Statutory right Vs Constitutional right: A discussion about the work of architecture

Do you know a building, structure, tower, bridge, etc. are protectable under the Intellectual property Law? Look at these famous buildings, the “Campo Volantin Bridge” in Spain is a copyrighted work of an architect named “Santiago Calatrava”; the architectural landmark “Dubai Frame” in Dubai is a copyrighted work; the “Akshardham Temple” in Delhi is a copyrighted work, and last but not the least, the demolished “Hall of Nation” building in Delhi was also a copyrighted work of architect namely Raj Rewal.  

Interestingly few iconic buildings are also trademarked; the “Taj Mahal Palace Hotel” in Mumbai was the first building of India to receive trademark; the Ismail Building in Mumbai’s iconic Flora Fountain area is also trademarked. Thus, an architectural work can be protected under the head of copyright as well as trademark in the form of a picture in a logo. However, protection of buildings under Trademark Law is confusing and raises serious doubts regarding its implications.

This article will elaborate upon the copyright over the work of architecture and analyze the conflict between rights of architects and the rights of landowners on which the work of an architect is built.

Architecture! In its general sense are matters of paramount concern to the nation at large. Our society and architecture have a profoundly interdependent relationship; it plays more than just an aesthetic role in society. For example, architecture performs invaluable utilitarian functions: intelligent and creative architectural design makes everyday tasks infinitely easier, further, it also promotes scientific advancement, etc.[1] Importance of architecture has led some European nations namely France and Belgium to propose and extend the copyright protection on the work of architecture. These two member countries of the Berne Convention 1886 were the first nations to propose the inclusion of protection for architectural work in the said convention.

The Berne Convention of 1886, mainly known for the protection of literary and artistic work, mentions under Article 2(1) that the expression “literary and artistic work” shall also include “architecture” work.[2] India which is one of its members has amended its Copyright Act, 1957 in the year 1994, to include the “work of architecture” under the meaning of “artistic work”.[3] Hence, it would be correct to say that before 1994, in India, copyright protection was not offered to the work of architecture. 

Now, before moving ahead let me tell you the legal definition of “work of architecture” according to the Copyright Act, 1957. The said expression means “any building or the structure having an artistic character or design, or any model for such building or structure”.[4] Also, Section 13(5) of the said Act provides that the “work of architecture copyright shall subsist only in the artistic character and design and shall not extend to process or methods of construction”. Further, the “author” concerning an artistic character and design would be the “artist”.[5] Henceforth, from these all bare provisions of the said Act, it would be correct to say that the artist’s copyright only subsists in the artistic character and design through any tangible medium of expression, including a building, architectural plans or drawings, models and it doesn’t extend to the process or methods of the construction of any building or structure, tower, bridge, etc. Let us understand it with an example, suppose an architect ‘X’ designed the Akshardham Temple and ‘Y’, a builder, built that temple according to X’s design. Now here, in this case, the copyrighted “work of architecture” of ‘X’ would only subsist in the design he created not on the process or methods of construction of that temple which ‘Y’ has carried during the execution of that design. Further, if some person named ‘Z’ tries to reproduce the architectural work of ‘X’ without his consent, then that would be considered as infringing of the X’s copyright piece of work.

However, the interpretation and application of the law are not as easy as it sounds, given the nature of architectural work, the rights of the artists are subject to more limitations as compared to any other work. Let me elaborate it with an illustration, suppose a person ‘A’, the owner of land wanted to build a house/building on his land. He went to an architect ‘B’ to create a design for his house/building to which ‘B’ agreed. ‘B’ created the design in exchange for proper consideration from ‘A’. Later, ‘C’, the builder constructed the house for ‘A’ as per the design of ‘B’. After a few years, ‘A’ sought to make certain modification in his house/building designed by ‘B’. However, for such modification ‘A’, did not approach ‘B’ and modified his building designed by ‘B’, without the consent of ‘B’. Now, the issue which arises here is that the modification made by ‘A’ (the owner of land & house/building) without the consent of ‘B’ (the architect), will it amount to copyright infringement of B’s work or can we say that the ‘B’ is having the right to object to the modification of their work by the owner ‘A’ of the house/building? Also does the copyright of architect ‘B’ over his work would supersede the property right of ‘B’ over his house/building?

The said Act of 1957 doesn’t strictly reflect any provision concerning the situation above mentioned in illustration. Howsoever, the Delhi High Court has tried to overcome this issue in its latest judgment namely Raj Rewal vs. Union of India and Ors.[6] It is rightly said that the court provides the actual interpretation to the law made by the legislature and this is what makes Raj Rewal case important because it provides the scope of Section 57 of the said Act. 

The facts of the case were pretty simple like the above-mentioned illustration, the dispute was between Raj Rewal (plaintiff), the architect of the Hall of Nation-building in Delhi and the respondents were the actual owners of that property on which the building was constructed. The said building was demolished by the respondents without the consent of the plaintiff. Thereafter, the plaintiff contended before the court, that the act of respondents derogated the plaintiff’s ‘special rights’ mentioned under Section 57 of the said Act and prayed to restrain the owner from demolishing the said building and also a reconstruction of that building following the original architectural plans or drawings created by plaintiff.

