CHAPTER I

INTRODUCTION

1.1 Present scenario of copyright protection in India

Copyright is a bundle of statutory intellectual property rights granted under the Indian

Copyright Act,1957 for the protection of various categories of intellectual labor exerted by

painters, authors, photographers and the like who can be grouped into a broad category of

‘creators’ or ‘artists’ while creating their artwork . The Act is a comprehensive legislation

which not only defines the rights of artists but also provides remedial measures for breach of

their exclusive rights vested in the categories of works listed in the Act. The present Thesis

is focused on one such category of ‘work’ that the Act protects – Artistic works. Though the

literal meaning of the term may imply that for being entitled to protection under the Act a

creation or a work must have aesthetic value, due to the term ‘artistic work’ used under the

Act, the reality is quite different. As would be elaborately discussed in the present Thesis,

artistic merit or aesthetic value is of no consideration for affording protection not only

under the Indian law but also in other national legislations and international treaties. The

requirement of law that the work must be ‘original’ merely implies that the work ought to

have originated from the artist. In other words the work or the creation should be a direct

result of the application of skill and judgment of the artist creating the work and that the

artist ought to have done something more than mere mechanical arrangement or re-

arrangement of the components of the work.

These aspects of the Indian legislation, whereby it confers various economic and moral

rights upon the artists, are at par with the latest developments in law across the world.

The Indian Copyright Act is completely in compliance with the TRIPs Agreement as well as

the Bern Convention, which is the international treaty that comprehensively deals with

Copyrights.

However there are other aspects of the Indian legislation that raise serious concerns which

would be addressed in the present Thesis. In the context of artistic work, the law as it stands

today in India, provides vide S. 2(c) of the Act that an artistic work would mean a painting, a

sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a

photograph, whether or not any such work possesses artistic quality; a work of architecture;

and any other work of artistic craftsmanship. Thus despite being a comprehensive legislation

on the subject of copyright, a work would be afforded the protection only if it falls within

the given categories of work listed under S.2(c) as far as artistic works are concerned.

It is unfortunate to observe that the Indian Legislators expect the creators to express their

creativity within a stipulated list of works rather than protecting all sorts of creative

expressions of artists. As a result huge segment of modern art – popularly known as the

conceptual art is left out of the ambit of copyright protection. As will be discussed in the

course of this thesis, certain modern creations such as installation arts or land art do not fall

within any of the fixed categories provided under the legislation. Hence the significant

question that prompted the Researcher to choose the present topic for research is – whether

copyright law should follow the development in art world or should art be permitted to

flourish only within the primordial limits of copyright law?

For instance in the case of Deepak Printery, Ahmedabad v. Forward Stationary Mart1 the

High Court of Gujarat has held that copyright can be claimed in a work only in case the

work falls within the stipulated categories. In the said case originally suit was filed before

the trial Court claiming copyright over date-pad (Panchang) and alleging the infringement

there of by the Defendants. The Plaintiff therein claim that the entire date-pad was an artistic

work. Rejecting the said argument the Court observed:

“Which is the product of artistic craftsmanship of Kanu Desai in respect of which copyright

is being claimed ? No prototype of such a date-block was ever prepared by Kanu Desai It

is not shown to

be an original idea or original product. There is nothing peculiar or special in incorporating

all the pictures in the date-block and in the design. It is not necessary to refer to various

passages from that copyright Act, but it is clear that the copyright Act is concerned with the

reproduction of either the painting sculpture, drawing, engraving or photograph or

architectural work of art or product of artistic craftsmanship or a literary work of an author

from being reproduced. It is not concerned with the commercial production of commercial

articles with the help of idel is borrowed from an artist. The purpose of the copyright Act

is not to prevent rival manufacturers form using the same idea or to prevent competition

between them. It is not the case of the appellant-plaintiff that this is a literary, dramatic,

musical or artistic work as defined in sec. 2(y). It is his contention that it is an

1
[1976 GLR 338]
artiste work. The production itself is not the outcome of either the artistic urge or the artistic

genius of Kanu Desai. The artistic genius is reflected only in the paintings, pictures and

decorative pieces prepared by him about which no grievance has been made and in respect

of which there is no theft of his art.”2

The trial Court dismissed the suit and in appeal the High Court confirmed the dismissal on

the ground that for being entitled to protection under the Act as an artistic work, the creation

ought to be a literary, dramatic, musical or artistic work as defined in sec. 2(y).

