THE CUSTODIAN OF CULTURAL ARTS AND INTELLECTUAL PROPERTY RIGHTS

THE CUSTODIAN OF CULTURAL ARTS AND INTELLECTUAL PROPERTY RIGHTS: IPR Club OurLegalWorld

INTRODUCTION

“Culture is the name for what people are interested in, their thoughts, their models, the book they read and the speeches they hear” the famous quote by Walter Lippmann. Music, arts, theatre, creative writing, photography, modelling, dance etc. are examples of cultural arts that aid in the development of the mind and body, improve feelings and thoughts, and reflect and express our society’s norms and values. Through the discovery of creativity, cultural arts help to explain the world in which we live. They’re multidisciplinary and cross-genre, with a focus on the process rather than the final products. The arts assist us in understanding our society and ourselves. Though we can say that culture represents a society. This highlights the importance of the protection of cultural arts by a code of law. Intellectual property refers to the idea that certain products of human intellect should be protected in the same way as physical property, also known as tangible assets, is protected. The most common IPRs include patents, copyrights, marks and trade secrets, designs and geographical indications. Intellectual property laws are in place to protect all cultural and creative works. A good business climate is created for firms and investment in the cultural and creative sectors, allowing them to thrive. IP rights can be enforced by bringing actions to the civil courts or through criminal prosecution. But criminal proceedings do not apply to patent and design infringements.   

HISTORICAL BACKGROUND & IMPORTANCE OF IPR.

“You cannot steal somebody’s intellectual property, Law and Justice protect”-Bikram Choudhury. This statement shows how important the role of intellectual property is. The existing worldwide system for intellectual property protection was formed in response to the perceived needs of technologically advanced civilization during the western industrialization era. However, in recent years, indigenous peoples, local communities, and governments, primarily in poor nations, have asked that traditional knowledge systems and cultural art forms be given the same level of protection.

Also Read: NFT AND THE UNDERLYING ISSUES:- IPR Club

To create a stunning piece of work, an artist relies on ideas. Ideas can take longer to spark in the mind of an artist, and making an attractive piece of art takes time as well. Many artists rely on their work for a living, and anyone who dismisses it puts their livelihood at risk. As India being a country of diversity, a vast variety of cultural art forms are present. Many of these cultural art forms itself represent a particular society, some other societies use these cultural arts for their livelihood, some for their survival and so on.

The Intellectual Property law acts as a custodian and safeguards the cultural art and the artists’ work against those who steal it and profit from it. It is very important to make societies familiar with the rules set forth by intellectual property law. Intellectual property provides a property right flowing to creators or purchasers of the intellectual labours of others. The property right is always limited by certain societal interests that make the monopoly less complete. For example, the long-run duration of ownership that a copyright owner enjoys is significantly limited by fair use. The objective of Intellectual property rights is to promote the progress and protection of science and useful arts.[1]

COPYRIGHT

Copyright protects the rights of authors who create original works in the field of literature and arts. The basic aims of copyrights are the protection of artists’ rights, the enhancement of creativity, the encouragement of scientific and cultural progress, and the provision of information and intellectual assets to the general public. Copyright is a type of IP that belongs to the content creator. Authors and creators can control and obtain rewards from the use of their creative works, as well as prohibit unauthorized use of it. The right holders, or those to whom the rights have been transferred, have exclusivity on some uses of the works. A malfunctioning copyright system or too tight copyright protection might hamper creation. A functioning copyright system needs to be based on a profound and up-to-date understanding of value-creation processes as well as the roles of their actors. Copyright protection for example should not prohibit “follow-on creation”, meaning creation based on past work. Copyright also has very important economic aspects.[2]

Every work that is rendered inaccessible due to copyright limitations restricts public access to cultural material. This can be achieved through various means, including a carefully designed scope of protectable subject matter and a limited term of protection for works under copyright protection. Copyright creates an exclusion mechanism to limit the ability of individuals to exploit creative works.[3]

 PATENT

A patent is an exclusive right awarded for an invention, which is a product or a technique that offers a new technical solution to a problem or provides a new way of doing something in general. Technical information concerning the innovations must be given to the public in a patent application in order to get a patent[4]. It is not easy to get a patent for cultural arts even though it is not impossible. Cultural arts can also be patented when arts mix up some fresh and unique innovations by the creator. Patent can ensure legal protection to the specific art. Patents can be divided into three (i) Utility Patent (ii) Design Patent (iii) Plant Patent.

TRADEMARK

The significance of a trademark in cultural appropriation is analogous to the two sides of a coin, on the one hand, brands use trademark registration to protect their merchandise based on cultural characteristics, and on the other hand, trademark law plays a significant role in compacting cultural appropriation. When contemplating cultural appropriation instances, it’s useful to explore the types of products that can be used as targets. They include Dance, Intellectual property, Artifacts, Clothing & Fashion, Language, Music, Food, Religious symbols, Decorations, Medicines, Makeup, Hairstyle, Tattoos, Wellness Practices etc. Cultural appropriation means the unacknowledged or inappropriate adoption of the customs, practices, ideas, arts, etc. of one society by members of another and typically more dominant people or society.

