September 8, 2011
Man's camera, Monkey's work-No Copyright
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.