Ipr Project.docx

National Law University, Odisha

TRIPS AND ANIMAL PROTECTION (Project for Intellectual Property Rights Law)

Name: Hemant Prajapati Roll number. 2014(R)/BA.LLB./017 Batch: 3rd Year. (2015-20) Course Teacher: Prof. Amrendra Kumar Ajit.

Submitted on: February 21th, 2018.

Acknowledgements I feel highly elated to work on the topic “TRIPS AND ANIMAL PRTECTION” because of its relevance in the field of Intellectual property rights law. I express my deepest regard and gratitude for our Faculty of Intellectual Property Rights Law, Mr. Ajit sir for her consistent supervision, constant inspiration and invaluable guidance, which have been of immense help in understanding and carrying out the importance of the project report. I would like to thank my family and friends without whose support and encouragement, this project would not have been a reality. I take this opportunity to also thank the University and the Vice Chancellor for providing extensive database resources in the Library and through Internet. Hemant Prajapati

Table of Contents Acknowledgements...………………………………………………………………………..…..iii Table of Contents……………………..…………………………………………………………iv 1. Chapter 1. Introduction………………………………………………......………………...5 1.1.Meaning of Copyright.…………………………………………………………………5 1.2.Subject Matter of Copyright…..………………………………………………………6 1.3.Copyright protection to photographers ….…………………………………………...7 2. Research Objective…………………………………………………………………………8 3. Literature Review…………………………………………………………………………..8 4. Research Methodology……………………………………………………………………..9 5. Sources of data……………………………………………………………………………...9 6. Hypothesis………………………………….……………………………………………….9 7. Research questions………………………………………………………………………...10 8. Chapterisation…………………………………….……………………………………….10 9. Mode of citation……………………………………...…………………………………….10 10. Chapter 2. Copyright protection and subject matter in photographs…....….………...11 10.1.

Copyright in photographs……………………..………………………………12

10.2.

Exceptions to avoid including copyright items in certain photographs…….13

10.3.

Remedies against infringement………………………………………………..14

10.4.

Judicial pronouncements and case laws with respect to copyright in

photographs…………………………………………………………………………….15 11. Chapter 3. Copyright law on animal selfies ……………………………………………...16 3.1

Animals cannot own copyright……………………………………………….16

3.2

Identification of the author of the copyright works in photographs which a

person captures…………………..…………………………………………………………16 13. Chapter 4. The Monkey Selfie Copyright Case …………….…….……………………...17 14. Chapter 5. Application of Copyright law on animal selfies in different countries……..20 15. Chapter 6. International Copyright treaties for protecting the copyright holder of photographs …………………………………………………………………………………….21 16. Conclusion …………........………………………………………………………………….24 17. Bibliography ……………………………………………………………………………….25 A. Books…………………………………………………………………………………………25 B. Statutes……………………………………………………………………………………….26 C. International Conventions………………………………………………………………….26 D. Journals/ Newspaper Articles/ Reports.....………………………………………………...27 E. Websites…………………………………….………………………………………………..28

1. Introduction

Meaning of Copyright: Copyright is a form of legal protection given to content creators through the assignment of specific rights to works that qualify for protection.1 The main goals of copyright are to encourage the development of culture, science and innovation; to provide a financial benefit to copyright holders for their works and to facilitate access to knowledge and entertainment for the public. Copyright has been defined in Section 14 of the Copyright Act, 1957. Copyright means the exclusive right to do or authorise the doing of any of the following acts (with respect to photographs) namely: (c) in the case of an artistic work, i.

to reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;

ii.

to communicate the work to the public;

iii.

to issue copies of the work to the public not being copies already in circulation;

iv.

to include the work in any cinematograph film;

v.

to make any adaptation of the work;

vi.

to do in relation to an adaptation of the work any of the acts specified in relation to the work in sub-clauses (i) to (iv);

Explanation : For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.2

First owner: As per Section 17(b) of the Copyright Act, 1957, the photographer is the first owner of the photograph. Term of protection3: The term of the copyright for a photograph is 60 years after the date of publication of a photograph.4

1

https://www.rightsdirect.com/international-copyright-basics/ Section 14, Copyright Act, 1957 3 "The Copyright Act, 1957, Term of Copy Right (Sec. 22-29) 4 Section 25 of the Copyright Act, 1957 2