An offshoot of this categorization hurdle is the requirement of fixation. The law as it stands

today in India, mandates that art work must be either a painting or a sculpture or the like as

discussed above. This specific nomenclature further implies that the work must be fixed in

some tangible medium. Though this fixation requirement in India is not express, as is

several other countries, however the wordings of the law are such that the fixation

requirement is implicit.

Whereas originality is a requirement that must be met by every art work in order to qualify

for copyright protection. The Indian law expressly stipulates that in order to be entitled for

copyright protection, the work ought to be ‘original’. As will be discussed in detail during

the course of this thesis, the requirement of originality under patent law and that under

copyright law is starkly different. Unlike under the patent law, where originality means

novelty, under the copyright law a work is termed as original if its origin or creation can be

traced back to the artist.

2
Id at para 7
However mere originality is also not sufficient. The artist will also have to demonstrate that

she or he employed some skill and that skill ought not to be trivial. In the landmark

judgment rendered by the Supreme Court of India in Eastern Book Company v. D.B.Modak3

the Court elaborated this notion in following words:

“[30] These decisions are the authority on the proposition that the work that has been

originated from an author and is more than a mere copy of the original work, would be

sufficient to generate copyright. This approach is consistent with the "sweat of the brow"

standards of originality. The creation of the work which has resulted from little bit of skill,

labour and capital are sufficient for a copyright in derivative work of an author. Decisions

propounded a theory that an author deserves to have his or her efforts in producing a work,

rewarded. The work of an author need not be in an original form or novel form, but it should

not be copied from another"s work, that is, it should originate from the author. The

originality requirement in derivative work is that it should originate from the author by

application of substantial degree of skill, industry or experience. Precondition to copyright is

that work must be produced independently and not copied from another person. Where a

compilation is produced from the original work, the compilation is more than simply a re-

arranged copyright of original, which is often referred to as skill, judgment and or labour or

capital. The copyright has nothing to do with originality or literary merit. Copyrighted

material is that what is created by the author by his skill,

3
Eastern Book Company v. D.B.Modak [(2008) 1 SCC 1 (India)]
 labour and investment of capital, maybe it is derivative work. The courts have only to

evaluate whether derivative work is not the end- product of skill, labour and capital which is

trivial or negligible but substantial. The courts need not go into evaluation of literary merit

of derivative work or creativity aspect of the same.”4

Thus along with originality the skill and judgment of the artist is also necessary, which is not

of trivial nature, for any work to be entitled for copyright protection.

1.2 Significance of research problem

In this backdrop of the copyright law as it stands today, arguing in favour of copyright

protection for conceptual art, at the outset may seem the most ridiculous proposition. Some

may even opine that the two are antagonist to each other. It is true that if one focuses on the

dissimilarities between the two one may find plenty of them. Copyright protects the

expression; whereas conceptual art is based on ideas. While law rigidly defines what is

copyrightable, conceptual artists do not believe in defining what ‘art’ is. Whereas most

artists do not believe in placing boundaries on artistic expression, the Copyright law

mandates that the ‘work’ needs to be fixed in some tangible medium.

It is however an irony that though on one hand copyright law seeks to encourage all forms of

artistic creations, on the other hand it does not protect a work just because it is ‘artistic’. In

fact artistic appeal is not at all a criterion for grant of copyright, as will be discussed in this

thesis. This denial of copyright protection to certain classes of

4
Id at Para 30
 conceptual works of art raises important questions as to how to reconcile the differences

between the two seemingly incompatible realms and how to incentivize artists whose works

may defy the strictures of copyright law.

These creations of art, whether in the form of a heap of candy or in the form of a mural

which cannot be categorized as a ‘sculpture’ or in the form of a garden which changes its

shades and form with changing seasons, are ‘creations’ nonetheless. The artists who created

them have put their time, energy and perspective in it. Therefore, if Copyright law must

serve its true purpose then it ought to be able to encompass this important limb of

contemporary art – conceptualism. It is thus important to delve upon and analyze the

difficulties in affording protection to conceptual art and to find out the possible solutions for

the same so that conceptual art may also be treated on the same footing as mainstream art.

1.3 Object of the study

The main objectives of my study are as under

1. To analyze the different forms of conceptual art and if possible to categorize them so as to

facilitate the evaluation of copyrightability of conceptual art.

