tag:blogger.com,1999:blog-5574479.post6672959346033571684..comments2024-03-28T09:05:22.006+00:00Comments on The IPKat: Can There Be a Performance Right in a Graph?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5574479.post-43386239836704317482012-03-11T16:20:45.673+00:002012-03-11T16:20:45.673+00:00Neil – under Section 2(c) of the Indian Copyright ...Neil – under Section 2(c) of the Indian Copyright Act, 1957 an artistic work is defined as:<br /> <br />(c) "artistic work" means-<br />(i) a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a<br />photograph, whether or not any such work possesses artistic quality;<br /> <br />Since this is an inclusive definition, I would interpret that there would be a copyright in a graph as an artistic work. Further under Section 52(1)(u) of the Act, the following acts in respect of an artistic work are exempted from infringement:<br /> <br />(u) the inclusion in a cinematograph film of-<br />(i) any artistic work permanently situate in a public place or any premises to which the public has<br />access; or<br />(ii) any other artistic work, if such inclusion is only by way of background or is otherwise incidental to<br />the principal matters represented in the film;<br /> <br />Is the showing of the graph an act incidental to the principal matters represented in the show that you are referring to? In that case it would be an exception. In any event, there is no specific right of performance granted to artistic works under Section 14 of our Act. The right of performance is only in respect of literary, dramatic and musical works. <br /> <br />I must also point out Section 38(4) of our Act that sates that:<br /> <br />(4) Once a performer has consented to the incorporation of his performance in a cinematograph film, the provisions of sub-sections (1), (2) and (3) shall have no further application to such performance. <br /> <br />Subsections (1) to (3) of S. 38 deals with rights of a performer. So in my view, the performance rights if any of the interviewee in the graph was waived once he or she consented to be filmed for the interview!Latha R Nairhttp://www.knspartners.comnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45614481314022877972012-03-09T05:54:41.652+00:002012-03-09T05:54:41.652+00:00Dear Anonymous
Thanks for the comments and the cl...Dear Anonymous<br /><br />Thanks for the comments and the clarifications under U.S. law. As for whether the podcast is a public performance, my reference to the podcast was simply to explain how the broadcast came to my attention. The initial radio broadcast (from which the podcast is made) must certainly be a public performance. I apologize for my lack of clarity on that point (probably due to lack of sleep ....)Neil Wilkofhttps://www.blogger.com/profile/04200865773480720037noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-60164565531294104932012-03-08T20:49:01.373+00:002012-03-08T20:49:01.373+00:00There is no public performance right for pictorial...There is no public performance right for pictorial graphic works (i.e. graphs/charts/tables). Instead, owners of pictorial graphic works enjoy the exclusive right of public display. See 17 USC 106(4) and (5).<br /><br />One could argue that a description of a graph/chart/table is a derivative work. That argument probably wouldn't be successful in most situations I can imagine as a graph/chart/table usually is an expression of unprotectable fact. But, I could be taking a narrow view of what charts may express.<br /><br />Finally, a podcast (assuming it is downloaded and not streamed) does not necessarily constitute a public performance. The initial performance that is recorded is not necessarily (or usually) done in public, and the download (distribution to the public) does not involve a performance. See US v. ASCAP 627 F.3d 64.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25872000064565517422012-03-08T16:26:46.755+00:002012-03-08T16:26:46.755+00:00I am contemplating another question, which may be ...I am contemplating another question, which may be easier to answer (I am not an expert only an informed reader of this blog). A student asked me recently, if it would be design right infringement if somebody took a photograph of his fashion design at a trade show. As far as I know, design right only protects the copying of the product (the 3D object) so it wouldn't be design right infringement. However, if the item he is exhibiting is a one-off design (a prototype) and he hasn't produced any other items at this stage, could we regard this as an artistic work? If so, it would be protected by copyright and taking a photograph without his permission would be infringing his copyright in the 3D artistic work... Is this correct or is his fashion design anyway protected by design right as the design is intended for industrial production? <br />If this is the case, could anybody take photographs of his design without his permission and then reproduce the photographs in 3D (as the copyright holder has the right to control reproduction of his work in any medium) without infringing an unregistered design right as the photographer could insist that he just copied his own photograph.<br />As I said, I am not an expert. I am sure this is much easier to solve than the performance right question. <br />By the way, I would have thought that any graph would be treated as an image (information graphics) rather than text as it is a visual representation of a complex 'reality' and not text. This means that performance right wouldn't apply.<br />Kind regards<br />Silvia Baumgart<br />Own-it Programme CoordinatorSilvia Baumgart/Own-ithttp://www.own-it.orgnoreply@blogger.com