In the year 2000, a common law country, by the name of NUJRANEZ, (pronounced as “newness”) is hosting a grand six month Exposition. NUJRANEZ is not a Berne Convention Country or a Universal Copyright Country, although it is a member of the WTO. Designers from 10 countries are invited by the Government of NUJRANEZ to design thematic areas on various themes.
Vurd, (pronounced as “Word”) a famous Designer from a civil law country DNANAJAR (pronounced as “Nayanaya”) having a long history and hundreds of tribal communities and indigenous people in preparing his theme “living with nature”, contacts hundreds of artists, sculptors, musicians and performers so that their paintings, motifs, artifacts, musical compositions, performances and other contributions can be acquired and integrated into a composite work for a thematic area covering 50,000 sq. ft.
There are three group of contributors, namely :
Group 1 Artists :
Those who have motifs, art works and other folklore material which is in public domain but yet belonging to a well defined community of DNANAJAR.
Group 2 Artists :
Small artists who have created works, be their paintings, logos, art form, musical compositions, lyrics etc. and are, for an affordable sum of money, inclined to assign all rights to Vurd. They are very conscious, however, that their contributions should not be distorted; and
Group 3 Artists :
Well-known artists including sculptors, musicians, lyricists and writers who do not intend to assign their rights but maybe willing to give exclusive licenses till the end of the six month Exposition. They are not, however, willing to give any form of electronic rights whether relating to video or the Internet. These artists enter into deeds which do not specify the period of license.
Vurd, along with the other designers, creates a grand work putting together all the composite elements. Under the contract, he was to create the design for a thematic area of 50,000 sq. ft. but during the designing, he is unable to control this factor and the design gets produced for an area of 70,000 sq. ft. The government of NUJRANEZ is unwilling to pay for the additional area and insists that the design be cut short.
Vurd expresses impossibility at which stage the government holds him liable for breach of contract. Vurd says that the art directors over him are at liberty to cut any area that they want but insists that in future if the design is to be reduced or increased, it should be with the supervision of Vurd. Accordingly, under the supervision of Vurd, the design area is cut short by the government.
The exposition is a big success. At the end of the exposition the Government of NUJRANEZ passes a law acquiring the entire thematic area created by Vurd. Vurd is, within two weeks of the date of the acquisition, to be paid ND 2 Million. At the same time the Government of NUJRANEZ places an advertisement in all the leading newspapers of the country inviting tenders from film producers to make a documentary on the thematic area created by Vurd. An Earnest Money Deposit (EMD) of ED 45,000/- is to be enclosed with the tender.
The Artists i.e. Group I, Group II and Group III form an Association of Artists(AA) and file a writ petition before the High Court of NUJRANEZ seeking a quashing of the order of acquisition as being violative of their rights.
Arguments on behalf of the petitioners:
- Nujranez being a common law country provides for the protection of any artistic or literary work to the author who first published or created it. Therefore the artists from Dnanajar are entitled to protection of their works that have been created for the purposes of the exposition that has been organised in Nujranez.
- Group I & II artists have not assigned or delegated their rights to Vurd. Further, Group II artists are conscious that their works that are being used for the exposition should not be distorted.
- Group III artists have given an exclusive license for the period of the exposition only and for the purposes of the exposition only, therefore they are still the owners of the copyright in their works.
- Since the artists are the owners of the copyright in their respective works and since they have assigned these rights only for specific purposes and for specific time periods, the copyright in the works of the thematic area is with the artists and the acquisition by the Government of Nujranez is therefore a violation of their rights.
- As far as the act of acquiring the thematic area is concerned, the same is invalid because, the acquisition is through an executive order and for the same to be valid there should be an empowering statute. Even if the acquisition is through valid means, since there is no compensation paid to the artists, the same is liable to be quashed.
Arguments on behalf of the respondents:
- In the absence of any fact relating to whether Dnanajar and Nujranez are members of any common multi lateral treaty or have a bilateral treaty for these matters, coupled with the fact that Dnanajar is not a member of the WTO, there is no automatic assumption that the artists from Dnanajar are entitled to copyright protection under the laws of Nujranez. For the artists to be entitled to protection under the laws of Nujranez, the works will have to be first published or created within the territory of Nujranez.
- The artists have assigned their rights as far as the works that are created for the purposes of the exposition are concerned. Group I artists have assigned all their rights to Vurd. Further, the contributions that have been made by this group of artists are in the nature of folklore over which no one has any propriety rights, the term of protection having expired long ago. The artists of Group II have assigned all their rights and are therefore not entitled to any protection. Group III artists have exclusively licensed their works for the purposes of the exposition. There is no mention of any specific time period for which the license is given, implying that the term extends to the entire time period for which the copyright exists.
- The government has acquired the tangible assets in the works in the thematic area. The ownership of the tangible assets has been transferred from Vurd to Government of Nujranez. Therefore the Association of Artists has no control in this matter.
- The law acquiring the thematic area is valid under the theory of eminent domain, the state has the power to acquire property through an enactment or an executive order.