2. To explore the various philosophical justifications for copyright law in general and

thereafter to analyze as to which school of thought appropriately justifies copyright law from

the perspective of conceptual art.

3. To assess as to whether the doctrine of idea-expression dichotomy is a road block to

integration of conceptual art into mainstream copyright protection and whether there is some

degree of dilution in the severity of the axiom?

4. To analyze the basic requirements for grant of copyright protection in various countries with

special reference to UK, US and India and resultantly to enumerate the various hurdles in

the path of integration of conceptual art within the regime of copyright law in India.

5. To evaluate whether the present copyright regime in India is flexible and competent enough

to engulf the emerging areas of creativity such as conceptual art?

6. If the conclusion of the above is in the negative then the prime object of this research is to

make suggestions for changes in the existing law so as to afford protection to emerging

forms of art especially conceptual art.

1.4 Scope and Limitations of the Research

The arena of conceptual art is fairly new and therefore availability of sufficient material to

research is one the greatest limitations of this research. Under the circumstances the research

is largely based upon drawing analogies and contradictions from existing legal propositions

in US, Common Law Countries and Civil Law Countries. It also cannot be denied that the

notion of conceptual art originated in the west and therefore the analysis of the

legislations and judicial

 pronouncements of western countries renders great insight on the subject at hand as not

many Indian judicial pronouncements are available on the subject.

Further as for the scope and ambit of the research, one of the limitations of the

present Thesis is that the research focuses on artistic works, as opposed to dramatic or,

musical works. Conceptual art, in the understanding of the Researcher would be by and

large confined to expression of artistic ideas in the forms of installations or an arrangement

of things and hence the research is, in that manner, limited to artistic works only. If there is a

branch of conceptualism which delves into other forms of artistic expression, whether in

present or future, that branch would be out of the purview of the present research.

Further it is significant to mention at this stage that the underlying issue while analyzing

copyrightability of conceptual art, as to whether idea itself can be granted protection, is

outside the scope of the present research. Present research specifically focuses on conceptual

artistic works and exploring possibilities of extending copyright protection to them. Though

the present thesis may cursorily touch upon the said issue, yet essentially the present

research does not deal with the issue of possibility of copyrighting the idea itself.

1.5 Research Methodology

The Thesis is based primarily on doctrinal research methodology by the study of various

statutory provisions and judicial pronouncements of various courts in different countries

especially in United States, United Kingdom and India. After adopting a comparative

method, the Researcher has tried to assess the shortcomings of the existing legal framework

in the context of copyright law. The Researcher has

 also analyzed and perused several scholarly articles which have been duly mentioned at the

relevant places in the footnotes.

In the thesis Researcher has tried to assess to the true justification of copyright law and

analyzed the possible hurdles which may come in the way of integration of conceptual art in

the strict regime of copyright law, with reference to the idea expression dichotomy doctrine.

Researcher has scrutinized the essential requirements for grant of copyright law in various

countries but especially in the US and UK as these countries are pioneers in the areas of

emerging forms of art and also development of law in that regard.

Finally Researcher has evaluated various shortcomings of existing legal provisions and the

rational provided in judicial pronouncements. Comparing the present legal scenario with the

objectives of copyright law and its history and development, Researcher has attempted to

highlight the deficiencies in the current approach and also made suggestions to gulf the

existing gap of what the copyright law is at the moment and what it ought to be.

At the same time the Researcher has also adopted Questionnaire method for collecting first

hand information from Indian artists and lawyers and deduced certain important conclusions

based on the responses received.

1.6 Review of Literature

As the topic of research falls within a less explored territory as far as India is concerned,

Researcher has relied upon scholarly articles published by authors in US, UK and other

countries of Europe where this issue of copyrighting conceptual art is already being dealt

with by higher Courts and leading artists. Researcher has based

 the research on erudite articles published in international journals and websites, which have

formed the bedrock for this research. Some of the key articles are as under:

1. Christopher S. Yoo’s article, “Rethinking Copyright and Personhood”5, (2019) discusses

relationship between copyright and personhood based on a vision that regards creative

works as sources of engagement which can develop personality and personhood based on

aesthetics, psychology, and literary theory.

2. Moore, Adam D. in his article captioned “A Lockean theory of intellectual property”6 (1997)

discusses in detail the Lockean theory of intellectual property and how copyright can be

justified from the perspective of John Locke. He argues that grant of intellectual properties

especially copyrights fosters creativity in society and does not hamper it.