Subject matter of copyright: Copyright law subsists in: (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recordings.5 

An artistic work means:

 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;  a work of architecture; and  any other work of artistic craftsmanship.6 Copyright law protects a wide range of different types of material. 7 Examples of copyright works that are routinely reproduced in photographs are: 1. Literary works (such as books, newspapers, catalogs, magazines); 2. Artistic works (such as cartoons, paintings, sculptures, statues, architectural works, computer and laser artwork); 3. Photographic works (such as photos, engravings, posters); 4. Maps, globes, charts, diagrams and technical drawings; 5. Advertisements, commercial prints, billboards and labels; 6. Motion pictures (such as films, documentaries, television advertisements); 7. Dramatic works (such as dance, plays, mime); and 8. Works of applied art (such as artistic jewelry, wallpaper, carpets, toys and fabrics).

Copyright protection to photographers:

5

Section 13, Copyright Act, 1957 Garfinkle, Ann M; Fries, Janet; Lopez, Daniel; Possessky, Laura (1997). "Art conservation and the legal obligation to preserve artistic intent". JAIC 36 (2): 165–179. 7 http://fairuse.stanford.edu/law/us-code/u-s-copyright-act/subject-matter-and-scope-of-copyright/ 6

Photographers are considered to be copyright holders. They are dependent on their ability to control the reproduction of the photographs they create.8 It affects their income and the livelihood of their families. Even small levels of infringement such as copying a photo without permission can have a devastating impact on a photographer’s ability to make a living. Therefore, copyright infringements can result in civil and criminal penalties. Advertising, fashion, interior design and lifestyle photographers frequently include paintings, sculptures, craft items, architectural works, jewellery, clothing, toys or other artistic works in their photographs. Often, such items are protected by copyright.9

Exclusive right of the copyright owner extends to reproduction of the copyright work: Only the owner of a copyright has the exclusive right to reproduce the copyright work. 10 Photographing a copyright work amounts to reproducing it. Therefore, before a person take a photo of any copyright work, he need the prior permission of the copyright owner. Photographers who infringe a copyright may be required to compensate for the economic loss, that is, to pay the damages they have caused and sometimes also other expenses, such as legal costs.                 Harms, L. (2013). “Originality" and "reproduction" in copyright law with special reference to photographs. Potchefstroomse Elektroniese Regsblad 16(5) 1-28. 9 http://bit.ly/1NNTJRR. 10 Van Eechoud, M. M. M. (2003). Choice of law in copyright and related rights: alternatives to the Lex Protectionis. The Hague: Kluwer Law International. 8

   

Research objective Set in the international perspective or background, the broad objective of the study is to understand “Copyright law on animal selfies”. This is sought to be achieved by dealing with the subject matter of copyright law. Also, this research tries to study the recent development in this concept by studying its application in the present era.

Literature Review 1. K.D Raju, The Intellectual Property Rights & Competition Law: A Comparative Analysis (1st Edition, Eastern Law House Pvt. Ltd., 2015) This book is an exhaustive commentary on the Copyright law. The author has arranged the lecture topic-wise and in their logical order. He has included under each topic all connected provisions and explained the matter in a precise and easily understandable way. 2. P. Narayanan, Intellectual Property Law (Edition: 3rd, Eastern Law House Pvt. Ltd., 2017) This book is an exhaustive commentary on the Intellectual Property Laws. It critically analyses all the nooks and corners of the IP law and gives a deep reflection in to what went into drafting various sections of different areas of IP law. It also gives a detailed scrutiny into the amendments of the Intellectual Property Law over time. 3. V K Ahuja, Law Relating To Intellectual Property Rights (3rd Edition, Lexis Nexis, 2017) This book was useful in understanding the conventions of the copyright law specifically. It was also helpful in learning the concept of copyright law in photography. 4. Lionel Bently And Brad Sherman, Intellectual Property Law (Fourth Edition, Oxford, 2014) This book was helpful in understanding the applicability of intellectual property rights law and to study the subject matter of intellectual property law.

