India: Architect Has No Right To Object The Demolition Of Building

Last Updated: 19 June 2019
Article by Utkarsh Kumar Mishra

Case: Raj Rewal Vs. Union of India & Ors. CS(COMM) 3/2018, IA No.90/2018(u/O XXXIX R-1&2 CPC) & IA No.92/2018 (u/s 80(2) CPC

Facts of the Case:

Mr. Raj Rewal is a renowned Architect in India who has been in practice for the last 35 years and has designed several prestigious structures in countries like Iran, China, France and Portugal. Two buildings i.e. Hall of Nations and the Nehru Pavilion designed by Mr. Rewal were proposed to be demolished by the Indian Trade Promotion Council (ITPO) and were consequently demolished. Aggrieved by this the plaintiff bought a suit against the Union of Indian and ITPO under section 57 of the Copyright Act, 1957 to seek mandatory injunction against the defendants and to compensate him by recreating the work of architecture in Hall of Nations and Nehru Pavilion at the same location or at any other location in Delhi which is equally prominent as the earlier location of the said buildings, under his direct supervision.

Issue(s):

  1. Whether an Architect, as an author of artistic work of architecture in the form of building or structure having an artistic character or design and having a copyright therein, upon the owner of land on which building is constructed choosing to demolish the said building to construct another building in its place, has a right to restrain the owner from doing so and if the building is demolished, to demand compensation therefor including by reconstruction of a building in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed.
  2. Whether laws relating to artistic work of architecture and the copyright therein, expressed on land belonging to another, can be interpreted without regard to laws relating to land.

Contentions:

Plaintiff Contentions: During the arguments the dicta of Amar Nath Sehgal vs. Union of India 117 (2005) DLT 717 was referred by the Plaintiff's Counsel wherein, it was held that the copyright law in India is at par with the Berne convention and section 57 of the Act protects the author's right of paternity and integrity. It also protects the author's right against distortion, mutilation or modification, if established to be prejudicial to the author's reputation or honour. It was contended that the right of the author was held to include an action to protect the integrity of the work in relation to the cultural heritage of the nation. Mandatory injunction was issued directing the Union of India to return to the plaintiff the remnants of the mural and a declaration issued that all rights in the mural vested in the plaintiff and damages in the sum of Rs.5 lacs awarded against Union of India. The Counsel for the plaintiff in the subsequent hearings contended that the following:

  1. Artistic work includes a work of architecture and the author thereof is an architect.
  2. Copyright subsists in such artistic work vide section 13(1)(a) of the Copyright Act.
  3. Copyright in case of artistic work confers in the architect, the exclusive right to reproduce work in any form by virtue of section 14(c) of the act.
  4. Copyright does not make any distinction between the medium on which the artistic work is executed; thus even if the said medium is a land belonging to another, the artistic work would subsist.
  5. Copyright subsists irrespective of whether or not the work has artistic merit and artistic quality and that artistic merit in the work is irrelevant as a matter of statutory construction and that evaluation of artistic merit is not a task for which judges have any training or general aptitude by relying on George Hensher Ltd. Vs. Restawile Upholstery (Lancs) Ltd.1
  6. A work of architecture is a functional design does not disqualify it from copyright protection by relying on Lucasfilm Ltd. Vs. Ainsworth2.
  7. The Architect is the owner of the design of the building and the owner of the building cannot reproduce the plans or repeat the design in a new building without the architect's express or implied consent as was held in Meikle Vs. Maufe3.

Defendants Contentions: The Defendant contended that Section 57(b) of the Copyright Act confers rights only in respect of distortion, mutilation or modification of the work and is not concerned with the total destruction of the work when the work ceases to exist and is not visible. It was argued that complete effacing of the work of architecture is akin failure to display a work dealt with in the explanation to section 57(1) of the Act and which has been held not to be an infringement of the rights conferred thereunder. Following were the contentions of the Defendants:

  1. Section 57 is for enabling the architect to either restrain modification or distortion of the work so as to take away the artistic elements thereof and when the work is not in public view, the question of affecting the rights of the author does not arise.
  2. The Counsel for defendants also contended that there is a difference between the work of an architect and sculptor and thus, Amar Nath Sehgal dicta would not apply.