3. Hamedi, Afifeh in their article titled “The concept of justice in Greek philosophy (Plato and

Aristotle)”7 (2014) has articulated the philosophies propounded by Plato and Aristotle and

has tried to bring out the similarities and differences between the two.

4. Swanson, Judith A. in his article “Michael J. Sandel’s Justice: What's the Right Thing to

Do: A Response of Moral Reasoning in Kind, with Analysis of

5
Yoo, Christopher S., Rethinking Copyright and Personhood, U. Ill. L. Rev. 1039 (2019).
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1422&context=faculty_scholarship.
6
Moore, Adam D., A Lockean Theory of Intellectual Property, 21 HAMLINE L. REV. 65 (1997)
http://faculty.washington.edu/moore2/TLTP.pdf.
7
Hamedi, Afifeh, The Concept of Justice in Greek Philosophy (Plato and Aristotle), 5 MJSS 1163. (2014).
http://www.richtmann.org/journal/index.php/mjss/article/download/5193/5010.
 Aristotle and Examples”8 (2011) has made an in depth analysis of Aristotle’s theory of law

and philosophy.

5. Finnis, John, in his article “Aquinas’ moral, political, and legal philosophy”9 (2005) has

elucidated the philosophy of Aristotle’s Aretaic Theory of law and its various key points

such as Distributive Justice, Teleology etc.

6. Solum, Lawrence B., in his article “Virtue jurisprudence: Towards an Aretaic theory of

law”10 (2013) critically analyses the Aretaic Theory propounded by Aristotle pertaining to

justification of copyright.

7. Gerber, Joseph AR., in his article “Locking Out Locke: A New Natural Copyright Law”11

(2016) has analyzed copyright law from a teleological perspective as propounded by

Artistotle.

8. Jones, Richard H. in his article “The myth of the idea/expression dichotomy in copyright

law”12 (1990) argues that the traditional distinction between idea and expression is

misguided and irrelevant and explores the scenario where copyright protection and

infringement can be examined without reference to the dichotomy.

8
Swanson, Judith A., Michael J. Sandel's Justice: What's the Right Thing to Do: A Response of Moral
Reasoning in Kind, with Analysis of Aristotle and Examples, 91 BUL Rev. 1375 (2011).
http://www.bu.edu/law/journals-archive/bulr/volume91n4/documents/SWANSON.pdf.
9
Finnis, John, Aquinas’ moral, political, and legal philosophy, SEP (2005).
https://plato.stanford.edu/entries/aquinas-moral-political.
10
Solum, Lawrence B., Virtue Jurisprudence: Towards an Aretaic Theory of Law, ARISTOTLE AND THE
PHILOSOPHY OF LAW: THEORY, PRACTICE AND JUSTICE, Springer, Dordrecht, 1
(2013). http://www.droitetentreprise.com/wp-content/uploads/Aristotle-and-The-Philosophy-of-Law- Theory-
Practice-and-Justice.pdf#page=15.
11
Gerber, Joseph AR., Locking Out Locke: A New Natural Copyright Law, 27 FORDHAM INTELL. PROP.
MEDIA & ENT. LJ 613 (2016). http://ir.lawnet.fordham.edu/cgi/ viewcontent.cgi?article=1664&context=iplj.
12
Jones, Richard H., The Myth of the Idea/Expression Dichotomy in Copyright Law, 10 PACE L. REV.
551 (1990). https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1475&context=plr.
9. Samuels, Edward in his article “The idea-expression dichotomy in copyright law”13 (1988)

has made a detailed discussion on the idea-expression dichotomy including its history and

development. The article also critically analyses the relationship between the idea-

expression dichotomy and other basic principles of copyright law.

10. Drassinower, Abraham in his article namely “A rights-based view of the idea/expression

dichotomy in copyright law”14 (2003) has discussed the relationship between constitutional

guarantee of freedom and author’s exclusive right in his creation. He argues that rights-

based account of the idea/expression dichotomy should serve to challenge the dominance of

the instrumentalist account of copyright law by establishing that there is no need to

conceptualize all limitations of the scope of the author’s copyright as an external public

interest matter. A rights-based account can generate its own affirmation of the limits of

authorial right.