5. W. R. Cornish And David Llewelyn, Intellectual Property: Patents, Copyrights, Trademarks & Allied Rights (5th Edition Edition Sweet & Maxwell, 2003) This book contains the latest Supreme Court and High Court decisions on copyright law. 6. P. Narayanan, Law Of Copyright And Industrial Designs (4th Edition, Eastern Law House Pvt. Ltd., 2017) This book was useful to understand the concept of intellectual property law.

Research methodology This Project report is based on descriptive and analytical Research Methodology. The Doctrinal method is used for the research on the project work. This study is largely based on the secondary sources such as books and articles which have been primarily helpful in giving this project a firm structure. Websites, International documents and articles have also been referred. Footnotes have been provided wherever needed to acknowledge the source.

Source of data The data presented here in this project is of secondary nature owing as the data used in this project owes its origin to various journal, articles, books and websites and not any investigation, census or survey.

Hypothesis The owner of a photograph can exercise copyright over his photograph and any person who uses the photograph to copy, distribute, publicly display or create derivative works from such photograph has to get permission from the copyright owner. It is also presumed that copyright law on animal selfies differs from country to country and on the facts and circumstances of the case.

Research questions Set in the above perspective or background, the main questions which are tried to be answered by the study are1. What is the concept of copyright law on animal selfies? 2. Explain the above mentioned concept with the help of “monkey selfie copyright case”? 3. What is the applicability of the concept in different countries?

Mode of citation A uniform mode of citation i.e., 19th edition of Bluebook Citation, has been thoroughly used for citing the sources of information used in this project.

Chapterisation The research has been organized into three chapters-

The first chapter deals with the introduction of the topic, “copyright law on animal selfies.”

-

The second chapter deals with the concept of copyright law and subject matter in photographs.

-

The third chapter deals with the copyright law on animal selfies.

-

The fourth chapter deals with the monkey selfie copyright case.

-

The fifth chapter deals with the applicability of the concept of copyright law on animal selfies in different countries.

-

The sixth chapter deals with the International Copyright treaties for protecting the copyright holder of photographs.

Chapter 2: Copyright protection and subject matter in photographs. Copyright law in photographs: Photographs are protected under copyright law as artistic work under Section 2 (c) of Copyright Act 1957 in India. They have been included as an artistic work. The essential element to protect the copyright in artistic work particularly a photograph requires that the photograph must be an original work where some degree of skill and effort must have been expended on it. A photograph will have copyright protection if it has a minimal level of originality11, which requires more than “slavish copying” of the underlying material.12 If the photograph is a derivative work, the photograph must have more than trivial differences with, and must not affect the scope of copyright protection of, the underlying work. The original skill and labour involved in taking of the photograph may consist in arranging the objects photographed or in selecting the exact moment or size for a photograph of the moving object or objects. To be successful on an infringement claim, the infringing work must be substantially similar to a protectable element of the original photograph. Under the Federal Copyright Act13, photographs are protected by copyright from the moment of their creation. Photographers have the exclusive right to reproduce their photographs and control the making of copies. One has to take permission from the photographer to copy, distribute, publicly display or create derivative works from photographs.

Party who owns and controls subject matter is not a joint author: A somewhat different issue arises when a party hires a photographer to photograph subject matter that is owned or controlled by the hiring party. Generally, the parties’ relationship will be governed by whatever licensing agreement exists between the parties. However, in several recent cases, the hiring party claimed ownership of photographs as a joint author because of its ownership and control of the subject matter. A photographer may share joint authorship with a third party if the parties intend the final work to

11

Rosati, E. (2010). Originality in a Work, or a Work of Originality: The effects of the Infopaq decision. Journal of the Copyright Society of the USA. 58, 795. 12 Rosati, E. (2013). Originality in EU copyright: full harmonization through case law. Cheltenham, UK: Edward Elgar. 13 Federal Copyright Act of 1976

be jointly owned, and if each party made a copyrightable contribution to the work. If several authors are involved, then the term of protection is calculated from the death of the last surviving author. Mere ownership or control of the subject matter will not suffice. Exceptions to avoid including copyright items in certain photographs: Photographing a copyright work is considered a way of reproducing the work, and this is an act which the copyright owner has the exclusive right to do. This is why one need need to get prior permission from the copyright owner. However, there are certain exceptions since it is impossible to avoid including copyright items in many photographs.14

1. Taking photos of buildings: The exception only applies to building and does not apply to monuments.

2. Taking photos of copyright works in public places: This exception applies only: a. To certain types of works: usually, only to three-dimensional works, such as sculptures and craft; b. If the work is displayed in public: to photograph a sculpture in a private house, a permission will usually be required; and c. If the work is displayed in public permanently.