THE BENEFITS OF IP RIGHTS IN THE MODERN ERA

Innovative ideas have great untapped potential to turn your innovations into products & services. It is necessary to protect the IP properties until any third party is unlawfully infringed. Protecting their exclusive cultural rights is very important for the creator. Protecting their cultural arts from being taken away from society by competitors, resulting in constant growth and prosperity. IP act encourages the idea by securing them.

CASE STUDY

STEWART v. ABEND[5]

Fact: Cornell Woolrich wrote the short story “It Had to Be Murder” and sold the rights to it to Popular Publications, Inc., who published it in their Dime Detective Magazine (February 1942 issue). Three years later, Woolrich sold the film rights to a production firm and agreed to renew them when the copyright (at the time) of 28 years expired. Patron Inc., a production company founded by actor James Stewart and director Alfred Hitchcock, purchased the film rights for $10,000 in 1953. The short story was later adapted into the critically acclaimed film Rear Window (1954), directed by Alfred Hitchcock and starring Jimmy Stewart. Woolrich died in 1968, before his 28-year copyright expired, and his executor, Chase Manhattan Bank, took over control of the literary rights. Chase sold the film rights to literary agent Sheldon Abend for $650. Abend instead sued Stewart when the movie was broadcast on television, refusing to honor Woolrich’s original agreement to renew the copyright and assign it to the owner of the movie rights.

Opinion of the Court: The question was whether the owner of a legal derivative work infringes on the successor copyright owner’s rights by continuing to distribute and publish the derivative work within the pre-existing work’s renewal term. The assignment was an unfulfilled contingency that died with the creator, according to the Court, and the successor can prevent the derivative work from being used in the future. The Court justified its ruling by pointing out that when the work’s license is up for renewal, control of the work reverts to the author—or the author’s successors. This safeguards the author (and his or her successors) from losing out on the work’s unexpected worth.

Conclusion: In this case, the supreme court of the United States clarified the rights that copyright protection provided to its users, which occupies an important place in the history of art laws[6].

CONSTITUTIONAL VALIDITY

Article 29(1) of the Indian Constitution states that, “Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script, or culture or its own shall have the right to conserve the same”[7]. Hence, indirectly intellectual property rights are used as a tool for the proper enforcement of fundamental rights.

OPINION & SUGGESTIONS

Though the Intellectual Property Right was brought to streamline and protect the cultural arts and heritage, still there lies loopholes with respect to the enforcement of such law. To conserve cultural arts, we employ a defensive protection regime. The Law must be authorized, & circulated through different communities or societies. Cultural rights should be recognized, and the law should be free of originality and fixation norms. The government should create a database of different cultural rights which represents society as a whole or a person individually with the help of local administration or panchayats. Seminars and meetings should be conducted about Intellectual Property Rights to bring awareness to remedies available to them under Intellectual Property Law. It will reduce the chance of exploitation of backward and uneducated persons or society. Judicial delays in IPR disputes, the least priority is given to adjudication of IP matters, this situation should be changed, and give equal importance to Intellectual Property Rights. The use of digital technologies in this modern era can improvise this issue to an extent.

CONCLUSION

Intellectual property laws play a significant role in protecting cultural arts. The conservation of cultural arts and the enforcement of intellectual property rights have a lot to offer each other in terms of ensuring their survival, expansion, and dissemination. The protection of cultural arts with Intellectual property right as a tool empowers communities to promote their cultural art, control its use by a stranger, and benefit from its commercial exploitation. A number of countries including India have developed specific legislation for the said purpose. The Protection also stops people outside the community from acquiring intellectual property rights over cultural arts. The level of consciousness and awareness of rights from intellectual property law have gained relevance amongst the cultural communities.[8]

Written by Jeevan John (Author view is personal)


[1] Christine Steiner, Esq., Intellectual Property & The Right to Culture, Accessed on 5th July, 2022, http://www.wipo.int

[2] Nathalie Lefever, Ho Does Copyright Affect Culture, Accessed on 5th July, 2022, http://www.cupore.fi/en/information/blog/how-does-copyright-affect-culture

[3]  Nathalie Lefever, Ho Does Copyright Affect Culture, Accessed on July 5th, 2022, http://www.cupore.fi/en/information/blog/how-does-copyright-affect-culture

[4] PATENTS, Shodh Sagar, Accessed on 6th July, 2022, http://shodhsagar.com/patents.php

[5] STEWART v. ABEND, 495 U.S. 207 (1990)

[6] Accessed on 6th July, 2022, http://Itsartlaw.org/2020/12/29/art-law-in-the-supreme-court

[7] Article 29(1), Constitution of India, 1950

[8] Safeguarding Cultural Heritage through Intellectual property Rights, Accessed on 7th July, 2022, http://www.kashishworld.com