11. Carpenter, Megan, and Steven Hetcher in their article titled “Function over form: bringing

the fixation requirement into the modern era”15 (2013) examines the ways that contemporary

creativity challenges copyright's fixation requirement, both in terms of practical

implementation and also in

13
Samuels, Edward, The Idea-Expression Dichotomy in Copyright Law, 56 TENN. L. REV. 321
(1988).http://www.edwardsamuels.com/copyright/beyond/articles/ideapt1- 20.htm#:~:text=Under%20the
%20approach%20adopted%20by,only%20exact%20takings%20were% 20prohibited.
14
Drassinower, Abraham, A Rights-Based View of the Idea/Expression Dichotomy in Copyright Law, 16 CAN.
JL & JURISPRUDENCE 3 (2003) https://tspace.library.utoronto.ca/bitstream/1807/88486/ 1/Drassinower
%20Rights%20Based.pdf.
15
Carpenter, Megan, and Steven Hetcher, Function Over Form: Bringing the Fixation Requirement into the
Modern Era, 82 FORDHAM L. REV. 2221 (2013) http://scholarship.law.tamu.edu/cgi/viewcontent.cgi?
article=1075&context=facscholar.
 light of the fundamental purpose and policy behind copyright law. They argue that

dropping the transitory duration exclusion for copyrightability would enable fixation to

serve its essential purpose while not discriminating against important strains of

contemporary creativity. Furthermore, removing the transitory works exclusion would better

equip copyright law to reflect the purposes of the Intellectual Property Clause in the US.

Constitution. In the alternate they also suggest that it is nevertheless desirable to allow a

flexible interpretation of statutory language in light of the purposes of copyright and allow

transitory works to come into a safe harbor from the general fixation requirement for

copyrightability under the aegis of the Visual Artists Rights Act.

12. Said, Zahr K. in her article on “Copyright's Illogical Exclusion of Conceptual Art”16 (2015)

argues that copyright illogically excludes conceptual art from protection on the basis of

fixation, considering that the well-settled case law has interpreted the fixation requirement to

reach works that contain certain kinds of change so long as they are sufficiently repetitive to

be deemed permanent.

13. White, Elizabeth in her article entitled “The Berne Convention's Flexible Fixation

Requirement: A Problematic Provision for User-Generated

16
Said, Zahr K., Copyright's Illogical Exclusion of Conceptual Art, 39 COLUM. JL & ARTS 335 (2015).
https://journals.library.columbia.edu/index.php/lawandarts/article/view/2073/1031.
16
Art Institute of Chicago, "Untitled" (Portrait of Ross in LA), 1991.
https://www.artic.edu/artworks/152961/untitled-portrait-of-ross-in-l-a.
 Content”17 (2012) critically examines the fixation requirement in copyright law and how the

flexible fixation standard in different member Countries of Berne Convention impacts the

copyright protection for certain types of user generated content.

14. McCutcheon, Jani, in her article, “Shape Shifters: Searching for the Copyright Work in

Kinetic Living Art”18 (2017) considers the broader implications of Kelley for copyright in

kinetic contemporary art, particularly when that kinesis is generated by living elements. The

article argues that copyright works can be kinetic, and that kinetic works can be fixed,

provided the work is identifiable in the changeable creation. It then investigates some of the

broader practical and policy ramifications flowing from conferring copyright on gardens and

other creations incorporating elements of living kinesis, and explains how the theoretical

possibility of copyright (and moral rights) in gardens is probably eclipsed by a number of

practical obstacles, all of which are ultimately founded on an anxiety about enclosing and

maintaining certainty in subject matter.

15. Gompel, Stef van, and Erlend Lavik, in their article “Quality, merit, aesthetics and

purpose: an inquiry into EU copyright law's eschewal of other

17
White, Elizabeth, The Berne Convention's Flexible Fixation Requirement: A Problematic Provision for
User-Generated Content, 13 CHI. J. INT'L L. 685 (2012).
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1385&context=cjil.
18
McCutcheon, Jani, Shape Shifters: Searching for the Copyright Work in Kinetic Living Art, 64
JCSUSA 309 (2017). https://www.researchgate.net/profile/Jani_Mccutcheon/publication/
315114531_shape_shifters_searching_for_the_copyright_work_in_kinetic_living_art/links/58cb198a
458515b6361b6af8/shape-shifters-searching-for-the-copyright-work-in-kinetic-living-art.pdf.
 criteria than originalit”19 (2013)] examine the rule that no other criteria than originality shall

be applied to determine the eligibility for protection of works, as contained in a few EU