3. Taking photos to accompany news reports: Usually, copyright works may be used for the purpose of reporting a news. For example, you could take a photo of a sculpture which won a major art prize, if that photo is to be used in a news report on TV or in a media article discussing or announcing the awardwinner.

4. Taking photos to accompany a review or critique: Copyright material may be used for criticism or review. For example, if you are taking photos of cartoons for a book which reviews, critiques or analyses the works. However, one has to identify the copyright work and the name of the artist. 14

http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf

5. Taking a photo of a copyright work to advertise its sale: If you photograph a painting or other artistic work for the sole purpose of advertising its sale, for example, in an auction or sale catalogue, then a person will usually not need prior authorization.

6. Using a copyright work as a background in a photo: Example: A person publishes a photograph in a newspaper to illustrate an article concerning some official gathering. The photograph incidentally contains a sculpture in which copyright subsists. Such use is likely to be allowed since the sculpture adds no meaning to the main subject matter. Conversely, if a person would photograph the same sculpture to print it on postcards and sell them, this would be a copyright infringement.

7. Taking photos for purely private use: There is allowance to take photos without authorization, if such person uses them purely for private purposes. For example, taking a photo of a painting to post on a home refrigerator will generally not constitute copyright infringement.

Remedies against infringement: There are three types of remedies against infringement, namely, civil, criminal, administrative. Civil remedies as provided in the Copyright Act, 195715 deal with injunction, damages and accounts, delivery of infringing copies and damages for conversion. Criminal remedies16 deal with the imprisonment of the accused or imposition of the fine or both, seizure of infringing copies, and the delivery of infringing copies to the owner of the copyright.

Administrative remedies consist of moving the Registrar of Copyrights to ban the imports of infringing copies into India and the delivery of infringing copies confiscated to the owner of the copyright. Judicial pronouncements and case laws with respect to copyright in photographs:

15 16

Section 54- 62 of the Copyright Act, 1957 Sections 63 to 66, Copyright Act, 1957

1. In Leigh v. Warner Bros. Inc.17: Facts of the case: Photographer Leigh owned the photography rights of the “bird girl” cover from the book “Midnight in Garden of Good and Evil.” Leigh had been commissioned by Random House to photograph the cover and he chose the Bird Girl statue located in Savannah, Georgia’s Bonaventure Cemetery. The statue had been sculpted by Judson and one copy had been purchased and placed in a family plot in the cemetery. When Warner Brothers made a film version of the book, it included another photographer’s images of the Bird Girl statue in both the film and its promotional material. Leigh then sued Warner Brothers for copyright infringement. Issue raised: Which elements of the photograph were protectable and whether defendant infringed those elements. Held: The Court held that Leigh could not prevent Warner Brothers from utilizing the “Midnight” story. Since copyright protects only original expression and not ideas, Leigh had no copyright in the “idea” of that association. Also, Leigh’s copyright did not cover the appearance of the statute or the cemetery, because Leigh had no rights in either. Nevertheless, the Court found that material portions of Leigh’s photograph were protectable. The Court held that the film sequences were not infringing as a matter of law because they were not substantially similar to protected elements of the photograph. The Court found, for example one non-infringing sequence from the film where in contrast to the photograph, the cemetery was shrouded in fog, the Bird Girl’s head was cropped, and the image contained a Celtic cross.

17

Leigh v. Warner Brothers, Inc., 212 F.3d 1210, 1214, (11 Cir. 2000)

