Intellectual Property & Safeguarding Art Works
Intellectual property (IP) protection is a crucial aspect of safeguarding artwork and ensuring the rights of artists are respected. It involves legal mechanisms that grant exclusive rights to creators over their artistic works, allowing them to control the use, reproduction, and distribution of their creations. While IP protection is necessary for fostering creativity and incentivizing artists, it also presents several challenges and criticisms. In this critical analysis, we will explore some key aspects of IP protection in the context of artwork.
- Limited Duration: One criticism is that IP protection, particularly copyright, often extends for a fixed duration that may be perceived as excessive. Copyright terms have been steadily increasing, leading to concerns about hindering cultural exchange and inhibiting artistic inspiration. Critics argue that overly long copyright terms restrict the public domain, limiting the availability of creative works for future generations to build upon.
- Balancing Public Interest: Another challenge lies in striking a balance between protecting artists' rights and serving the public interest. IP protection aims to incentivize creativity, but it should not become a barrier to access or impede artistic freedom. Some argue that overly strict IP regulations can stifle innovation, hinder creativity, and limit the ability of artists to create derivative works or build upon existing ideas.
- Enforcement Difficulties: IP protection faces practical challenges in enforcement, particularly in the digital age. The ease of reproduction and distribution online makes it difficult to prevent unauthorized copying or infringement. The enforcement of IP rights can be costly, time-consuming, and complex, especially for individual artists or small-scale creators who may lack resources or legal expertise. Consequently, some argue that the current IP system disproportionately favors large corporations and can be inaccessible for individual artists.
- Cultural Appropriation: IP protection can also be criticized for its potential role in perpetuating cultural appropriation. The appropriation of cultural elements or traditional artistic expressions by others can often lead to exploitation and misrepresentation. Critics argue that IP laws should be more sensitive to cultural contexts and provide adequate protection for indigenous or marginalized communities whose artistic heritage is at risk of being exploited.
- Fair Use and Creative Commons: While IP protection is often associated with strict control over copyrighted works, there are alternative models such as fair use and Creative Commons licenses that allow for more flexible use and sharing of creative works. Some argue that these models promote greater cultural exchange, collaboration, and innovation, while still respecting artists' rights.
In conclusion, IP protection in the context of artwork is essential for safeguarding artists' rights and encouraging creativity. However, it also faces criticisms related to the duration of protection, the balance between public interest and artists' rights, enforcement challenges, cultural appropriation concerns, and the need for more flexible models. Striking the right balance is crucial to ensure that IP protection fosters creativity, promotes cultural exchange, and benefits both artists and society as a whole.
- Regarding Title: Art and antiquity have many different meanings and interpretations. The connotation applies to a wide range of objects, including paintings, books, statues, sculptures, manuscripts, artifacts, and heritage sites, according to Section 2(1)(a) of the Antiquities and Art Treasures Act 1972 (the Antiquities Act). The Antiquities Act takes into account not only the 'buyer' of an art or antique object or thing, but also those in possessions, whether through ownership, possession, or inheritance.
Transferring title by purchase or gift, as well as licencing, needs an inquiry by the person accepting the art or antiquities in terms of its validity, source, origin, registration, licence, and any other criteria indicating its nature and origin. Failure to secure the necessary licence or registration will result in criminal prosecution under the Antiquities Act. The old Buddha statue on display at India's High Commission in London is an important example of title claims being made and accepted in Indian art history. A claim was brought to the UK government in this matter, and the arbitration award benefitted the Indian government. - Limitation period: The Limitation Act of 1963 sets the limitation periods for making civil claims in India, with a three-year period from the date of accrual of cause of action to sue as the statutory period within which a claim or suit must be presented. When the right to sue 'first' arises, the limitation period for 'declarations' (title, ownership, etc.) begins. The Antiquities Act makes Section 3 infractions punishable by up to three years in prison. Agreements with governing law clauses that identify Indian law as the chosen law are subject to a three-year statute of limitations for beginning litigation.
- Alternative dispute resolution: Arguments frequently arise around issues of authenticity (the genuineness of the alleged work of art) and ownership. Evaluating the 'chain of title' (i.e., determining provenance) is an important step in any art transaction, both in this context and in general. However, determining provenance can be challenging, particularly with older works of art. These could include the gradual destruction of records (if they existed), aspects of party confidentiality in transactions, insufficient diligence on the part of buyers as to the identities of prior owners, the absence of documentation of the work by artists themselves, and the practise of relying on authentication certifications by family members of an artist, which have subsequently been found to be untrustworthy.
In a December 2014 arbitral ruling, the arbitrator reviewed the claims of auction company Bid & Hammer, which sought payment of its dues on a Ravi Verma painting bid for and purchased by Kiran Nadar. Ms Nadar has questioned the legitimacy of the picture for 120 years. The tribunal noted that the respondent's expert was unsure of the painting's authenticity, and that a suspicion could never be presented as proof in a court of law. As a result, the tribunal concluded that the photograph was genuine.
Sections 34 and 48 of the Arbitration Act render any award resulting from a 'inarbitrable' issue, such as title, fraud, or copyright ownership, unenforceable in India. The details of each case define cases of art-related fraud, with legal precedents indicating arbitrability in cases involving parties' internal affairs.
Although Section 26 of the Arbitration Act recognises and authorises the parties and the tribunal to designate an expert, if the tribunal fails to refer the question of authenticity to the ASI or disregards the ASI's view, the award may be subject to a Section 34 challenge. According to the Supreme Court of India, in the event of a conflict, the provisions of the Antiquities Act have precedence over the provisions of a general enactment addressing the same subject.
Given the high-profile nature of these conflicts, parties may choose to mediate in order to achieve quick and discrete dispute resolution; however, the success rate of mediation is strongly dependent on one party's willingness to repay or restore the other party's financial status. - Fakes, forgeries and authentication In 2011, the Government College of Art and Craft in Kolkata held a 150th anniversary exhibition of paintings by Rabindranath Tagore. A public interest case was filed, alleging that 20 of the artworks were forgeries (despite the signature of the artist). The High Court directed that the paintings be evaluated by the ASI, and an expert committee was constituted to conclude that 20 of the offered paintings were replicas bearing Tagore's signature. The committee also revealed that the exhibition's main objective was to get the counterfeit paintings confirmed as genuine Tagore works, thus increasing [their] value based on lineage.
Paintings and sculptures that have been in existence for at least a hundred years are considered 'antiquities' under the Antiquities Act. Antiquities classified as such by the national government must be adequately recorded, particularly because of their potential relevance in preserving India's cultural history.
Certain instances of misrepresenting the provenance of stolen or looted Indian art have been well documented. Looting difficulties are exacerbated in older institutions of worship, such as temples, where art artifacts are rarely checked and accounted for. Subash Kapoor, a former New York art dealer, is accused of ordering the theft of Hindu idols from Chennai going back to the thirteenth century. The National Gallery of Australia paid A$5.6 million for a 'Dancing Shiva' statue from Kapoor, which was eventually given to the Indian government as a gesture of peace. The theft was discovered by locals, who reported it to the Tamil Nadu Police.
Kapoor was eventually deported and is now facing criminal charges in India. Kapoor was eventually deported and is now facing charges in India. According to Aaron Freedman, Kapoor's business partner, the 'Dancing Shiva' was stolen from a temple and bogus documents were utilised to create a false provenance to aid the sale.
Disputes in Art: