Bol Ree Kathputli [Tell Me O Kathputli], What IP Rights Do I Have in You?

 Introduction

The art of making kathputli was given life by the Bhaat community of Rajasthan as a form of entertainment ages ago. The word ‘kathputli’ is a combination of two words ‘kaath’ meaning wood and ‘putli’ meaning a doll. The inner body frame of the puppet is made from wood and then it is given adornments in the form of metal jewellery, clothes and some metal work. Often however, the word ‘kathputli’ is used, and incorrectly so, for any kind of puppet. This piece maps the intellectual property rights framework for both puppets of the ordinary variety and kathputlis in particular. First, let’s understand where the traditional kathputlis are placed in the panorama of IP rights.

Kathputli as Traditional Knowledge and Its Protection as GI

Kathputli, as the unique art of Indian puppetry would fall under what we now refer to as ‘traditional knowledge’ or TK. Due to the various shortcomings of protecting TK as such (for example lack of documentation, lores and processes being oral, unidentifiable creator etc), kathputlis have been protected by India under its GI regime in the class of ‘handicrafts’. The protection is available till 2026, after which its continued protection would be subject to the payment of a registration fee. The certificate declares the Development Commissioner (Handicrafts), Ministry of Textiles, Government of India, New Delhi to be the registered proprietor.

The truth that emerges does not present a promising picture if the socio-economic status of the community involved with kathputlis is taken as an indication. The registration details of the GI certificate for kathputlis reveal 6 odd authorised users, mostly based in the Makrana and Dedwana districts of Rajasthan. All are in penury. Bhaat, the community mentioned above, for instance, comes under the Dalit domain and is grappling with the change of taste amongst contemporary patrons of art and also the rebellion within the community youth who want a more economically viable profession with a regular income. Clearly, an art which has lost its patrons is a dying one and it is unlikely that the stakeholders involved would be aware of their intellectual property rights.

Kathputlis, being registered as a GI, of course, get legal protection but what about ordinary puppets? After having briefly looked at the status of kathputlis under the GI regime, it is useful to examine the copyright protection of puppets in general, which would operate concomitantly with the GI protection of kathputlis. Two statutes that may be of some relevance here are the Copyright Act, 1957 and the Designs Act, 2000.

Are Puppets Protected under the Copyright Act?

Are puppets protectable as artistic work under the copyright law? What rights does one have in a purchased puppet? What if the puppet is mass produced, ‘more than 50 times’?

Firstly, copyright would subsist in puppets if they meet the criterion of being a work with a ‘modicum of creativity’. But, if the puppets are commonplace and of ‘run-off-the-mill’ variety, they may not qualify to be original.

Copyright however, does not protect purely utilitarian aspects of a work. So, a crucial question is that  would a puppet which is nothing more than a toy, often hand-made, meant to be played with hands, strings, rods and other such props, not classify as a utilitarian object; hence not amenable to copyright protection?

We do not have any Indian case law that throws light on copyrightability of toys. Thankfully however, we do have a plethora of US cases which have held in favour of their copyrightability. In Gay Toys Inc. v. Buddy L. Corp., 703 F.2d (6th Cir. 1983), the court declared that the toy plane was not a ‘useful article’ possessing utilitarian and functional characteristics. It held that toys do not have any intrinsic function other than the portrayal of the real item and are protectable by copyright. The recent (July 2019) case of LEGO A/S v. Best-Lock Construction Toys Inc., D. Conn., No. 3:11-cv-01586-CSH, 7/25/19 also reiterates the same stand. Mini-figures of LEGO usually have movable torso and hands. This was alleged to be a functional element by Best-Lock. Rejecting this claim, the US district court declared that LEGO torso shapes were a creative element and nothing more.

It can, hence, safely be said that puppets, being toys, cannot be considered as utilitarian and their creative element can definitely be considered as artistic work meriting copyright, if found to be original.

Coming to the second question—what if the concerned copyrighted puppet is mass produced, more than 50 times? Here, section 15(2) of the Copyright Act, 1957 creates a distinct linkage with the Designs Act, 2000 to provide a clear answer. It states that “copyright in any design, which is capable of being registered under the Designs Act, 2000 but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright or, with his licence, by any other person.”

Transposing the above understanding to the situation of puppets, if the outer appearance of the puppets is replicated more than 50 times, the copyright which might have subsisted in the puppets’ artistic work would cease. This would leave them unprotected under both copyright law and design law.

Performer’s Rights in Puppeteering

Would the use of a puppet for a public performance be an infringement of the artist’s copyright?

For example, if I purchase a few puppets from a maker ‘M’ and do a show (for money) with them, weaving a storyline of my own, would I be violating any copyright of the maker?

The doctrine of first sale entitles a purchaser of a copy of a copyrighted work to use or dispose of that copy freely without paying a royalty to the copyright holder. However, although the purchaser of the concerned puppet may freely dispose it by using or reselling it, they are still bound by the other exclusive rights granted to the author under the Copyright Act, including the right to communicate the work to the public under section 14(c)(ii); and to make any adaptation of the work under section 14(c)(v).

Firstly, the author of an artistic work has the right to communicate the work to the public. Communication to the public, as per section 2(ff) of the Copyright Act can be—a) directly; b) through a display; and c) through diffusion whether simultaneously or otherwise. Therefore, merely purchasing a copy of the work will not entitle the purchaser to publicly ‘communicate’ the art work (subject to any fair use rights under section 52 of the Act).

Secondly, the author also has the right of adaptation, which, in the case of an artistic work means:

1) ‘conversion of the work into a dramatic work by way of performance in public or otherwise’ under section 2(a)(ii)–this, in the submission of the author, would cover within its realm, any monetised puppet show that one does with the puppets so purchased, provided the scenic arrangement or acting form of it is fixed by me in writing or otherwise.

CAUTION: The above explanation is skeptically offered by the author, considering the unfortunate absence of any case law or comparative jurisprudence on the matter. Comments are welcome.

2) ‘rearrangement or alteration’ of any work. This also possibly forecloses any modification of the puppet in order to convert it into a dramatic work.

Additionally, if such modification is proved to be ‘prejudicial to the honour or reputation’ of the maker, the latter has a special right to claim damages u/s 57 (moral rights).

In relation to point 1 above, the author’s submission (in the hope of convincing the readers) is that while adaptation of literary works into dramatic works by way of performance in public or otherwise [as stated in s 2(a)(ii)] is easy to understand if we look at a novel being adapted into a play/nukkad natak etc; however, by contrast, the examples of artistic works being adapted through conversion into dramatic works by way of performance in public, are not easy to fathom. Nonetheless, they do exist—for example the Odissi and Bharatnatyam dance forms (dramatic works) owe a lot to the dance sculptures (artistic works) found in various Hindu temples.

In fact, Dr. Kanak Rele, Director, Nalanda Dance Research Center and a recipient of Padmabhushan Award, Fellow of Sangeet Natak Akademi maintains that “Odissi is characterised by simplicity of grace and redolent with sculpturesque poses which are reminiscent of the glorious stone sculptures of Konark and other temples”.

MF Hussain’s Gaja Gamini, the cinematograph film had an 80 feet long visual script which was in fact a sequence of paintings or artistic work by Hussain interspersed later with written words/lines here and there. The script of Gaja Gamini may serve as an apt example of adaptation of an artistic work into a dramatic work.

Likewise, kathputlis being used to give a stage performance is another example befitting the league (in the submission of the author).

Also, any alteration of the traditional kathputli puppet is also likely to invite an infringement action, albeit under Geographical Indications of Goods (Registration and Protection) Act, 1999 (GIGA). Considering that kathputlis are registered as a GI, section 22(4) of GIGA would come into play to hold any ‘impairment of goods after being put in the market’ as infringement.

Conclusion

Simply put, it seems that whether it’s a purchase of the traditional kathputli (as protected under GI) or a simple puppet which is a copyrightable subject matter as an artistic work – the rights that the purchaser has in them are quite limited, some even dubious.

Whether the owner of rights in those puppets would be eager to vindicate them or even have the means to achieve that, is a different matter altogether. For instance, coming back to the Bhaat community to which kathputli making is now confined, it is safe to assume that given their socio-economic status, illiteracy and lack of zeal to establish their rights, it is unlikely that any such infringement as above would ever come to light.

Indeed, the current tendency might just be to tolerate many types of infringement. Also, one must not forget that adaptation is an enabling right and not a stifling one. So any stringent reading of the rights may not find favour even legally.

The endeavour of this post was just to highlight how the world of IP interacts with puppets – both the kathputlis as well as the ‘ordinary’ ones. On a positive note, it is hoped that the Entrepreneurship Development Institute of India (EDII) which has been set up to develop entrepreneurial competencies in weavers, artisans and traders to promote hand-made art, would cover within its fold the almost lost art of kathputli making. This would not only give some respite to the Bhaat community but also give the necessary impetus and encouragement to other artisans/makers of puppets to enable them to establish their rights.

Source:spicyip.com,23/01/21

Universities and patents

he ambitious goal set by India’s IPR Policy rests on how universities embrace patents

Universities and patents benefit each other. Patents help universities to improve their ranking, establish an innovation ecosystem, incubate knowledge-based start-ups, earn additional revenue and measure research activity. In its biggest push to create entrepreneurial universities, the University Grants Commission (UGC) has now asked all universities in India to set up Intellectual Property (IP) Centres. As universities line up to set up these centres, they will face a strange human resources problem: despite the policy push to have more IP, we simply do not have enough IP professionals in the country.