The court observed that Section 57 of the said Act, generally states about the moral or say special rights, an author has over his/her work. These rights are different from the economic rights mentioned under Section 14 of the said Act. The special rights protect the author’s work of paternity and also his/her right of integrity[7] whereas the economic rights mainly authorize the author of a work to do something positive.[8] It was also observed that the said Act doesn’t make any distinction between the medium on which the artistic work is executed; thus even if the said medium is land/property/building belonging to another, the artistic work would subsist.[9]

Further, in the case of Meikle vs. Maufe[10], wherein it was held that that though the building owner is the owner of the plans prepared by the architect, the architect owns the copyright to the plan and also to the design embodied in the owners building. The building owner may not, therefore, reproduce the plans or repeat the design in a new building without the architects express or implied consent, on the contrary, an architect is free to reproduce the same design or plans to another building having a different owner. Now, here the question arises and left unanswered is, whether the building owner could not without breach of copyright, do the extensive modification or reconstruction of his building? So, let me apprise you with the same Raj Rewal case wherein the court has referred the above-discussed case as well as tried to answer the question in issue with two perspectives.

The Two Perspectives-

There exist two perspectives to deal with this issue in question, one perspective from the side of the artist and another from the owner of the building. Here, I will discuss both of them simultaneously and will understand which perspective does law follow in these circumstances.

Firstly, from the artist perspective, it is a fact that art is a transformation of thoughts or ideas of an artist to a work created by them and a work of architecture is art on canvas[11] because the canvas, without the art has no or very little value. An architect, being an artist, gives births to something tangible, and being emotionally attached with that is quite normal and understandable. The destruction of their creation is bound to cause them disheartenment and dismay. Now, when we see our issue in question from this perspective it would envisage that the building owner should take consent from the architect before doing any sort of modification, or reconstruction to his building. However, it was quoted by the U.S. Supreme Court Judge namely Sonia Sotomayor that, “we apply the law to the facts” not the “feeling of the person involved to the facts”.[12] This same quote was cited in Raj Rewal case also and judges also observed that artists’ perspective is not correct in the eyes of the law.

Secondly, from the owner of the building perspective, it can be observed that there is different legislation that protects the ownership of a property or building. A work of architecture transformed into a building is only attached to the land or any immovable property. Such land may or may not be of the author of the architectural design and such land has also different value without constructing any building on it. So, from this, it could be understandable that the work of architecture just acts as an add-on to the building in construction on an attached land/property of any owner.

Now, let’s understand the law behind this perspective. The artist of an artistic work of architecture has a statutory right over that designed building through the Copyright Act. However, the right to property is not only a human and common law right[13] but also a constitutional right enshrined under Article 300-A of the Constitution of India. Further, the preamble of the Copyright Act focuses to amend and consolidate the law relating to copyright, not the law relating to a property, and none of the provision thereof can thus be construed as affecting a right in the property of any owner. The general observation of law provides that Constitutional law always prevails over that statutory law and therefore, the right to property guaranteed under the Constitution shall prevail over copyright law. Howsoever, unless a right to exclude the owner from their property is not expressly provided in the said Act, the artist cannot exclude the owner to grab the copyright.[14] So it can be observed that, if the artist is allowed to prevent the modification of the building by the owner of that building, it would amount to a restriction of the owner’s constitutional right to deal freely with their property. 

Now going back to Section 57 of the Copyright Act, which mentions that the distortion, mutilation and modification of the work should reflect as making the work look, appear, be seen, as something different from what the author had created and damages the honour and reputation of the author. The principle is that the work should not be rendered imperfect, affecting the honour and reputation of the architect (artist). Section 57 of the said Act states that failure to display work is not an infringement of special rights. Therefore, the author’s special rights must be read harmoniously with the constitutional right of the owner of the property to avoid conflict between both the laws.

Hence, it can be concluded that such entitlement of the owner of the building to raise additional construction or modification cannot be objected by the artist of the original building on the grounds of such additions, distortion, mutilation, or modification of his work by the owner of such building. The only relief to an artist under Section 57 of the said Act is that he can restrain the owner of the building from claiming the modified work also to be of the artist who had originally designed the building. This is because the new modification of the building by its owner might hamper the honour and reputation of the original artist of that building.

There is a need for clear statutory rules on the scope of moral/special rights in architectural works as well as in artistic work. Perhaps, the issue may be resolved to an extent if some moral obligation is also put on owners of land to consult the architect in good faith before demolition or modification of the building. Such provisions do exist in Australian Copyright Regulation 1969, a reference may be made to their law for a better understanding, till then Raj Rewal case comes as a rescue to such future issues. 

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  [1] Raphael Winick, Copyright Protection for Architecture after the Architectural Works Copyright Protection Act of 1990, 41(6) Duke L.J. 1598, 1599-1600 (1992)

[2] The Berne convention, 1886.

[3] The Copyright Act, No. 14 of 1957, § 2 (c) (ii) (1957).

[4] The Copyright Act, No. 14 of 1957, § 2 (b) (1957).

[5] The Copyright Act, No. 14 of 1957, § 2 (d) (iii) (1957).

[6] 

260 (2019) DLT 190.

[7] Amar Nath Sehgal vs Union of India And Anr. 117 (2005) DLT 717.

[8] Elizabeth Verkey, Intellectual Property 88 (Abhinandan Malik ed., Eastern Book Company 2015).

[9] Raj Rewal Vs. Union of India and Ors. 260 (2019) DLT 190.

[10] (1941) 3 ALL ER 144.

[11] Supra note 9.

[12] Maclean’s, We apply laws to facts; we don’t apply feelings to facts. Maclean’s (July 14, 2009), https://www.macleans.ca/general/we-apply-laws-to-facts-we-dont-apply-feelings-to-facts/.

[13] Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Ltd. (2007) 8 SCC 705.

[14] Supra note 9.