Introduction
India
is a country of diverse religions and different culture followed by different
people. People belonging to different culture follow various traditional
cultural practices. One of the most ancient cultural practice that is followed
in india is ‘dance’. In different regions of india different dance forms are
being performed by people and almost every state is famous for its own dance
form.
For
example: in Punjab people are fond of bhangda
, in karnataka kathak , bihu in assam and many more, traditional
dance forms like kathak or bharatnatyam are performed in india
since ages , performing traditional dance is not just an art but also a way to
worship god. According to people such traditional dances are universal in
nature and their origin cannot be decided. So no single person can have the
copyright to such dance form the belief is they just got the knowledge from god
and now they are following it spiritually.
Also
these dance forms cannot be changed the way they are for example the hand
gestures in bharatnatyam named ‘adavau’ or ‘hasta’ cannot be changed or renamed by any individual and no can
copyright them for itself. Everyone has
the access to practice something which is a tradition from an immemorial time
period.
“brahma created dance or siva is the cosmic dancer” give us an idea of the origin in creation itself. At that basic level as indian dance is practiced and performed even today, there is no question of copyright. It has a universal movement repertoire that exists at the bottom line of all dance forms. Life is its source. This is what bharata's 'natyasastra' tries to describe, mentioning at the same time that people of various regions would interpret and perform these differently. These differences in rendering are evident in anthropology itself and seen in the variety we have today. Therefore even bharatamuni did not claim copyright for what he described as ‘natya' in his treatise.[1]
What
is copyright law?
Copyright
is an intellectual property which is related to all creations of a human
mind. Copyright is an intangible right
which protects the right of any person who discovered something new, and is
dealt under intellectual property right act, also the detailed laws dealing
with are mentioned in the copyright act, 1957.
Copyright
protects the way in which ideas are expressed. This expression is the unique
way in which words, musical notes, colors, shapes, etc. Are chosen and
arranged. It is the expression that makes a work original. This means that
there can be many different works about the same idea and all of them will be
protected by copyright, as long as they express this idea in an original way.
does copyright law protect the rights of
choreographers?
The
answer is yes, according to the copyright act, 1957 includes dance
under the category of "dramatic work". Section 2(h) of the act states
that "dramatic work" "includes any piece of recitation,
choreographic work or entertainment in dumb show, the scenic arrangement or
acting, form of which is fixed in writing or otherwise but does not include a
cinematograph film".[2]
The above section stipulated that if a
person wants to register his/her work for copyright he must reduce it in
writing; this was also said by the supreme court in academy of general edu, manipal
and ors v. B.malini mallya.[3]
that a new form of a
ballet dance which is reproduced in a literary format is considered as a
dramatic work. Thus, if a person wants to register the copyright in a
choreographic work, he/she will be required to reduce it in writing or any
other form and apply for registration in that form only.
Horgan
v. Macmillan[4]
should be used as examples to encourage choreographers to copyright their
works, so as to possess exclusive rights and sole ownership to the work and
also to maintain the power to decide how, where, and when their work is used.
India
had not really experienced a lot of cases related to copyright of traditional
dance forms this is may be because of the reason that the indian constitution
provides every person the right of freedom to worship as mentioned in article
21 and as dance is a form of worship for few as people worship goddess
saraswati or god shiva who is believed to be a cosmic dancer and also to carry
n any profession be it a dance teacher who teaches traditional and classical
dances people exercise their right to freedom in this way also.
With
the passage of time the awareness for copyright laws is increasing day by day.
Another example we saw for this was back in 2013 where the news was reported
that the bollywood choreographer remo d,souza was planning to copyright his
choreography on a movie being directed by him. He also said that “like a film,
dance steps or sequences are creative works. If a script can have a copyright,
and so can songs, why can’t dance sequences as well? I want to take this
forward and copyright the sequence that i have conceived and used for the song
‘bezubaan’. It’s the first number that we are rolling out,” which is a
considerable statement in terms of copyright situation.