Directives on copyright (i.e. the Computer Programs Directive, the Term Directive and the

Database Directive). Analysing the legislative history of the ‘no other criteria’-clause in EU

copyright law and its equivalent in the national laws of four EU Member States (i.e. France,

Germany, the Netherlands and the United Kingdom), the article observes that the objective

of the rule is to prevent the grant or refusal of copyright by the courts from being dependent

on subjective evaluative judgments about a work’s intrinsic value or worth. They argue that

Judges are not supposed to assess whether a work aesthetically or commercially stands out,

but only need to determine whether it meets the originality threshold. The article

concludes that, since judges sometimes cannot make a clear distinction between protectable

and non-protectable subject-matter on the basis of the originality criterion alone, copyright

law’s concept of originality would fail to adequately serve its discriminatory function,

should the ‘no other criteria’-clause always be taken literally.

16. Adeney, Elizabeth, in her article “Authorship and Fixation in Copyright Law: A

Comparative Comment”20 (2011) discusses the terms authorship and fixation in the context

of Australian copyright law. She argues that if

19
Gompel, Stef van, and Erlend Lavik, Quality, Merit, Aesthetics and Purpose: An Inquiry into EU Copyright
Law's Eschewal of other Criteria than Originality, 236 RIDA 100-295 (2013).
https://pdfs.semanticscholar.org/20e9/6ad4a7dc6b8ff22ca115318960dd77e8cfe5.pdf.
20
Adeney, Elizabeth, Authorship and Fixation in Copyright Law: A Comparative Comment, 35 MELB.
U. L. REV. 677, 682 (2011). http://dro.deakin.edu.au/eserv/DU:30045570/adeney- authorshipand-2011.pdf.
 authorship does not entail fixation, it should logically be possible for a person independent

of the author to reduce the work to material form for copyright purposes which would

expand the range of works protected by copyright and would extend protection to those

works which have never been fixed by their authors.

1.7 Hypothesis
Following are the various hypothesis of the present research:

I. Existing legal regime of Copyright protection in India is apposite to afford reasonable

protection to conceptual art.

II. The doctrine of Idea Expression Dichotomy is a road block to integration of conceptual art

into main stream copyright protection.

III. The age old doctrine of Idea Expression Dichotomy has been diluted and rendered

redundant with the advent of modern art.

IV. An art work ought to be fixed in a tangible medium for more than transitory duration for

getting protection under the Indian Copyright law.

1.8 Overview
The present introductory Chapter I discusses about the brief overview of the Thesis as

well as elaborates upon the significance of the research problem, the Hypothesis and the

research methodology adopted by the Researcher while carrying out the present research.
Whereas Chapter II entails a discussion on the various schools of thoughts that justify

copyright law. The Researcher believes that analyzing the appropriate justification is

important while discussing whether conceptual art can be afforded protection under the

present Copyright regime in India and this discussion can only be accurately concluded

upon understanding the real raison d'être of Copyright law. The chapter makes an indepth

analysis of Utilitarian theory or the incentive theory which propounds that to encourage the

creation of valuable intellectual works it is a sine qua non that artists are granted property

rights in those works. In the thesis the Researcher would attempt to assess to the true

justification of copyright law. The Chapter will also analyse the more popular theory of

personhood propounded by Hegel, which aptly justifies the moral rights of artists. Whereas

the age old Locken theory, would be discussed to check whether it can justify the modern

copyright law in the perspective of contemporary art. It is a general perception that the

Lockean theory more fittingly explains property rights, rather than intellectual property

rights and this general perception will be critically examined in the thesis. Finally the

Chapter will also scrutinize the Aristotle theory which is believed to justify law from a

perspective of the society and legal regime as to how the law ought to be. Upon thorough

examination of all the schools of thought, the Researcher will try to conclude as to which

theory aptly justifies the Copyright law in the context of modern art and especially

conceptualism.

Chapter III of the thesis will attempt to make an exhaustive study of the idea expression

dichotomy doctrine. With the help of various judgments rendered by Indian and foreign

Courts, the Chapter will enunciate the history, origin, development of the doctrine and its

incorporation in the statutory provisions. The

Researcher will try to critically examine the various problems in applying the doctrine and

also attempt to address the crucial question of whether the doctrine has been diluted or

rendered redundant with the advent of contemporary modern art such as conceptual art.

