Copyright law never ceases to surprise us with its complex yet interesting issues that affect our day to day lives. About a week ago, the IP world was flooded with news that pictures of the Eiffel Tower taken at night would amount to infringement of copyright, however pictures taken during the day wouldn’t violate provisions of the copyright law in France. The European Union in 2001 issued a directive with respect to copyright law stating that photographs of buildings in public spaces can be taken free of charge and that it would not amount to copyright infringement of the architectural work. However, since this was an optional rule, some EU nations like France and Belgium chose to do otherwise.

The company that operates the Eiffel Tower confirmed this news on their official website. They clarified that that day time photographs of the Eiffel Tower are rights free, however, permission needs to be sought from the “Société d’Exploitation de la Tour Eiffel” for night time photographs because the various illuminations are subject to author’s rights as well as brand rights. As a result, posting pictures of the Eiffel Tower with these illuminations at night time will amount to copyright infringement and a penalty is likely to be levied for the same.

The position of law in India on this point hasn’t been deliberated and the law doesn’t seem to provide adequate protection to works of architecture. The copyright law includes works of architecture under the head of artistic work and clearly states that copyright subsists in the artistic character and design and does not extend to processes and methods of construction.

Section 52 of the Copyright Act deals with fair use and the clauses relevant to architectural work state that the following would not amount to infringement,

  • the making or publishing of an artistic work, if such work is permanently situate in a public place or any premises to which the public has access
  • the making or publishing works of architecture or the display of works of architecture
  • the inclusion of an artistic work in permanently situate in a public place or any premises to which the public has access in a cinematographic film
  • any other inclusion of artistic work in a cinematographic film, if it is the background or incidental to the principal parts in the film

This implies that a tourist taking and posting a picture of an architectural work on social media, publication of photos in magazines, use of such work in films or by any other means will not make a strong case for copyright infringement. The rights provided in Section 14 of the Act to reproduce the work, communicate it to be public, reproduction in a cinematographic film or issue copies of the work, seems to be lost in light of the exceptions.

Further, Section 59 states that no person can obtain an injunction or restrain someone from constructing a building or even ask for demolition of the building if there has been an infringement of copyright. The only remedy in such cases will probably be damages.

The copyright law doesn’t afford much protection to architects and works of architecture and every possible scenario falls under the ambit of fair use. So should architects still protect their blueprints, sketches and design? Even in the given scenario, it is advisable for architects to file a copyright application, to be able to make a prima face case in the event of a suit for infringement.

Also, there could be scenario where a reputed builder has built a gated community with a one of its kind layout and a competitive builder is distributing pamphlets containing exactly the same layout to his potential buyers. This would make out a clear case of copyright infringement and since the construction of the building has not even begin, the actual owner of the copyright might have a good chance in an infringement suit.

In my personal opinion, sufficient protection should be provided to works of architecture for the reason that the purpose of including them in realm of copyright is defeated and with respect to featuring works of architecture in cinematographic films, due credit should be given to architects for inclusion of their work, if not more.

This article has been authored by Nikita, an IP Law practitioner.