So
in india dance moves being choreographic works are protected by the copy right
act, 1957 and section 2(h) of the act states that choreographic work means
‘dramatic work’ under copyright law.
Although
dance forms are not protected under copyright law but the choreographers
performing their art is very clearly protected as performers right by the act
under section 38 of the copyright act, 1957 that: (1) where any performer appears or engages in any
performance, he shall have a special right to be known as the “performer’s
right” in relation to such performance. (2) the performer’s right shall subsist
until [fifty years] from the beginning of the calendar year next following the
year in which the performance is made.[5]
And
section 2(qq) of the act states that
a performer “performer” includes an actor, singer, musician, dancer, acrobat, juggler, conjurer,
snake charmer, a person delivering a lecture or any other person who makes a
performance.[6]
Can
anyone have copyright of traditional dance forms?
Current copyright law does not provide
any copyright to dance forms and as far as traditional dance forms are
concerned in india existence of traditional dance is universal in nature just
like existence of the sun, the moon, or can even be compared to god.
In a practical guide provided by wipo (world intellectual property
organization) provided that traditional culture are part of the identity and
heritage of a traditional or indigenous community and are passed from
generation to generation, these traditional culture could be dance, songs,
handicraft and many other artistic expressions that are considered to be
traditional. Traditional cultural expressions (tces) are sometimes also
referred to as “expressions of folk.”
The reason why there is a need of
protecting traditional dance is so that they do not lose their essence their
natural beauty and people could corrupt its natural medium and present it in an
artificial form. Also if talking about only dance people dance to every
occasion be it marriage, birth or whatever but there are certain rules to be
followed to perform traditional dances and those rules must not be corrupted
and must be preserved.
Conclusion
The
arts help us understand and communicate with different cultures. By sharing
ideas and emotions, the arts open our minds and make us think. They allow us to
see the world differently, through the mind of the creator. Though we may not
understand the language of an artist, we can still understand his feelings and
ideas when we hear his music or see her paintings. Art goes beyond words in
helping us connect with people from different cultures, despite language and
other barriers.[7]
In a country like india everyone must
have free access to traditional dance as it is believed to be pious and if any
such case comes forward it must be closely scrutinized and studied what particularly
must be copyrighted and under whose name nothing should be given copyright in
such a way that it takes away the right to free access to traditional dance
culture and folklore, and by free access it means that a person has a right to
learn it adapt it communicate it to the public.
Providing it limited copyright would
prevent others to authorize it which is important for protection of traditional
heritage like, reproduce it and the moral rights of attribution and integrity
like the rights which maintain a personal link between
authors and their works and giving complete. Copyright will
remove the scope of self improvisation of dance and also in a country like
india the art tradition is founded upon the idea of manodharma which means self improvisation which lets the individual
explore the traditional expression to a the maximum or in his own creative way.
Concluding everything it can be analysed that copyright must be given to traditional dance forms or any expression of art to such an extent that it may not lose its originality also at the same time prevent any person from owing it as it belongs to everyone who wishes to practice traditional value in form of dance and creativity must not die.
[1] https://narthaki.com/info/articles/art118.html
[2] http://copyright.gov.in/Documents/CopyrightRules1957.pdf
[3] https://indiankanoon.org/doc/184940ances
[4] https://scholarship.law.campbell.edu/cgi/viewcontent.cgi?article=1411&context=clr
[5]
http://copyright.gov.in/Documents/CopyrightRules1957.pdf
[6]
http://copyright.gov.in/Documents/CopyrightRules1957.pdf
[7]
https://www.wipo.int/edocs/pubdocs/en/copyright/935/wipo_pub_935.pdf
About the Author: This Legal Article is prepared by Ms. Shanvi Tyagi, a law student at the School of Law, JEMTEC Greater Noida and was an intern at MyLawman. She can be reached at shanvit1099@gmail.com
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