Application of Mischief rule by Courts
Mischief rule is pertains to interpretation of statutes, and is applied by Courts when there is a conflict between two laws or provisions of law on interpreting it by the words as stated in the particular law or is interpreted by the courts to resolve the confusion in its application. Delhi High Court in Microfibers Inc. vs Girdhar& Co. &Anr.1 where the "artistic work" in the fabrics was in question that if the design would be protected under the Copyright Act or the Design Act. The court by applying the mischief rule stated that the "the mischief sought to be prevented is not the mischief of copying but of the larger monopoly claimed by the design proponent inspite of commercial production."2 In other words it means that the copyright is protected in an article till 50 reproductions by the industrial process are made and beyond this limit the copyright ceases to exist. Delhi High Court by giving a reference to the particular case in Holland L.P. &Anr vs A.D. Electro Stell Co. Pvt. Ltd3. , where it was argued by the plaintiff that under section 2(c) read with section 13 of the Copyright Act that he had the "right to convert a two dimensional artistic work into a three dimensional constructions"4 and that the "drawings" are capable to be copyrighted under Section 15(2) of the Copyright Act thus by the virtue of the two statements the copyright should stay with him. The court rejected the plaintiff's contention and stated that the drawing was capable to be registered under the Design Act and it would lose its copyright if it is reproduced by the industrial process more than 50 times and had also entered the public domain.
International Conventions protecting the architectural structures
Article 2(1) of the Berne Convention requires member countries to extend copyright protection to, among other things, "works of . . . architecture . . . and three-dimensional works relative to . . . architecture."5 However, the Berne Convention does not explicitly define what works constitute a "work of architecture" entitled to protection, except that such works may be "incorporated in a building or other structure." The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) explicitly incorporates the Berne Convention's mandate for architectural copyright protection without further defining what constitutes a work of architecture. Architectural works was not included in the Convention of 1886, except for the Article 4 which states "plans, sketches and artistic works relating to architecture were specified.
Thus, the protection of architectural works is an issue that has not been understood and discussed enough. A large number of architects or designers lack the knowledge to protect their building designs intellectually. Most of the countries have now modified their laws to meet the requirements of the Berne Convention with regard to the copyright protection for architectural works. Certain structures are considered to be outside the protection of copyright law. For instance, certain structures such as bridges, dams, cloverleaf's, tents, recreational vehicles, walkways, mobile homes, and boats cannot be considered "buildings". Further, the basic use of spaces such as windows and doors, which are elements that can be found in the majority of buildings, are not in and of themselves protected by copyright law. In such a scenario the Delhi High Court's judgement and the harmonious construction of the Copyright Act and the Design Act has acted as a balancing beam to tackle the issue.
Footnotes
1 RFA (OS) NO.25/2006
2 https://indiankanoon.org/doc/112937069/
3 CS(COMM) 83/2017
4 https://indiankanoon.org/doc/151057483/
5 https://www.law.cornell.edu/treaties/berne/2.html
About the Author: Trishala Sanyal, AKK New Law Academy and Aditya Sehgal, Symbiosis Law School Intern at Khurana and Khurana Advocates and IP Attorneys.
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