2. In Natkin et al v. Winfrey et al.,18 Facts of the case: “Winfrey”, a defendant had retained plaintiffs to photograph the “Oprah Show” and its guests. Winfrey then published a book containing eleven of these photographs. The photographers sued, alleging copyright infringement and claiming that they had only granted rights for the images to be used for publicity purposes. Issues raised: Winfrey argued that because she controlled the underlying subject matter, Oprah, the guests, their clothes and expression, the sets, the look and mood of the show, she was a coauthor and jointly owned the copyright in the photos with the photographers and was free to include the photos in her book. Held: The Court disagreed and held that to establish co-ownership of the photograph copyrights, the defendants must show that the parties intended to be joint authors at the time the work was created. 3. In Kesari Maratha Trust v. Devidas Tularam Bagul19 the Bombay High Court held that, publication without permission of the photographer a photo taken by him by copying it from another published material is infringement of the copyright in the photograph. 4. SHL Imaging Inc. v. Artisan House Inc.,20 the Court held that plaintiff owned copyright in its photographs of defendant’s picture frames because the images were original, and not derivative works, works for hire, or joint works. 5. Cadbury India Ltd. v. S.M. Dyechem Ltd.21: In case to determine whether there is an infringement in case of an artistic work, the Court has evolved the observer test which is based on the assumption that if the lay observer, one who is not an expert in artistic work, sees the visual and if it appears to him that the work

18

111 F.Supp.2d 1003 (N.D. Ill., 2000) (1999) 19 PTC 751 (Bom). 20 117 F.Supp.2d 301 (S.D.N.Y., 2000) 21 (2000) 1 R 125 at p. 13 19

is the reproduction of some other work then it would amount to the infringement of the artistic copyright.22

Chapter 3: Copyright law on animal selfies Animals cannot own copyright The Intellectual Property Office (IPO) indicates that under UK law animals cannot own copyright. It whether the photographer owns copyright depends on whether the photographer has made a creative contribution to the work and this is a decision which must be made by the courts. It is the amount of effort, arrangement or creative input that is made, which determines copyright. Copyright disputes involving photography are all too familiar, dating back to the 19th century. Identification of the author of the copyright works in photographs which a person captures: Copyright law provides some additional legal rights to the authors to protect their reputation and their works against certain abuses. These are called “moral rights.” One of the key moral rights is the “authorship right” or “paternity right”, which is the right to be named as the author of the work. If your photos include paintings, buildings, sculptures or other copyright works, and you or your client will be exposing them to the public (publishing, using on websites, exhibiting, etc.), then you and your client must make sure that the author’s name appears on or in relation to the work, whenever feasible and considered reasonable. If you don’t want to give an attribution, it would be prudent to get the prior permission of the author or artist.

Chapter 4. The Monkey Selfie Copyright Case 22

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=20263

Slater had been on a shoot on the Indonesian island of Sulawesi in 2011 when he left his camera unattended for a few minutes. A creatively-minded female crested black macaque seized on the opportunity to grab Slater’s camera and pose for several ‘selfies’.23 It got plenty of attention in 2011 and made it into Wikimedia Commons’ online collection.24 Slater asked that the image be removed, contending that the copyright belongs to him and citing financial loss as no one is paying royalties for use of the photo. Wikimedia asserts that since Slater did not take the photo he does not own the copyright. The camera owner, David Slater, sued Wikimedia for posting the images on its public Wikimedia Commons site.25 Slater claimed that the images were his, while Wikimedia argued that the images belonged to the public because they were not created by a human.26 Wikimedia, the non-profit organisation behind Wikipedia, has refused a photographer’s repeated requests to stop distributing his most famous shot for free because a monkey pressed the shutter button and should own the copyright.27 Since Wikimedia Foundation is a U.S. entity, under copyright law, there is no basis to grant nonhumans copyright privileges. Under the Licensing note at the bottom of the Wikimedia page, the annotation reads, “This file is in the public domain, because as the work of a non-human animal, it has no human author in whom copyright is vested.” Monkey-selfie copyright case was filed by PETA, claiming that the copyright in a selfie should vest with the Macaque chimpanzee and not with the photographer who owns the camera. It was filed in federal court in San Francisco by People for the Ethical Treatment of Animals. It seeks a court order allowing PETA to administer all proceeds from the photos for the benefit of the monkey, which it identified as 6-year-old Naruto, and other crested macaques living in a reserve on the Indonesian island of Sulawesi. The selfies were introduced as exhibits in the suit.

23

https://policyreview.info/articles/analysis/monkey-selfie-copyright-lessons-originality-photographs-and-internetjurisdiction 24 Lai, S. (1999). Substantive issues of copyright protection in a networked environment. Information & Communications Technology Law 8(2), 127-139. 25 Logue, F. (2014). Monkey see, Monkey do. Gazette of the Law Society Ireland 108(8), 27-29. 26 Sarah Fecht, U.S. Copyright Office Denies Monkeys Rights to Their Selfies, Popular Science, Aug. 22, 2014. 27 Kohl, U. (2007). Jurisdiction and the Internet: a study of regulatory competence over online activity. Cambridge: Cambridge University Press.