The dearth of IP professionals is a problem related to the field of intellectual property itself. Its recent rise to prominence in the international arena, thanks to various international treaties and trade agreements, alongwith with the legal-centric approach where law schools and colleges are the only institutions which mandate teaching these subjects, are reasons why the supply of IP professionals is not keeping pace with demand. But there is a great opportunity now that should not be missed. The Central government conducts the only competitive examination in the country to check a person’s proficiency in IP. Fine-tuning the patent agent examination to cater to the growing IP needs of the country can be a successful way to build a band of professionals and create career opportunities.

Patent exam

On October 28, the Central government conducted the competitive examination to test proficiency in patent law, a type of intellectual property right (IPR), after a hiatus of two years. Any Indian citizen with a bachelor’s degree in science or technology can take the examination. Upon clearing it the person is entitled to practise before the Patent Office as a registered patent agent. Qualifying the exam allows science graduates to draft, file and procure patents from the Patent Office on behalf of inventors.

India witnessed significant changes in IPRs since the introduction of the National IPR Policy in 2016. The grants rates at the Patent Office have increased: in 2017-2018, there was a 32% increase in the number of patents granted compared to the earlier year. The Patent Office increased its workforce with the inclusion of 459 new examiners and is on the lookout for more. The timeline for filing responses to official objections for patents has been reduced by half. While the disposal rate has increased, the filing rate for patents has not changed significantly. In 2016-17, the Patent Office reported a dip of 3.2% in filing compared to the previous financial year.

Centres in universities

The new policy has pushed universities to file more patents. Kindled by the call to have more IPRs, the higher education sector has witnessed many reforms. The UGC’s call to universities, highlighted earlier, has come after a series of policy directives to introduce awareness about IP in higher educational institutions.

The number of patents applied for, granted and commercialised by universities and institutes is factored in in the National Institutional Ranking Framework (NIRF) rankings: no surprise that the top ranked engineering institutes in India are also the leading filers of patents. Whether a higher educational institute has an innovation ecosystem could also have a bearing, with the National Assessment and Accreditation Council, awarding up to 24 points to an institute which sets up an innovation ecosystem and has a facility for identifying and promoting IPRs. The All India Council for Technical Education (AICTE) model curriculum for its member institutions lays emphasis on the need for IPR education in technical institutes.

As the IPR Chair at IIT Madras, I was part of a committee constituted to draft the IPR guidelines for institutions under the AICTE. The lack of IP professionals to teach IP was one of the reasons the committee could not suggest the mandatory introduction of IP courses in all technical institutes. Online courses on IPR are available on the National Programme on Technology Enhanced Learning platform. Though thousands register every year, much needs to be done to build capacity on IP in universities. We need to focus on careers rather than courses.

India has a poor patent agent density, with only about 2,000 registered patent agents currently in practice. The last time when the Patent Office conducted the patent agent exam, in 2016, around 2,600 candidates took it, a paltry number if one looks at the ambitious goals set by the IPR Policy. Despite the infrequent manner in which the examination has been conducted, the private sector does give good weightage to the examination as it is considered to be the de facto IP qualification today.

Way ahead

The ambitious goal set by India’s IPR Policy will be realised only when the examination becomes the foundation for making a career in IPR. In a dynamic field such as intellectual property, in order to create a band of qualified IP professionals there should be a push towards post-qualification continuous education as well. To achieve this, the format, membership, syllabus and the frequency of the patent agent examination will need to be addressed. This will not only increase the number and quality of IP professionals in the country but also become a new career choice for graduates with a degree in science and technology.

Feroz Ali is the DIPP-IPR Chair Professor at IIT Madras and the chief mentor at www.lexcampus.in, a platform to train aspiring patent agents

Source: The Hindu, 31/10/2018

An IP policy with no innovation

Intellectual property accelerates innovation in certain technology sectors, but it impedes innovation in others. The biggest flaw of the new policy is that it does not acknowledge this.

Intellectual property (IP) regimes suffer a classic paradox. While they attempt to encourage innovation and creativity, they have themselves been shielded from innovation experimentation. For some years now, India has been attempting to break this mould and craft a regime to suit its own distinctive set of concerns. Section 3(d) of the Patents Act, 1970, was a bold attempt in this direction, aimed at eradicating “evergreen” drug patents.

Sadly, this distinct attempt at diversifying a problematic global IP script is slowly yielding to larger market forces. It is reinforcing a realpolitik predicated to a large extent on various campaign contributions flooding the coffers of candidates striving to lead the most powerful democracy of the world, namely the U.S.

Shamnad Basheer

Flawed foundation

Enter India’s recently unleashed IP policy into this new political fray — one that, at best, repeats ad nauseam the various platitudinous phrases around intellectual property. That it is meant to foster innovation and creativity. That it must be balanced against public interest and public health. And that the Agreement on Trade-Related Aspects of Intellectual Property Rights or TRIPS is the benchmark and that India is compliant with relevant international norms.

