September 7, 2011

Can an Animal own a copyright ?

After an overdose of boring 'intellectual posts' I hope this rather humorous copyright controversy would be more enlightening than all others.. Though the parties to the controversy and the applicable copyright laws are not Indian, we may still discuss the Indian Position on this for the 'learning sake'

Facts in short, a famous wild life photographer David Slater during his visit to a national park in Indonesia, left his camera unattended (as claimed in the news report here and a macaque (a type of dexterous monkey) took up the camera and ended up clicking some fantastic photographs that have become a talk of the photography world. A couple of these photographs contain a copyright notice which indicates that the copyright in the photographs clicked by the macaque belongs to 'Caters News Agency'. The website covered this story and questioned the copyright ownership of Caters News Agency in these photographs. In turn, Caters News Agency sent a letter to techdirt requiring them to remove the photographs claiming that techdirt did not hold any copyrights in the photograph. The exchange of letters and notices continues, with techdirt publishing all letters and their replies on their website.

This controversy has brought to light one of the basic inquiries in copyright law i.e. who owns the copyright? Analyzing this with respect to Indian Copyright provisions, the first section that adds to the notoriety of the entire situation is section 2 (d) of the Copyright Act, 1957 which very clearly states that an author in relation to a photograph is the person taking the photograph (probably our legislators never contemplated a monkey clicking a photograph and hence the term 'person' in the definition). Caters News Agency claims to have obtained the copyright from the photographer i.e. David Slater but the pertinent question is- whether David Slater owns a copyright on the photographs in the first place? Techdirt's argument on the other hand is that the copyright in the content is not really owned by anyone and the photographs are in the public domain, open for anyone's use.

My argument on this would be based on the basic premise of copyright law which says that the creator of the copyrightable work is the first owner, in the absence of any agreement to the contrary(see Section 17 of ICA, 1957). So if the student writes an essay in exam, the teacher who asked him to write through a question owns the copyright or if a producer makes a movie, the copyright over everything, from script to music is owned by him (though, we have 'express' agreements stating 'otherwise' in this regard now).

Hence, whether Slater had he intention or not, he left the camera unattended and hence the monkey clicked the pictures, it was done at the instance of him, hence making him the owner of the copyright... (assuming the zoo keepers didnt have any express agreements in this regard, contemplating such situations)
and Probably, this argument would also be applicable to almost all the jurisdictions..

So, with all due respect to the skills of the macaque, but Mr. Slater, you have all the rights according to me..


Biplab Kumar Lenin said...

Comment By Saurabh Bindal:

This is in respect to the post which Prashant posted on the blog JUSTLEGALIP, Titled:"Can an Animal own a copyright?" and Surendra blog Titled: " Man's camera, Monkey's work-No Copyright"

Prashant has contended that Mr. Slater will be the true owner of Copyright, whereas, Surendra argues that the photograph belongs to no one and hence, they should belong to public domain. Assuming that, the law applicable to the controversy is Indian law. Surendra has mooted that monkey can't come under the definition of author.

I will counter both views one by one.

My view on the subject rests on the premise that a copyright protects an original expression which qualifies the statutory threshold. That is to say, to be qualified as a copyrightable subject matter, the work should be an original expression. After the work qualifies as an original expression, it should find mention in the statute.The word " Original" finds mention in section 13 of the Copyright Act, 1957. The Act fails to define that word. The Supreme Court of India, taking cue from the CCH Canadian case has provided a definition of the term "Original" in the case of Eastern Book Company v. D.B Modak. The Court has said that to qualify as original, the work should contain an input in terms of skill, labour and judgment.

Now, if one goes by Prashant's contention, one might argue that CCTV cameras produce copyrightable photographs and the copyright for such photograph rest with the owner of the camera. I am of the opinion that this is an incorrect view and this goes against the objective of the legislation. A photograph taken by a CCTV camera lacks originality and hence it cannot qualify as copyrightable work. As the work lacks copyright, Mr Slater, you cannot reap the benefits from the work.

I also don't concur with Surendra. Though he might be correct in interpreting the term author, he has tried to skip a rung in the ladder. First of all the inquiry has to rest on the copyrightability of the work and then it moves to the understanding of the authorship or ownership of the work. As the work lacks copyright, Mr Monkey, you cannot have a free ride. Also, an author is one who produces, by his own intellectual labour, applied to the materials of his composition, an arrangement or compilation original in itself ( lithographic co. v. sarony). Even if I try to move with the contention raised by Surendra, I will put the work in public domain, not because a Monkey does not qualify as a "person", but, because a Monkey has not used "intellectual labour" to come out with the work.


Biplab Kumar Lenin said...

Well said People, but i don completely agree with you that Monkey has not used his skill in taking the picture. there are instances where monkey( as like other animals) have used his skills to save other,Help others(which includes monkey and other animals ) at the time of need, which most of the Human being Fails to do at the time of need.If we take the argument that we are human beings, and only we have the skill and intellectual Labour, then we are wrong, its because of the reason that there have been many instances, where human beings were at the time of need, all Intellect brains(so called Human beings)failed to do our act in saving or helping other. But i believe you might have seen Animals(in this case Monkey) were in the news because of their extra ordinary work. and the instances are many.. one of the instances is: , where Monkey Saves Puppy In Nanjing.. What better can we expect from such animals!!! If a Monkey Can save life of other animal at the time of need.. Do we need to question him about his intellectual...?