Court's reasoning:

The Court stated that the defendants Union of India and ITPO have erred in not so caring for the sentiment of and respecting the plaintiff and his work. However, the Court quoted the U.S Supreme Court Judge Sonia Sotomayor, "We apply law to facts. We do not apply feelings to facts." The Court recorded based on Chairman, Indore Vikas Pradhikaran Vs. Pure Industrial Coke and Chemicals Ltd.4 that the owner of the land ordinarily would be entitled to use or develop the same for any purpose, unless there exists certain regulation in a Statute or Statutory Rules and that the regulations contained in such a statute must be interested in such a manner so as to least interfere with the right of property of the owner of such land. In Karnataka State Financial Corporation Vs. N. Narasimahaiah5 it was held that right to property although no longer a fundamental right is still a constitutional right and also a human right and in the absence of any provision either expressly or by necessary implication depriving a person therefrom, the Court shall not construe a provision, leaning in favour of such deprivation. The Court relied on a plethora of judgments to arrive at the conclusion that the Constitution in Article 300-A mandates that no person shall be deprived of his property save by authority of law, no law unless expressly providing for deprivation of property can, by implication be interpreted as depriving a person of his property. The judgment, George Hensher Ltd. cited by the plaintiff on the question that the computer-generated work of an architecture qualifies under section 2(b) of the Act was not considered by the Hon'ble Court. The Court recorded that requirements of urban planning outweigh the moral rights of an architect. Similarly, technical reasons to modify the building, economic reasons justifying modifications to the building and necessity to obtain an authorisation to build, all prevail over the moral rights. The architect cannot demand the intangibility of work because it would violate the right of ownership and the principles of freedom of commerce. The functionality of the building has to necessarily outweigh the interest of the architect on the preservation of integrity. Thus, the owner of the building has full power to dispose of it and to destroy it. Section 52 titled " Certain acts not to be infringement of copyright" in sub-section (1)(x) lists "the reconstruction of a building or a structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed" meaning such a reconstruction is not an infringement of copyright. The Court relied on the judgment of the Athens Court of First Instance in Architecture Studio and Architects Associes Pour L'environnement Vs. Organisation of Labour Housing (OEK)6 in which the claimant had participated in a competition for submission of master plans for Olympic Village and had won the First prize. The claimant contended that what was submitted was a distortion of the plan on which they were awarded and commenced an action against the state for restraining the state-owned agency from making any changes or raising construction as per the changed plan. The state-owned agency claimed that they were entitled to amend the plans since the claimant had surrendered their moral rights. The Court rejected the claim for interim relief and recorded that the interests of the owners override the interest of the IP owner. The Court recorded that no jurisdiction in the world is prohibiting demolition of a building or structure constructed in accordance with architectural drawings or plans by relying upon the Copyright Amendment (Moral Rights) Act 2000 of Australia. The Court also relied on section 120 of the Copyright Act, 1976 of the USA and held that act permits the owner of a building embodying an architectural work make or authorise the making of alterations to such building and destroy or authorise the destruction of such building and the owner cannot be forced to keep the same design just because the author has copyright of the structure.

Judgment:

The Court held that there is no right for the plaintiff as an architect of building according to section 57 of the Copyright Act and in the absence of any such right, the plaintiff has no cause of action for the suit. The suit was dismissed with no costs.

Footnotes

[1] [1974] 2 All ER 420

[2] [2011] UKSC 39

[3] [1941] 3 All ER 144

[4] (2007) 8 SCC 705

[5] (2008) 5 SCC 176

[6] [2002] E.C.D.R 36

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