And yet, at worst, the policy represents an extreme excess in terms of its one-sided view of IP as an end in itself. And therein lies the greatest flaw. The policy fails to situate IP within the larger context of the innovation ecosystem, refusing to acknowledge that while IP could accelerate innovation in certain technology sectors, it impedes innovation in others. This is a truth touted not only by those labelled as left-liberal ideologues, but powerful industry giants facing the brunt of a promiscuous patent regime — renowned giants such as Tesla’s Elon Musk who have either eschewed patents or dedicated them to the public domain.

And yet the entire edifice of the present IP policy is built on this flawed foundation equating more IP with more innovation. The policy sounds almost militant when it proposes that despite our ancient “laudable” heritage where knowledge was freely and extensively shared, we must now make amends and convert each piece of our knowledge into an IP asset. This flawed frame results in a number of problematic assertions in the text of the policy.

It advocates that publicly funded scientists and professors must compulsorily convert all of their discoveries into IP assets, much before they have even written this up and published it in reputed science journals — and that their promotions be predicated on the number of IP applications made. A hark back to the past would reveal that visionary scientists such as Benjamin Franklin and, closer home, our own J.C. Bose shunned patents owing to their potential to curb the free flow of knowledge. We must encourage a plurality of approaches when it comes to IP and innovation; our scientists should be free to take this call on whether or not they wish to register IP. Doing so for the mere sake of it is stupid, quite apart from the fact that on an empirical cost-benefit analysis, most U.S. universities lose more money on IP registrations than they make through IP royalties.

The policy needs to be commended for taking note of our “informal” (rural) economy and the need to encourage the prolific creativity found within. Unfortunately, far from understanding the drivers of creativity and the modes of appropriation/sharing in this “shadow” economy, the policy leans towards the superimposition of a formal IP framework on this marginalised sector.

Lastly, much in line with its powerful IP rights-centric approach, the policy recommends that the unauthorised copying of movies be criminalised. No doubt Bollywood requires some protection from pirates, but criminalising what is essentially a civil wrong (much like defamation) is tantamount to killing an ant with an elephant gun, not to mention the potential for abuse at the hands of our police.

A short-sighted policy

Indeed, the present policy could well be the classic poster child for IP formalism. We had expressed caution against such a reductionist view in the first draft of the IP policy formulated by a think tank (of which I was part). Unfortunately the government unceremoniously disbanded our committee after we submitted the policy and disregarded our exhortation to conceive of the policy as a more broad-based and holistic Innovation Policy.

Granted, India is lagging on several counts. When compared with its glorious past boasting pioneering innovations from the likes of Sushruta (the father of modern surgery) and Nagarjuna (metallurgy), India has hardly had any noticeable technological marvels in its recent history.

But is the problem with the country’s IP regime? Or does the malaise lie elsewhere? Could it be cultural, where parents put undue pressure on their children for that fat salaried job, as opposed to a risky entrepreneurial venture? The policy advocates that IP be taught in schools and colleges. But why? What we need in schools and colleges are courses on creativity, not on IP. Even if we lack resources to impart specific courses on creativity, let’s at least ensure that we don’t stand in the way of a natural flowering of creativity in our children. A truth tellingly captured by Mark Twain’s sentiment: “I have never let my schooling interfere with my education.” And one that is now being controversially tested by Peter Thiel (PayPal’s legendary founder) who pays college students to drop out of college and run risky ventures.

Unfortunately, notwithstanding some of its praiseworthy proposals, such as expedited examination, an IP exchange and the proposal to encourage Corporate Social Responsibility funds into open innovation, this much-awaited IP policy is terribly short-sighted.

Many decades ago, a two-member committee (headed by Justice N.R. Ayyangar) conceptualised a patent policy that formed the blueprint of the present patent regime. It was one that triggered the remarkable growth of our pharmaceutical industry, enabling it to earn the moniker “pharmacy of the world”. It was a policy that was thoroughly researched, empirically validated and elegantly written in a little over a year.

Compare and contrast that with the present policy that took more than two years and two separate think thanks to come to fruition. One beset with banality, dogged by dogma, rife with ridiculous assertions, lacking in any credible empirical support, and written in language that, at best, mimics a masterful memo from one babu to another.

I began with a paradox. Let me end with one. While proudly proclaiming the slogan “Creative India, Innovative India”, the policy states: “There is an abundance of creative and innovative energies flowing in India.” A sheer pity that none of that abundant creative energy made it to this policy document, rendering it rather dreary.

Shamnad Basheer is the Honorary Research Professor of Intellectual Property Law at Nirma University and the founder of SpicyIP.

Keywords: intellectual property, IPR, intellectual property rights

Source: The Hindu, 18-05-2016