite for a work to qualify for copyright protection.[xii]

However, certain other countries like the United Kingdom and United States of America, does rule out that copyright does not subsists in an artistic work unless it is recorded in writing or other such forms.[xiii] It further mandates that such a recording must be sufficiently permanent to last more than just the transitory period.[xiv]

Therefore, prima facie and has been enunciated above, puja pandals stands to be qualified for copyright protections. However, a fundamental contention arises in this regard, since there is a grey area of law wherein neither the statutory provisions nor any judicial precedence, to this day clearly fails to decide if impermanent work that lacks in fixation in a tangible manner shall qualify for copyright protection or not. It is only with respect to dramatic work, that the Act has mandated fixation as a prerequisite. [xv] Certainly, a puja pandal. Howsoever, cannot be classified as dramatic work.

Subsequently, a further reading of section 14(c) of the Act, that deals with the scope of copyright for artistic work, allows 'reproduction of the work in material form, which includes storing and depiction, communication of the work, issuance of copies, inclusion in cinematograph films, adaptations of work, etc.'[xvi]

While the prima facie coverage and as per the analysis above, fixation in tangible form is not a mandatory requirement for impermanent artistic work to acquire copyright right protection, however, the abovementioned section does lay down a mandate for a material form of expression of the artistic work. [xvii]

Analysing the section further, I intend to interpret that the puja pandals, notwithstanding its transience nature, is a material form of expression and therefore, qualifies the requirement envisaged in Section 14(c). An illustration to better understand this situation is- hypothetically Calcutta's Sreebhumi Sarbojonin decides to repeat its Burj Khalifa themed pandal next year too.

Since every year after the end of Puja, the pandals are taken down, it will hence require a renewal/ reconstruction by the artisans again next year. By that understanding, it will fulfil both the criteria's of 'reproduction in material form' as well as the 'tangibility' arena. But the contestation ceases to persist, for neither the statutes nor the judiciary has proffered any explanation that discusses the scope of permanence nature of artwork-either in material fixation or with regards to tangibility.

In the absence of any specific legislative coverage for providing copyright to impermanent work, the law must first recognise the scope of existence of copyright in impermanent work and by that argument, it must explicitly include impermanent work within its meaning of 'artistic work'.

While certain artists may benefit from the said proposition, as that would enable them for licensing their work either voluntarily [xviii] or compulsorily [xix] thereby holding room for licensing their work for commercial purposes, I am of the opinion that certain ephemeral art like the puja pandals must be kept outside the ambit of copyright protection lest it may create an ambiguous situation.

In saying so, what I intend to convey is that, say hypothetically ten years down the lane, a xyz Sarbojonin in Assam decides to have a Burj Khalifa themed pandal and later is sued by Calcutta's Sreebhumi, for the latter has already themed a similar pandal, especially when none of these Puja committees constructs these pandals for any commercial purposes. It would be as bizzare as to say that no one can feature their sketch of Burj Khalifa on Instagram, because someone has already posted a similar sketch on their profile before them, and the principle of 'fair use' may also be invoked here.

Can the Original Authors of the 'Themes' Sue for Copyright Infringement?

Another interesting aspect to analyse is that whether the original owners of the theme can hold the puja committees liable for copyright infringement, since they are producing replicas of their properties? Meaning, can Emaar Properties sue Sreebhumi Sarbojonin for having a Burj Khalifa themed pandal? In answering this question, looking at the doctrine of the idea-expression dichotomy, as was laid down in the R.G. Anand case[xx], it may appear on the surface that such puja pandals are liable for copyright infringement.

A similar situation did arise, when J.K. Rowling and Warner Brothers filed a petition of copyright infringement against a puja committee organizer of Calcutta's Salt Lake, for replicating the Hogwarts Castle as their pandal that year. [xxi]

While the Delhi Court dismissed the petition, however it directed the puja committee to submit an undertaking that it shall make no further use of the characters once the puja is over and that any such use of any character from Rowling's book in future would require prior permission from the author.

The Court's sentiment is clearly evident that such replicas or themes does attract copyright infringement as Justice Kaul ruled that:
"(organisers) in future to model their pandals on any of the subject matter only with the leave and liberty of the authors". [xxii]

I am not sure if Emaar Houses have sued Sreebhumi Sarbojonin for copyright infringement neither did James Cameron sue the Bagha Jatin Sarbojonin for replicating the sinking Titanc ship.

