Everything Subject to Copyright Protection Should Not Eventually Become Fair Game
December 22, 2008 by Gargi Chopra (Ipilogue Editor)Recently in Bangladesh, filmmaker, Ahsanullah Moni partially unveiled his copy of the Taj Mahal. He has reportedly spent close to 58 million (USD), importing granite and marble from Italy, and diamonds from Belgium. He even sent architects to India to copy and measure the dimensions of the original Taj. His reasons? He says Bangladeshis “could not afford to go to Agra to see the Taj, so I am bringing the Taj to them”. His replica is also said to be part of a giant movie set. This has raised many important issues and concerns. The main one being, whether it is possible to claim copyright in a building?
There are two principal international conventions protecting copyright; the Universal Copyright Convention and the Berne Convention. Both Bangladesh and India are parties to the latter. Where the Berne Convention standards apply, copyright is automatic, existing as soon as the work is created and applying in all countries party to the Convention. The protection must include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, Article 2(1). Works of architecture are included in the list of protected works. There are also a series of rights that it recognizes, for example the right to make reproductions in any manner and form. However, these exclusive rights are not unlimited. They are only given for a specific period of time after which they are said to enter the public domain, and under the Berne Convention, the general rule is author’s life plus fifty years. From this we see that any copyright term of protection for the Taj has long expired.
Even though the replica is legally permissible, should it be allowed? The Taj is not just a building. It was built by Mogul Emperor Shah Jahan not only as a symbol for the love of his wife, but as her tomb. In addition, despite being one of India’s most prized possessions it also has been considered a site that is in the interest of the international community to preserve. In 1983, it gained the status of a UNESCO world heritage site as a site of outstanding cultural or natural importance to the common heritage of humanity.
We should also be mindful that this recent dispute over the duplication of the Taj is just one example of copying. New York City’s very own Times Square, although not a building, has achieved the status of an iconic world landmark holding a significant place in popular culture. However there are many renditions of it in other countries. Another example would be the Tokyo tower, built in 1958 and intended to be an Eiffel Tower-like structure, although perhaps functionally different. So, what exactly constitutes copying, and where exactly do we draw the line? Does functionality change things? Or does just pure imitation qualify? In this case, Bangladesh is to have an actual full size replica of the Taj Mahal, and as mentioned above, it will also have the very same granite, marble, and diamonds. This seems to be full fledged copying that threatens originality and undermines the existence of a country’s cultural heritage. Copying is not always the sincerest form of flattery, especially when it is definitely not flattering. And although it is widely believed that Shah Jahan himself was inspired by Humayun’s Tomb, the Taj Mahal is not an identical replica.
Although significant terms of protection are afforded by copyright law, it seems this is insufficient for historic and culturally significant sites like the Taj. Perhaps everything subject to copyright law should not eventually become fair game. Copyright is meant to encourage the dissemination of ideas, as well as promote the creation of more. Placing restrictions on the entry of sites like the Taj into the public domain might further this purpose by encouraging the creation of new ideas, and equally formidable, yet different works of art generating more wonders of the world.
4 Responses to “Everything Subject to Copyright Protection Should Not Eventually Become Fair Game”
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“Placing restrictions on the entry of sites like the Taj into the public domain might further this purpose by encouraging the creation of new ideas, and equally formidable, yet different works of art generating more wonders of the world.”
I find it highly doubtful that some potential creator out there is making the rational decision not to create an architectural design (or similar work) because copyright in such a work is limited to life + 50/75.
As such, a possible moral/ethical argument remains. However, perhaps erroneously, I do not think that copyright should be used as an instrument for ethics/morals.
It is not the creation of a ‘similar work’ that poses a danger. In reality, we are all influenced at least to some degree by others. The creation of a completely independent work (even of art) is rather rare. It is the creation of an identical work that can be problematic for the reasons discussed above.
Perhaps copyright shouldn’t be used as an instrument for morals, but at the same time it shouldn’t be used as an instrument to usurp morality either. The mere fact that something has copyright with a limited term of protection by implication means that after the term has ended, it is now more or less free. This is what is causing the difficulty. My point is, perhaps some things should never be considered more or less free. Especially when, it may be in the interest of humanity to preserve.
In addition, I am wondering why copyright shouldn’t be used as an instrument for morality? Other practice areas of the law are. For example, in criminal law, a sentence for murder is given not only because it is legally prohibited, but because it is morally reprehensible to murder. Although creating an identical replica of a country’s historical site is surely not as morally reprehensible as the latter example, it still has some element of it.
It seems that there is always some pressure in Intellectual Property Law to divorce morality from the law. Perhaps this is distinct to IP, but maybe this is also where change is needed. In all other areas of the law, legal sanctions are imposed & created on account of our morals. I am not too sure why there is hesitation here.
“The mere fact that something has copyright with a limited term of protection by implication means that after the term has ended, it is now more or less free. This is what is causing the difficulty.”
I must admit that I do not see to what “difficulty” you are referring. What problem has been identified that needs resolution? I would put the burden on those calling for additional legislation to demonstrate the existence of a problem. Mere speculation should not be a sufficient basis on which to create further restrictions on the populace.
As to the question of morals: the simple argument for not having government impose morality is that it is a horrible entity to select for such a task. The fact that it already does so does not support the proposition that it should do so to an even greater extent. On the contrary, one would hope that, over time, the government would remove itself from that area.