PETA contended that Naruto should be recognised as the copyright owner under the US Copyright Act. The Act grants copyright ownership of a ‘selfie’ to its author and PETA claims Naruto “authored the Monkey Selfies by his independent, autonomous actions in examining and manipulating Slater’s unattended camera.” Citing Slater’s own written accounts of his encounter with the macaques, the lawsuit asserts that Naruto “authored the monkey selfies by his own independent, autonomous actions in examining and manipulating Slater’s unattended camera. For his part, Slater argues his company Wildlife Personalities Ltd. is the true copyright owner as he facilitated the photoshoot. The U.S. Copyright Office has indicated that no one can copyright the monkeys’ selfies because works created by animals belong in the public domain.28 It has recently released a draft of its latest administrative manual, the first major overhaul in 30 years.29 Although the new manual does not make any major changes to copyright policy, it includes examples of types of work that are not eligible for copyrighting (but may be eligible for other forms of intellectual property protection)30, including “a photograph taken by a monkey”. The Office will not register works produced by nature, animals, or plants, or those “purportedly created by divine or supernatural beings.” The manual draft will be on review until it takes official effect around December 15, 2014. The manual is not law, but it informs future legislation and sets out how the Copyright Office makes internal decisions.31 “Because copyright law is limited to ‘original intellectual conceptions of the author,’ the Office will refuse to register a claim if it determines that a human being did not create the work,” said the US Copyright Office. The Office will not register works produced by nature, animals, or plants. Current guidelines from the US Copyright Office, state that it will only register copyright for works produced by human beings. However, PETA lawyer Jeffrey Kerr has insisted that this “is only an opinion” and the language of the Copyright Act itself does not limit protection to human authors.

28

Abby Phillip, Regulators: No One Can Copyright Animal Selfies, Not Even Monkeys, The Switch Washington Post blog 29 United States Copyright Office (2014). Compendium of US Copyright Office Practices. 3rd Edition, § 313.2 30 U.S. Copyright Office, Compendium of U.S. Copyright Office Practices, Third Edition. 31 Matthew Sparkes, Monkeys, Ghosts and Gods “Cannot Own Copyright” Says US, Telegraph

US district Judge William Orrick had been asked by lawyers from People For The Ethical Treatment of Animals (PETA) to award Naruto monetary damages for copyright infringement by British wildlife photographer David Slater. He held that there was no indication in the Copyright Act that the protection of the law in this area should be extended to animals. In 2014, US copyright regulators agreed with Wikipedia's conclusion and said that a "photograph taken by a monkey" is unprotected intellectual property.32 That's because, under US law, the intellectual property rights to photographs belong to the person who took them. Naruto is not a person under the law and, therefore, not entitled to own property. However, David Slater has decided to donate 25% of future gross revenue from the Monkey Selfie photographs to charitable organizations dedicated to protecting and improving the welfare and habitat of Naruto and crested black macaques in Indonesia.33

32

https://thenextweb.com/creativity/2017/09/12/of-monkey-selfies-and-bullies/#.tnw_Jyw6AMYU http://www.independent.co.uk/news/world/americas/monkey-selfie-david-slater-photographer-peta-copyrightimage-camera-wildlife-personalities-macaques-a7941806.html 33

Chapter 5. Application Of Copyright Law On Animal Selfies In Different Countries

Copyright law on animal selfies in different countries: United States of America: For a work to be copyrightable, it must be fixed in a tangible form and be an “original” work of authorship. The United States Supreme Court has stated that “the sine qua non of copyright is originality”34 and that “original, as the term is used in copyright, means only that the work was independently created by the author and that it possesses at least some minimal degree of creativity.”35 In Bridgeman Art Library, Ltd. v. Corel Corp., however, Judge Kaplan of the Federal District Court for the Southern District of New York held that a group of skillfully rendered photographic depictions of public domain art works were not “original” for copyright purposes.36 United Kingdom: While there is some homogenisation and understanding under the Berne Convention37 in copyright law between countries, not all copyright law is the same across countries. In the UK, the law around animals producing copyrightable works is similar to the US. The law in the UK is not quite as straightforward, as the author doesn’t necessarily own the copyright.38 Austrailia: In Australia, camera button happy koalas, kangaroos, possums, wombats, dingos, dogs and cats and any other fauna that accidentally press a camera button from curiosity or step on it by mistake can’t be the owner. The legal situation in Australia is clear that animals do not own copyright in