While it is evident that to sue or not such puja committees for breach of copyright, depends entirely on the respective authors, I am of the opinion that since the Sarbojonin is a group of people from a colony who collect funds from the people of that very colony for constructing the pandal marquee and fund for all the rituals, without any commercial benefit, they may be held as an exception to the law.

I fail to see any difference between these themed-pandals and a father hosting a Harry Potter-themed birthday party for his children. Though it would be bizarre, but by that argument, every father must seek prior permission from J.K. Rowling before hosting such parties.

Conclusion
For the lack of any statutory provision and judicial precedents, there lies a lacuna in the law with respect to subsisting copyright protection in various forms of ephemeral art. While such forms of impermanent art may be a recent development, albeit historically propagating phenomenon,[xxiii] it is clear from the arguments above that the legislative and judicial intent is to prioritise expression over other attributes.

Thus, there is a need for an urgent holistic understanding of the matter by the law makers to mitigate the existing lacuna and meanwhile, on the basis of the interpretation of the existing provisions, as enunciated above, ephemeral art may 'manage' to enjoy copyright protection but in a limited sense. I also hope that certain forms of impermanent art like the puja pandals may be treated as an exception while deciding on the matter.

End-Notes:
  1. Shakespeare, William, 1564-1616 author. The Tragedy of Hamlet, Prince of Denmark. [London]: The Folio Society, 1954.
  2. Banerjee, Ananyaa. "Copyright Protection of Impermanent Art." Copyright - India, 6 Sept. 2022, www.mondaq.com/india/copyright/1227748/copyright-protection-of-impermanent-art.
  3. The Copyright Act, No.14, Act of Parliament, (1957).
  4. Kaul Apoorva. "Earth Day: Sudarsan Pattnaik Makes Beautiful Sand Art To Spread Message About Environment", 2022, https://www.republicworld.com/entertainment-news/whats-viral/earth-day-sudarsan-pattnaik- makes-beautiful-sand-art-to-spread-message-about-environment-articleshow.html
  5. Bhura Sneha. "Artists in Ladakh are dreaming and carving alchemies in ice", The Week, 2022, https://www.theweek.in/theweek/leisure/2022/03/06/artists-in-ladakh-are-dreaming-and-carving-alchemies-in- ice.html.
  6. Roy, Anirban Sinha. "Durga Puja 2022: North Kolkata Streets Decorated With Stunning Alpona | See Pics." India Today, 30 Sept. 2022, www.indiatoday.in/cities/kolkata/story/kolkata-news-durga-puja-2022-durga-pandal-street-art-tant-cottage-industry-alpona-2006588-2022-09-30.
  7. S.2(y), The Copyright Act, No.14, Act of Parliament, (1957).
  8. S.2(c), The Copyright Act, No.14, Act of Parliament, (1957).
  9. Art. 2(2), Berne Convention, (1971)
  10. Rome Convention, Secretary-General of the United Nations, 496 U.N.T.S 43.
  11. MRF Ltd. v. Metro Tyres Ltd., (2019) 79 PTC 368.
  12. Emergent Genetics India (P) Ltd. v. Shailendra Shivam ,(2011) 125 DRJ 173.
  13. Verkey. Intellectual Property: Law and Practice. Eastern Book Company, 2015.
  14. Geiger, Christophe, and Elena Izyumenko. "Freedom of Expression as an External Limitation to Copyright Law in the EU: The Advocate General of the CJEU Shows the Way." SSRN Electronic Journal, Elsevier BV, 2018, https://doi.org/10.2139/ssrn.3293735.
  15. S.2(h), The Copyright Act, No.14, Act of Parliament, (1957).
  16. S.14(c), The Copyright Act, No.14, Act of Parliament, (1957).
  17. Kartar Singh Giani v. Ladha Singh, 1934 SCC OnLine Lah 277: AIR 1934 Lah 777.
  18. S.30, The Copyright Act, No.14, Act of Parliament, (1957).
  19. S.31(a), The Copyright Act, No.14, Act of Parliament, (1957).
  20. RG Anand v Delux Films AIR 1978 SC 1613.
  21. Chandrasekharan, Sumathi. "Potter-troubles Over for Puja Organisers." SpicyIP, 14 Oct. 2007, spicyip.com/2007/10/potter-troubles-over-for-puja.html.
  22. Ibid.
  23. Fontaine, Nancy. "Impermanent Art." Dartmouth, 21 Oct. 2022, home.dartmouth.edu/news/2011/02/impermanent-art.

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