In Chapter IV the Researcher will discuss various definitions of conceptual art and also

elaborate on the difficulties faced in defining a phenomenon such as conceptual art. Owing

to the problems faced in providing a straight jacket formula for defining a conceptual art, the

Researcher will try to examine and decipher certain general themes that are prevalent in

most conceptual arts. Further in the said chapter the Researcher will also attempt to present a

possible non-exhaustive list of categories of conceptual art. The chapter also will introduce

in brief the landmark judgment in Kelley’s case and the Researcher intends to develop the

entire research on the touchstone of Kelley’s gardens as a test case. The Researcher

believes that the landmark case is a perfect test case to analyze and scrutinize the various

hypothesis of this research.

Chapter V would be outlining the major hurdles in path of integration of conceptual art in

the strict regime of copyright protection in India. On basis of various scholarly articles,

international treaties, national laws and judgments of Courts in US, UK, India and other

countries of Europe, the Chapter would elaborate the three principal hurdles that Conceptual

art must overcome before it can be afforded copyright protection in India: Originality,

Fixation and Categorization, if at all these hurdles can be overcome, which would be subject

matter of this research. Under the heading of Originality, the Chapter will be elaborating

upon the various requirements, nationally and internationally for making any artwork

original. By the help of various

judgments the Researcher will attempt to enunciate what exact activities would confer

authorship upon the artist, thereby making the artwork - original. Thereafter the chapter will

examine the requirement of Fixation, which is believed to be requiring a more complex

examination. The Chapter will deal with jurisdictions such as India and UK Copyright

which do not have a formal and express requirement of fixation in tangible medium.

Simultaneously Researcher will also minutely examine the requirements in US Copyright

Law that has mandates fixation in any tangible medium for more than transitory duration.

The Researcher will specifically attempt to demonstrate contradictory application and

interpretation of law by the US Courts to argue that this stringent requirement is necessary

to be done away with.

This chapter will also endeavor to critically examine the landmark judgment rendered in

Kelley’s case to possibly bring out the errors committed in the application and

interpretation of law. Juxtaposing the rational and approach of the US Court with the

judgments of other Courts in Europe the Researcher will try to demonstrate the flaws in the

judgment and Researcher will attempt to devise an argument in support of a broader and

more inclusive interpretations adopted by European Courts. Whereas the US legislation lays

emphasis on fixation of the artwork, Civil Law Countries require that artwork must be in

perceptible format. The Chapter elaborately discussed the different approaches in US, Civil

Law Countries and Common Law Countries. The Researcher will evaluate these different

approaches of fixation and perception and will attempt to harmonise the diverging views, if

possible, to provide the most suitable and apt approach and thereby suggesting the required

amendments necessary for the purpose of integrating conceptual art in the strict regime of

Copyright law in India.

The Chapter will also at length discuss the categorization hurdle, which is a basic character

in Common Law Countries such as India. The Researcher will elaborate on the differences

in the list of protected works in various legal jurisdictions. The Thesis will throw light on the

two different approaches in providing protection to works – one is that of an inclusive list

and other is one that India follows, that of an exhaustive list. The Chapter also discusses the

provisions in this regard in different International Covenants such as the Berne Convention.

The Researcher will critically evaluate and examine the two different approaches to

conclude which approach is best suited for promoting and flourishing of creativity of art,

which is the very object of any Copyright law..

In this background in Chapter VI the Researcher will discuss in detail the empirical data

collected by the Researcher by way of questionnaire method from various artists and

lawyers across India. The Researcher has tried to collect first hand data and will be

analyzing it to draw certain broad conclusions in respect of the hypothesis upon which the

present thesis is based.

Throughout the Thesis the Researcher will be critically evaluating various shortcomings of

existing legal provisions and the rational provided in judicial pronouncements. Comparing

the present legal scenarios with the objectives of copyright law and its history and

development, Researcher will attempt to highlight the deficiencies in the present approach.

Accordingly in Chapter VII the Researcher will assimilate the data and based on which has

the Researcher will conclude the research to answer the hypothesis as to whether the

existing legal regime of Copyright protection in India is apposite to afford reasonable

protection to conceptual art? Ultimately the Researcher will be presenting his suggestions

to gulf the existing gap of what the copyright law is at the moment and what it ought to be.