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Prashant has very nicely described the facts. I will argue here that neither the animal nor the photographer possess the copyright in the photographer.
As sec. 2(d)(iv) of the act says that the author will be
(iv) in relation to a photograph, the person taking the photograph;
It is clear that the definition of person was never intended to include animals in its ambit. So the question of monkey having the copyright does not arise. As Prashant has pointed out that monkey clicked the photo at the instance of author(though this cannot be legally tenable according to definition of instance, I will address this issue separately) proviso (b) to sec. 17 would come into play and hence the person will have photograph. But again, in the main part of the section 17. First owner of copyright.-Subject to provisions of this Act, the author of a work shall be the first owner of the copyright therein
So, the word used here is author which we know according to the definition will include only persons and hence sec. 17 will not come into play.
Prashant has interpreted the word at instance as to include an incident which was not in the control of the photographer. If photographer accidentally leaves the camera and a monkey clicks the photos then he has not done so at the instance of the photographer. When we use word instance there is a certain control or a sense of command in it. But what has happened here is just a series of incidents over which the photographer had no control. Meanings of instance can be found here http://www.merriam-webster.com/dictionary/instance. Instance will necessarily involve a certain amount of intention to enter into a relationship, whether legal or otherwise.
It may sound a little strange but in this case, the photograph will go straight in public domain where no single person can claim copyright in the photograph.
Lastly, we should not forget the purpose of copyright law is among other things, to promote the growth of arts in the society. Obviously when the photograph in this case goes in public domain, the interst for larger public clearly out weighs the interest of the photographer who is claiming copyright without exercising any judgment or skill in the work. By doing so, the economic incentive for other photographers to click more photos will not get affected because incidents like are unlikely to happen. We should not forget that IP laws seek to give protection where the creators deserve and IP laws also seek to not to give protection where a person does not deserve protection because there is no originality in the work. That is why we have remedies against infringement.
5 comments:
Very Nicely elaborated, My opinion matches exactly with the opinion put by Surendra.
Thanks Surendra for such a nice and elaborate dissection of my post.
But, if you claim that such wide interpretation of the word 'instance' then in my opinion, the term 'author' can also should not be strictly interpreted in such manner..
the intention of copyright may be 'assumed' to promote arts in society, but that is to be done not by bringing everything in pubic domain, but by protecting the rights of the 'creators' or the 'artists'...
in simple words, if Mr. Slater would not have gone to that sanctuary, the photo would not have been clicked.. and further, lets be PRAGMATIC my friend, any picture in crude form is never so good.. every damn photo in whole world is edited/photoshopped/enhanced before publishing... so, if that monkey tuk the picture, it was definitely worked on by Mr. Slater and hence, no one but him can claim copyright over the picture, because of obviously absence of any other author.. If he decides not to make those pictures public, no one can force him to do so claiming them to be in public domain..
So, whether you call him a physical owner or a copyright owner, he is the only legitimate owner who can exist and HAS to exist.. no 'public 'cannot be allowed to have such precious thing for free !!
Prashant, i am not interpreting the word "instance" widely. It can be at best said to be literal interpretation. My interpretation of author is only limited to human. If u are saying that since Mr. Slater edited hence he would have copyright, then you are right but Mr. Slater would have copyright only on those pics which he has edited. Original pics clicked by monkey are still in public domain.
Another thing is that copyright's purpose to promote arts is not "assumed" as u said but rather it "is the" purpose. My authority is US Constitution Art 1 Sec 8 Clause 8. Another reason is that we have a fixed term for protection and in that also various acts of copying or use are protected by Fair Use doctrine.
If your argument is that since Mr. Slater has gone there, thats why he will have copyright then you are rewarding him not for his creativity but because of his "sweat of the brow" which is no more the standard of eligibility for copyright in the work.
Prashant, at the end of your comment u r saying any "right" whether physical or copyright. While u started with arguing that Mr. Slater will have copyright. I am not disputing that the camera would belong to Mr. Slater himself.But he will have no copyright in those pics clicked by monkey.
I hope you would also agree that facts recorded by the scientists through their sheer hardwork are much more "precious" than the pics of monkey but still they are not protected by copyright. Why is it so? Because if Law allows protection to them then the growth of science will hinder as no one else would be able to use those facts. Artistic quality, aesthetic pleasure or preciousness is not a criteria to determine whether a work deserves copyright or not.
Dear Saurabh,
Please explain how u reached at the conclusion that the Monkey exercised no skill and judgment?? If you say that he just clicked the photographs randomly and he was not sure
how will be the photograph or that he lacked the brain to judge what he is clicking then
if I click a photo randomly when I don't know what exactly the photo will be like then, I do not see any difference between me and monkey.
Also, monkey has not used any device which was pre-programmed.No. he clicked the camera himself.
For example, if I am sitting in a high speed train and I click photographs of outside then obviously I am unaware of how the photograph will be??
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Surendra !
Hey!!
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: http://www.nowpublic.com/world/monkey-saves-puppy-nanjing-explosion-photo-2645814.html , 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...? This is just one instance to Show...
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Biplab !
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