34

http://1.usa.gov/1TJzkxw Feist Publications, Inc., v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 1287, 113 L.Ed.2d 358 (1991) 36 36 F.Supp. 2d 191 (S.D.N.Y. 1999) 37 Berne Convention for the Protection of Literary and Artistic Works, 1886 35

38

Griffiths, J. (2011). Infopaq, BSA and the 'Europeanisation' of United Kingdom Copyright Law. Media & Arts Law Review, 16.

photographs they capture. Under Australian copyright law, the author of a photograph means the person who took the photograph. So, only humans can own copyright in a photographic image. America: An American court is currently agonising over whether an animal can have copyright to selfie photos. The American case centres on selfie images caught on wildlife photographer David Slater’s camera. He claimed copyright but the animal rights group PETA has taken it court arguing that the monkey should own any rights in the image. The case is unique as PETA argues that a monkey can be an owner of an intellectual property right.

Chapter 6: International Copyright treaties for protecting the copyright holder of photographs Copyright is a creation of law in each country, and there is no such thing as an international copyright law. Nevertheless, nearly 180 countries have ratified a treaty: the Berne Convention, administered by the World Intellectual Property Organization (WIPO) that sets a minimum set of standards for the protection of the rights of the creators of copyrighted works around the world.39 The manner in which the exclusive rights to reproduce and distribute copies of various intellectual productions may be obtained in foreign countries. International copyright protection can be secured in only two ways40: 1. By obtaining separate and independent copyright protection in each of the countries where such protection is sought, in compliance with the laws of each country; or 2. Through international conventions or treaties that provide for the mutual recognition and protection of the literary and intellectual property of the citizens of the nations that are parties to such treaties or conventions.

39 40

https://selvams.com/blog/copyright-protection-photographers-india/ Goldstein, P. (2001). International copyright: principles, law, and practice. Oxford University Press.

Citizens of the United States who seek copyright protection in foreign countries may sometimes avail themselves of the first method, sometimes the second, and sometimes neither, depending upon the laws of the countries in which the foreign copyrights issue.



The Convention for the Protection of Literary and Artistic Works (Berne Convention), 1886: The “Berne Convention” is the Convention for the Protection of Literary and Artistic Works, signed at Berne, Switzerland, on September 9, 1886, and all acts, protocols, and revisions thereto.41 Among the works protected by the Berne Convention are books, pamphlets, and other printed materials; dramatic and dramaticomusical works and musical compositions; drawings and paintings; works of architecture, sculpture, engraving, and lithography; illustrations and geographic charts, plans, and sketches; translations, adaptations, arrangements of music, and collections of various works; and cinematographic and photographic works.42 The Berne Convention established several principles of international copyright that have remained through all of the treaty's versions. 1. Rather than operating on a system of reciprocity (under which a country protects foreign authors only to the extent that its own authors are protected in return), the convention works on the principle of national treatment (under which a country extends the same protection to foreigners that it accords to its own authors). 2. Rather than trying to impose the same standards on all nations, the convention solved the problem of national differences in copyright protection by establishing minimum standards of protection that all signatories must meet. Thus, member countries may treat the copyrighted work of their own nationals in any way they choose, but they must treat works from nationals of other treaty members according to minimum treaty standards.43

41

www.wipo.int/treaties/en/ip/berne/ http://www.wipo.int/treaties/en/ip/berne/ 43 https://www.britannica.com/topic/Berne-Convention 42

3. The convention provides for automatic protection of copyrighted works as soon as they are created, without any required formalities, such as notice or registration.44  The Universal Copyright Convention (UCC)45, 1952: Rather than joining the Berne Convention, the United States lobbied for a different international treaty UCC, established in 1952 under the auspices of the U.N. Educational, Scientific, and Cultural Organization (UNESCO). The United States became a member of the UCC in 1955. Many countries that already belonged to the Berne Convention including France, West Germany, and Japan also joined the UCC. The UCC generally operated on the national-treatment principle, thus allowing U.S. authors to receive the same copyright protection in a specific country that the country afforded its own authors, and not requiring the United States to reciprocate that treatment for foreign authors.46

Copyright regulations in Europe:  Directive on Copyright in the Information Society, 2001: Efforts in the European Union to harmonize copyright law have resulted in a number of regulations, including the 2001 Directive on Copyright in the Information Society. The Directive on the harmonisation of certain aspects of copyright and related rights in the information society had two main objectives.47 

To reflect technological developments in copyright law in Europe



To transpose into the law of all the EU countries the provisions in the two WIPO treaties of 1996.

44

http://copyright.gov.in/documents/handbook.html 25 U.S.T. 1341, T.I.A.S. No. 786 46 https://selvams.com/blog/copyright-protection-photographers-india/ 47 Morgan, C. (2015). On the digitisation of knowledge: copyright in the light of Technische Universitat 45

Conclusion A person doesn’t need permission to photograph a work if its copyright term has expired. For most works, and in most countries, copyright protection lasts for the lifetime of the author (artist) plus an additional period of at least 50 years. In a number of countries, this period is even longer. For example, 70 years after the death of the author in Europe, the United States of America and several other countries. However, animals cannot claim copyright on selfies. The claim for damage appears to be one of the most common remedies for such infringement. The legislators took a staunch step by categorising photographs in artistic category and thereby widening the ambit of the subject-matter of copyright. Taking recourse to the harmonious construction of the judicial pronouncements with the provisions of the Copyright Act, 1957 a lucid mechanism appears which safeguards the interest of the photographers. In today’s world, where Google has embarked on a digitization program on a scale previously unthinkable without seeking permission from the relevant authors, likely knowing that it would have to litigate the matter later, copyright management is changing dramatically. Today’s everconnected media and technologies present new twists on core IP issues.48 As we learn more about Naruto, his community of macaques, and all other animals, we must recognize appropriate fundamental legal rights for them as our fellow global occupants and members of their own nations who want only to live their lives and be with their families. Section 51 of the Copyright Act protects the copyright infringement of Photographers. Any violation of the rights of author/owner amounts to copyright infringement. Also, the Courts in India have held that the publication of a photograph by the photographer without his permission by copying it from another published material is infringement of the copyright in the photograph.

48

Karapapa, S. (2012). Digital private copying: The scope of user freedom in EU digital copyright. New York: Routledge.

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 S. (2012). Digital private copying: The scope of user freedom in EU digital copyright. New York: Routledge.

E. Websites  https://www.rightsdirect.com/international-copyright-basics/  http://fairuse.stanford.edu/law/us-code/u-s-copyright-act/subject-matter-and-scope-ofcopyright/  http://www.wipo.int/export/sites/www/sme/en/documents/pdf/ip_photography.pdf  http://bit.ly/1NNTJRR.  http://fairuse.stanford.edu/law/us-code/u-s-copyright-act/subject-matter-and-scope-ofcopyright/  http://www.telegraph.co.uk/news/2017/09/12/monkey-selfie-case-settled-britishphotographer-agrees-share/  http://www.independent.co.uk/news/world/americas/monkey-selfie-david-slaterphotographer-peta-copyright-image-camera-wildlife-personalities-macaquesa7941806.html  https://www.theguardian.com/world/2017/sep/12/monkey-selfie-warring-parties-reachsettlement-over-court-case  http://www.theaustralian.com.au/business/technology/monkey-business-what-iscopyright-law-for-animal-selfies/news-story/0c3601e1fdb28be270b2b60ece6eba32  https://www.wired.com/insights/2014/09/questionable-copyrights/  https://www.theguardian.com/world/2015/sep/22/monkey-selfies-copyright-lawsuit-peta  https://thenextweb.com/creativity/2017/09/12/of-monkey-selfies-andbullies/#.tnw_Jyw6AMYU  https://policyreview.info/articles/analysis/monkey-selfie-copyright-lessons-originalityphotographs-and-internet-jurisdiction  http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf =1&id=20263  http://www.chicagotribune.com/ct-peta-monkey-selfies-20150922-story.html