Every Monkey has its day!!! I mean litrally …

Author: Suraj Badrayan, 3rd Year student of RGSOIPL, IIT Kharagpur Law School.

Imagine yourself owning a DSLR camera, and trek the forests in the hopes of capturing one of those rare photographs. You put down your camera and take break. Little do you know, lurking in the bushes, whoosh..!!! A monkey grabs your camera, manhandles the camera and then dropping it down and running away. Ordinarily, all you would do is just hope that your expensive camera is not damaged and scratched. But, then you find out  that you are in the possession of one of the rarest photographs ever captured. A rare shot of a monkey taking a selfie!! That photograph could make you a lot of money.

Little do you realise that you would be actually be mixed up with a bizarre copyright ownership issue about that photograph. Apparently, the monkey owns copyright over the photograph. Surprised..!!! Well you shouldn’t be, because that is exactly what has happened to Mr Slater. The story can be viewed here.

Well, let’s examine the legal position in this regard. Section 17 of the Indian Copyright Act, 1957 says that “the author of the work” shall be the first owner of the copyright. Section 2(d) subclause (iv) of the same Act, defines author of the photograph as the person taking the photograph. So by bare reading of the provisions of the Act, you will actually realise that the monkey is  the true owner of the copyright.

Ok, in order to make things more complicated, the Black’s Law Dictionary and General Clauses Act, 1897 defines person as a human being or a legal entity. So, the monkey cannot hold the copyright in the photograph.

THE QUESTION IS WHO OWNS THE PHOTOGRAPH?

There are three arguments that can be put forward. Let’s look at them.

1. The owner of the camera is the owner of the photograph. He spent, time, money and resources. He meant to take photographs, but the monkey took and camera and clicked it. Since, monkey is not a person, naturally the only person over there, the owner of the camera owns the copyright.

2. The government owns the photograph: The concept of animals as “property” of person is not new. To the law, animals are property, they are goods to be bought and sold, acquired and maintained.   This principle is deeply interwoven into the law. Imagine, the monkey is owned by a person, say Mr. X. Then, if the monkey clicks the photograph, then it can be said that the copyright is owned by Mr. X. As common law says that, rights and liabilities of acts done by the animal can be traced back to the owner itself.

Section 39 of the Wildlife Protection Act, 1972 specifies that all wild animals are to be government property. Section 17 clause (d) of the Copyright Act, says that in case of government work, the government shall be the first owner of the copyright. Hence, above analogy, the government shall be the first owner of the copyright of the photograph.

3. The photograph is in public domain: Here it can be said that, no one owns the copyright, and the photograph is public domain under the principle of res communes. The term res commune was defined as "things that could be commonly enjoyed by mankind, such as air, sunlight and ocean”. Common law describes public domain material as publici juris or propriétépublique to describe works that were not covered by copyright law. Legal scholars such as Patterson and Lindberg describe “public domain” not as a "territory", but rather as a concept: "There are certain materials—the air we breathe, sunlight, rain, space, life, creations, thoughts, feelings, ideas, words, numbers—not subject to private ownership. The materials that compose our cultural heritage must be free for all living to use no less than matter necessary for biological survival.^[1]

Hence, copyright to photograph may not exist at all due to publici juris principle. An alternative interpretation to this would be taking the philosophy of section 52 of the Copyright Act, which are copyright exceptions and limitations. Hence, such content which (but for Section 52) would have fallen squarely within the scope of the definition of a protectable work under the Copyright Act may also, in a manner, be considered to be in the public domain, if one were to use the term loosely. Consider particular sub clauses of:

 52(1)(a): as fair dealing

52(1)(h): for bona-fide instructional use

52(1)(m): for reproduction in any newspaper, periodical, magazine of an article on economic, political, social or religious topics.

Or reading of  the general exceptions within section 52 one can come to a conclusion that the photograph can be fitting loosely in the definition of public domain.

CONCLUSION:

If the matter ever comes to court and if I was ever the judge hearing that case, I would rather apply the Golden rule of interpretation^[2] to the definition of author in section 2(d) sub clause (iv) of the Copyright Act in order to remedy the absurd result arising from the section.

The interpretation would be that in particular cases when author of the camera is not able to be determined or is absurd in law, then the author is in fact the owner of the camera.

This would be the most simple, more logical and common sense thought to do. For if a court would try to resolve it otherwise, he would end up writing a whole lot of absurd nonsense like the one I have written above.

Disclaimer: This blog or any post thereof is not to be considered to be in any way associated with the official stand of IIT kharagpur or RGSOIPL on the issues being discussed in the said post. The opinions on the blog are the authors own and should not be considered as legal advice.

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[1]Ronan, Deazley (2006). Rethinking copyright: history, theory, language.Edward Elgar Publishing.p. 105.ISBN 978-1-84542-282-0.

[2]The golden rule of statutory interpretation may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning.