After speaking at Joining the Dots 2015, Lawrence Liang compiled a list of FAQs on copyright and dance. What’s more, he’s taking questions! Leave your questions in the comments below.
FAQs on Copyright and Dance
What is Copyright?
It is an exclusive right granted to the author of an original work (painting, song, computer programme) for a limited period of time.
Copyright does not protect ideas, it only protects unique expressions of ideas.
An important doctrine in copyright law is the idea-expression dichotomy, wherein copyright does not seek to protect ideas, only unique expressions of ideas. The reason being that if ideas per se were protected it would result in blocking of ideas for future use by people. An example of this dichotomy is: boy meets girl, they fall in love – is an idea, which if protected would result in the end of Bollywood as we know it; however, if a boy meets a girl, in a trip in Europe and then chases the girl all the way to Punjab where she is supposed to get married – we would get Dilwale Dulhaniya Le Jayenge, a unique expression of the boy meets a girl idea.
What are the classes of work covered under the Copyright Law?
There are five broad categories in which copyright subsists:
Original, Literary, Dramatic, Musical and Artistic Works
Literary: Any form of written work. It also includes tables, compilations, computer programmes etc.
Dramatic: Work that can be enacted. It also includes recitations, choreography, dumb shows etc.
Musical: A piece of composition which is a mixture of melody and harmony.
Artistic Work: Any form of visual art. It could include paintings, sculpture, comic strips, photographs etc.
It is important to stress on the word ‘original’. For the purposes of copyright law, the word has a much narrower meaning than it does in common usage. Copyright law is not concerned with the originality of the idea per se, but with the originality of the expression of the idea. For example, if “reaching the moon” is an idea on which X has written a poem, and subsequently, Y decides to write a poem based on the same idea of “reaching the moon”, as long as the poem that Y writes is different in that the words used by X to express the idea are not the same as those used by X, then Y’s poem is an original literary work, according to the copyright law. The choreographer must independently create the work with their own skill, labour or judgment. It has been argued that originality in choreography must be determined by looking at rhythm, space and movement.
Is choreography explicitly mentioned under the Copyright Act? Is it defined?
Sec. 2(h) of The Copyright Act, 1957 defines dramatic work as: “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.”
Indian copyright law does not explicitly mention dance forms as a category of copyrightable works. In order to be eligible for copyright protection, a work of choreography has to satisfy the basic elements of copyrightable subject matter – meaning, the work of choreography has to be original and fixed in a tangible medium for some duration of time, so as to not be fleeting.
Is there a case-law which states that dance forms can be considered as a category under the Copyright Act?
In 2009, the Supreme Court of India clarified in the case of Academy of General Education, Manipal v. B. Malini Mallya, that a dance form would be protected as a dramatic work and not as a literary or artistic work under Indian Copyright law. The Court said that although dramatic works could also be considered a literary work, the fact that the law distinguishes between dramatic and literary works implies that works of performance like performance dance must necessarily be considered a dramatic work. Choreographer’s rights in his or her work have not been explored fully in the legal field in India.
What is fixation?
A choreographic work captured in a medium, which can be used to perceive, reproduce or otherwise communicate in the future is known as fixation. Choreography can be embodied in a film or video recording or be precisely described on a phonorecord, in written text, or in a dance notation system such as Labanotation, Sutton Movement Shorthand, or Benesh Notation.
Can photography be used to fix choreography?
Yes, a photograph can be used to understand a sequence of dance moves and not merely a gesture or a position. Adopting a settled principle in the United State of America, using still photographs to fix a choreographic work isn’t a really good idea (Second Circuit Court in America said, in 1986). In the case of Horgan v. Macmillan Inc. the Court held that still photographs did not provide enough material about the specific attitudes or instants of the choreography, and so could not effectively recreate a staged performance.
Now although the District Court held that there could be no infringement owing to the fact that the pictures did not recreate the ballet – thereby pretty much clarifying the fact that still pictures were a poor way to fix choreography; the case went on appeal and the Court of Appeals found in favour of the Balanchine Estate because it stated that the pictures were substantially similar to Balanchine’s choreography and that readers of Macmillan’s book would instantly connect the pictures to Balanchine’s choreography.
This case is significant because it specifically involves the dichotomy between choreography in performance form and choreography in book form. The court recognized that the form of The Nutcracker ballet was being handled in a different medium than its original, in that it was copyrighted as a ballet in motion, and was being discussed in the photographic medium. However, regardless of the medium, the court decided that a “snapshot of a single moment in a dance sequence may communicate a great deal” and an ordinary observer could perceive much more than a mere gesture or position.
What is the best way to fix a choreographic work?
Notation is a dying art form, and the rare professional who understands it typically charges twelve hundred dollars to fourteen hundred dollars for roughly twenty minutes of ballet. Many small companies cannot afford to pay their dancers for their time, so the laborious and time-consuming notation process may not be a viable option.
The advent and widespread use of video recording systems initially seemed to be an inexpensive and speedy solution to the fixation problem. The cost of video recording can be very little and yet still too expensive for some choreographers. Video recordings often fail to capture the choreographer’s actual intent, since a film version of the work significantly depends on the skill and accuracy of the dancer. A number of elements can go wrong: a dancer may miss a step, execute the movement at a different angle, miss the rhythm or beat of the music, or fail to capture an emotion.
Is there a formal requirement for the registration of copyright over my work?
No, acquisition of copyright is automatic and it does not require any formality. However, in the event that there is a dispute about the ownership of a certain work, then a copyright registration shall serve as prima facie evidence of valid ownership of copyright.
Section 48 of the Indian Copyright Act says:
The Register of Copyrights shall be prima facie evidence of the particulars entered therein and documents purporting to be copies of any entries therein, or extracts therefrom certified by the Registrar of Copyrights and sealed with the seal of the Copyright Office shall be admissible in evidence in all courts without further proof or production of the original.
Non-registration of copyright, however, does not preclude you from exercising any of the rights granted to you in the Copyright Act including suing for infringement of your work. This position has been affirmed by various High Courts in India.
The usefulness of registering your copyright arises from the fact that many enforcement authorities including the police are often not well-informed about the law and tend to assume that no action can be taken without a registration certificate. The Ministry has now made it easier for you to register your copyright by enabling electronic fillings [For more information, log on to: http://copyright.gov.in/UserRegistration/frmLoginPage.aspx]
What is the procedure for registration of a work under the Copyright Act, 1957?
Copyright comes into existence as soon as a work is created and no formality is required to be completed for acquiring copyright. However, facilities exist for having the work registered in the Register of Copyrights maintained in the Copyright Office of the Department of Education. The entries made in the Register of Copyrights serves as prima facie evidence in the Court of Law. The Copyright Office set up to provide registration facilities to all types of works is headed by the Registrar of Copyrights and is located at B2/W3, CR Barracks, Kasturba Gandhi Marg, New Delhi – 11003, Tel. No.: +22 3384387
Can publishing do away with need to register Copyright?
Publishing and registration are two distinct features. Copyright exists in a published work. Publication, as defined under the Act, is the act of making available, a work, in the public domain by either issuing copies or communicating the work to the public. Registration on the other hand serves as prima facie evidence of ownership of copyright. But as stated before, this is not mandatory. In the event that a work is not registered and there is a need to establish the ownership of the work, then the proof of publication can be a useful way of establishing ownership of copyright.
What are the loopholes or tricky areas that a dancer needs to keep in mind when registering copyrights? For example, if I register a certain novel name for my choreographed move, can someone register the copyright for same move by a small change in the name?
If a dancer has choreographed an original move, then there are not many tricky areas that they need to keep in mind. The tricky issues arise at the time of entering into contracts or entering licensing agreements.
There is no copyright that is granted for titles (Francis Day v. 20th Century Fox – AIR 1941PC55). In that case, it was held that a copyright exists for the work but not the title and therefore it is not conceivable that it can happen. However if it is a case of trying to pass off one work as another, relief can be sought.
How long does it take approximately to register copyright for a dance move?
There is no standard answer for this. In the past we have had experiences where it has taken between four to twelve weeks to receive the certificate, but it depends on the backlog in the copyright office. Hopefully with the e-filing facilities, the process will become quicker.
Does an artist need to register only with a view to be protected from commercial exploitation? If I do not want to make work available in the public domain, would it still be advisable to register my dance moves?
Copyright law per se leans towards allowing for the commercial exploitation of a work by its creator. But it is not a requisite and the idea of commercial exploitation need not be a factor in registration. Even if the work is not meant to be made available commercially, the work can be registered. Unlike in patent law, where “industrial application” is a criteria for the grant of a patent, in copyright, you only have to satisfy the criteria of originality. However, if there is no intention of being amenable to the commercial exploitation of the work, it may be an option to consider licensing the work under a Creative Commons license which allows for greater flexibility of use in terms of creating adaptations etc.
What does “licensing” mean? How can I license my work?
As per Section 30 of the Copyright Act, the owner of the copyright may grant any interest in the right by licensing it out, i.e. for consideration, the owner can license the work out to other people, for example, licensing to a company a choreographed dance move to use in an advertisement. Licensing can be either exclusive or non-exclusive. This means that the right may be granted only to one party or that it may be granted to others simultaneously. The license may also determine the specific manner in which the work can be used, for instance it could be restricted by geography (example: Indian license or worldwide license), it could be restricted by time, or it could be restricted by the nature of use (example, commercial or non-commercial use), the number of times (example, a license to perform a play five times).
If I am a student of Bharatnatyam dance form or any other folk dance form, and I have learnt traditional material, can I perform and record this without being bothered about copyright issues?
When performing traditional material, there is no copyright over the material as in legal terms. Either way, the copyright term would have elapsed in any case.
Can I perform these moves even if others have recorded the same pieces earlier? Or do I need to check if the earlier recordings meant the assigning of copyrights to record labels or previous producers and therefore the need for me to take permissions?
When someone has performed a similar piece earlier, they have a right over the performance only, i.e. performing rights, and not the composition itself, and therefore traditional pieces can be performed without having to take permissions from earlier performers or record labels.
What part of traditional knowledge can I copyright? I can’t copyright dance steps, but can I copyright my choreography?
Traditional knowledge cannot be copyrighted – a traditional dance form, in any case would qualify as an idea or a method that cannot be given copyright for fear of unduly restraining creativity, but an original composition to the extent that it does not directly use parts of traditional material, will be accorded copyright protection.
How do I check if any copyright registration has been done for dance moves that have been choreographed after the Copyright Law came into existence?
Entries of all dance moves will be entered in the Register of Copyrights, which can be inspected to check if a particular composition has been registered.
Does a police complaint need to be lodged if you come across an infringement of your copyrights or performer’s rights? Can criminal and civil suits be filed exclusive of each other?
In India, you can have civil and criminal remedies for the infringement of copyright. Civil remedies are normally used when there is a dispute of ownership of copyright, or there is a need to get an injunction order preventing someone from continuing to infringe copyright. There are also remedies for getting accounts of profits and damages arising from the infringer. Criminal remedies are normally used in the case of commercial piracy at a mass scale. Section 63 of the Copyright Act lays down the terms of the punishment for copyright infringement and Section 64 of the Act empowers a police officer, to seize without a warrant, infringing copies.
Yes, you can pursue a civil and criminal action simultaneously since the remedies provided under the two are different.
What are the remedies for infringement of Copyright?
If the work has been copyrighted, the author of the work is entitled to economic rights.
Most choreographers’ concerns stem from the idea that moral rights are principal. Moral rights have their basis in the concept of droit moral, or the theory that artists have the right to have their work attributed to them in the form in which it was created. Unknown choreographers often view appropriately executed performances of their work as free publicity. Additionally, they are often genuinely concerned that without regular performance of their work, the choreographic work might be lost forever. Enforcing moral rights would preserve the choreographer’s vision while encouraging satisfactory execution of subsequent performances.
Artists often rely on moral rights as a way to deal with situations where they have not been awarded credits for their work, or worse for having to endure watching the distortion of their works. With respect to considering the distortion of a work as a cause for moral rights violation, the law in India has changed following the 2012 Copyright amendments, wherein now only that mutilation or distortion of a work that has a direct impact on the artist’s reputation, is to be considered a violation of the artist’s moral right.
Do Moral Rights only vest in the authors or creators?
Post 2012 Copyright Act amendments, performers also have a separate moral right. This is a big chance from the idea that only authors or creators of original work could have moral rights. This considerably strengthens a performer’s cause against unauthorized or inappropriate usage of their performance’s recordings.
What are the remedies for the infringement of Moral Rights of the author?
Section 57 of the Copyright Act protects the author’s right of paternity as also the right of integrity. Distortion, mutilation or modification if established to be prejudicial to the author’s reputation or honour are actionable. This provision thus brought the Copyright law in India at par with the Berne Convention, which governs copyright. The only case-law providing a remedy for the said infringement is the case of Amarnath Sehgal v Union of India.
The Court termed the Moral rights as the soul of the author’s works. “The author has a right to preserve, protect and nurture his creations through his moral rights. A creative individual is uniquely invested with the power and mystique of original genius, creating a privileged relationship between a creative author and his work.”
The Court further held that “Authorship is a matter of fact. It is history. Knowledge about authorship not only identifies the creator, it also identifies his contribution to national culture. It also makes possible to understand the course of cultural development in a country. The destruction or mutilation of a work is prejudicial to the author’s reputation and indirectly affecting the cultural heritage of the country. Knowledge about authorship not only identifies the creator, it also identifies his contribution to national culture. It also makes possible to understand the course of cultural development in a country. Linked to each other, one flowing out from the other, right of integrity ultimately contributes to the overall integrity of the cultural domain of a nation.”
The language of the Section 57 makes it possible to legally protect the cultural heritage of India through the moral rights of the artist. “Intellectual property and knowledge are interconnected. Intellectual property embodies traditional thought and knowledge with value addition. Thus, physical destruction or loss of intellectual property has far reaching social consequence. Knowledge which has grown with it is also lost.”
Further, Section 57 of the Copyright Act, 1957 includes destruction of a work of art as a ground as it is the extreme form of mutilation and reduces the volume of the author’s creative corpus and affects his reputation prejudicially as being actionable under said section. Further, in relation to the work of an author, subject to the work attaining the status of a modern national treasure, the right would include an action to protect the integrity of the work in relation to the cultural heritage of the nation.
Is the right to be recognized as a performer reasonable or does the law protect performers?
Section 38 of the Copyright Act confers rights on performers – a performer’s right is distinct from that of a copyright over a work and separate periods subsist for the copyrighted work itself and the performance of a particular work.
The Act states that if any person does any of the following without the permission of the performer, or for purposes different from the permission granted, then it will be a violation of the rights of the performer.
- Makes a visual recording of the performance.
- Reproduces the visual recording of the performance, which was made either without permission or for the purposes apart from those specifically mentioned in the terms.
- Broadcasts the performance.
- Communicates the performance to the public.
It is also important to note that Section 39A of the Act provides for exceptions to what can be considered as a violation of the rights of the performer.
How can performers ensure that they are protected and what should they do if their rights are infringed in any way?
Performers’ rights are a special class of rights that have been granted. The easiest manner to ensure that your right as a performer is protected and it can stop any person from filming/recording your performance without permission. And in the event that they do it in a clandestine manner, then you can take action against it in the same manner that you would if you were taking action for violation of your copyright.
What are the fair uses of performer’s rights?
Under Section 39 of the Copyright Act, the use, consistent with fair dealing, of excerpts of a performance for bona fide purposes such as teaching or research or such other acts, do not constitute an infringement of the performer’s rights.
What are the rights that a performer has over their performance?
As a performer, you have legal rights that can help you protect your performances, preventing their undue exploitation by others, and these rights include copyrights, performer’s rights, moral rights (explained above) and publicity rights.
Indian Copyright Act, 1957 defines performers to include actors, singers, musicians, dancers, acrobats, jugglers, conjurers, snake charmers, persons delivering a lecture or other persons making a performance (This is as per Section 2(q) of the Copyright Act, 1957 as amended in 1994). A performance as defined by the same statute, refers to any visual or acoustic live presentation made by one or more performers. (Again, this is as per Section 2(qq) of the Copyright Act, 1958 as amended in 1994. Both definitions have been retained in the Copyright Act, 2012 – which is the most recent operational Copyright statute in India).
A copyright doesn’t extend to the live performances of the body of work owing to the medium fixation issue involved in copyright. The law still recognizes the need to protect an artist’s rights inherent in his or her performance, and that’s what Performer’s Rights are essentially about.
Performer’s Rights basically translate into rights that prevent unauthorized recordings of your performance, or their sales and reproductions.
The amended provisions of the Copyright Act (in 2012) make it clear that the scope of performer’s rights now extends to the reproduction, issuance, communication, sale and licensing of the audio/visual recording of your performance. A performer gets to keep the rights over a performance’s recordings so long as the recording hasn’t already been communicated or broadcasted to the public
What happens if the performance is a part of a cinematographic work?
If your performance has been incorporated (with your consent of course) in a cinematographic work, then the performer’s right does not extend to this recording anymore because the film’s producer now owns that performance as a part of his or her cinematographic work. However, the rights over using the footage of your performance are limited to usage in that specific movie.
Also, extinguishing Performance Rights doesn’t mean that you’re not going to be entitled to royalties in case your performance is going to be used for commercial purposes outside the movie.
If a student who is permitted to record tuitions or lessons given by the Guru decided to commercially exploit these recordings later, would it be considered as an infringement of the Guru’s rights?
As per Section 39, the making of a recording for the private use of a person is lawful; however, by Section 38(3) if the use is something different from the consent given, it would be considered as an infringement. In this case, if the Guru has permitted only recording but not commercial exploitation, it would be considered as an infringement of rights. Secondly, the defence in Section 39 is only for bona fide uses, and if the students wanted to convert the recording into a commercial one, then it would cease to be bona fide.
At almost every dance festival, concert or a private concert, live performances are recorded by organisers/ collectors/ personnel handling sound systems/ and members of the audience without the permission of the artists. Letters of invitation sent by organisers to dancers only state terms and conditions for the performance. Audio and video recordings are not mentioned in the correspondence exchanged between the two parties and yet concerts are recorded. In this situation, do artists have the right to refuse to let their performances be recorded?
Yes, you have a right to refuse the recording of your performance. Section 38 clearly states that any recording without your permission, and without your laying down the terms, will be in violation of the rights of the performers. The only exceptional case in which a person can make a recording is if the visual recording is made for the private use of the person making such recording, or solely for bona fide purposes like teaching and research.
Usually dance performances involve a main artist accompanied by one or more accompanying artists such as background dancers. Sometimes verbal permission to record the concert is sought from the main artist by the organisers, but accompanying artists are not extended this basic courtesy. Would you say that accompanying dancers also have a right to object to recording of their performances?
For the purpose of the Copyright Act, it is clear that each and every dancer is a performer and in the event that a person wants to record the performance they will need to have a consent form from each of the dancers.
Section 2(q) of the Copyright Act expressly states that “performance” in relation to performer’s rights means any visual presentation made live by one or more performers.
The exception to this being that if a contract was signed with an agent or person representing or acting on behalf of all the dancers and the contract had expressly included the right to record the performance.
Is permission in writing required from all members of the ensemble, or is it enough to have a verbal understanding?
The law merely provides that the consent of the performer is necessary but it does not state that the permission has to be in writing. However, for the purpose of clarity of recording and in the interest of avoiding any dispute on the point, it may be a better option to have the consent in writing.
Most organisers coax dancers into permitting recording of live performances saying that they maintain an archive. However in reality, the archive is a private collection that is housed in the organiser’s bedroom or living room and accessing that collection remains virtually impossible for dance students and dance lovers. What then is an archive? And can such private collections be termed illegal if written permissions from dancers are not available with the collectors?
There is unfortunately not much clarity on this issue. As far as the recording of performances are concerned, a person may record the performance for private uses. But the provisions for dealing with the recording of performances do not speak about archives. The provisions however does mention recordings which are made “solely for purposes of bona fide use of teaching or research”.
On the other hand, Section 52 of the Copyright Act deals with fair dealing with respect to other works provides for an express exception for libraries and archives, as well as for reproduction from libraries and archives.
Section 52(o) for instance allows for the making of not more than three copies of a book by or under the direction of the person in charge of a public library for the use of the library if such books are not available in India.
Section 52(p) allows for the reproduction, for the purpose of research or private study or with a view to publish, of an unpublished literary, dramatic or musical work kept in a library, museum or any other institution accessible to the general population.
Would it possible to lodge a formal legal complaint against such collectors? Can their premises by raided for illegal possession of choreographic materials? Which body or organisation or branch of the government would look into these issues?
This is an area which is perhaps better settled by conversation and understanding than using the brute force of law. The role of collectors in the preservation of dance forms and other cultural practices also have to be accredited. While some of the practices of collectors such as private hoarding may be disagreeable, or if they attempt to make commercial uses through smuggled collections this may be a question of ethics and etiquette. And perhaps the time is right for developing a set of protocols acceptable to all artists and collectors.
In recent years, many archives or so-called archives as well as private collectors have offered their collections for sale to recording companies. Even main artists and their legal heirs have been known to offer recordings of live performances to recording companies. In such situations, all negotiations and permissions are concluded with the main artist alone and very often, no assignments are taken from the accompanying performers. Neither are they paid a penny for the sale of their work, while the main artist is paid large sums of often to the tune of several lakhs. But for the fact that they are acknowledged sometimes on the jacket of the album it is almost as if the accompanying performers had never contributed to the dance at all. The current trade practice is for the recording company to conveniently ask the main artist or the heirs to indemnify them against all third party claims. In instances like this, where no assignment has been obtained from accompanying performers, can an accompanying dancer claim his due from the company and/or the main artist? If so, what course of action would you suggest?
As explained earlier, for the purposes of Section 38 of the Act, the definition of a performer in Section 2(q) defines “performance” in relation to performer’s right to mean any visual presentation made live by one or more performers. This clearly includes all accompanying musicians and performers.
In the absence of any contract or any terms of employment which assigns the performers rights to either the main artist, or to the organizer of the show, all commercial transactions involving the performance such as selling the recording etc. should be done with the consent of all the performers. If the main artist has given an indemnity against third party claims, and has received any remuneration for the recording of the performance, then the accompanying dancers will have a right of action against the main artist. As with many other provisions, there is a big gap between what exists in the law and what exists in practice. In reality, given that many artists are given a short thrift by the organisers and by the main artist, it may well be worthwhile to increase awareness in these matters and to develop protocols which ensure fair and equitable distribution of profits arising from the sale of recordings of a performance.
Since the Copyright Act was amended in favour of performers on 10th May 1995, does it mean that someone who has a bootlegged recording of a live performance made before this date, can sell it to a dance company and publish it or use it for commercial gains without compensating the participating performers?
Unfortunately, since Performer Rights did not exist before 1995, any recording of a performance made before 10th of May, 1995 would not be an infringement of the provisions, neither would any sale of the performance violate the provisions.
What constitutes traditional knowledge vis-à-vis dance? Does it relate to a particular period or type of dance? Can film dance also be called traditional dance, since it has a long history right through the twentieth century?
Traditional knowledge generally refers to the collective knowledge inherent to a particular culture or religion, such as Ayurvedic remedies. The phrase “traditional knowledge” covers a wide gamut from scientific knowledge to cultural expression.
The World Intellectual Property Organization (WIPO) classifies dance under traditional cultural expressions. “Traditional cultural expressions” or “expressions of folklore” are any forms, tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested and comprise the following forms of expressions or combinations thereof:
- Verbal expressions such as: stories, epics, legends, poetry, riddles and other narratives – words, signs, names and symbols.
- Musical expressions such as songs and instrumentals.
- Expressions by action such as dances, plays, ceremonies, rituals and other performances, whether or not reduced to a material form.
There is a distinction that can be drawn between traditional knowledge and expressions that have entered public domain by having the term of copyright lapse. Classifying something as “traditional knowledge” is not a function of having a history throughout the twentieth century – such as filmy dance moves – which is ultimately only a few generations old in comparison to the other forms, and more importantly, developed at a time when copyright jurisprudence had already evolved as a legal concept.
Traditional cultural expressions pose a problem for copyright because copyright is built on the idea of the sole author, on ideas of originality and individual ownership. Traditional cultural expression is marked by a more fluid idea of originality and is generally marked by a collective rather individual ownership.
Traditional dances have been used by film makers on more than one occasion with or without acknowledgements. The acknowledgements appear in different ways in the film credits and/or on the albums. Here are some samples:
- Nagada Sang Dhol – Traditional Raas-Garba in Ram Leela
- Karishma Kapoor performing Kathak in the movie Jeet (1996)
- Surr Mere Ang Main Basse Hain – Mission 369 was performed through Bharatnatyam
What are my responsibilities if I want to use traditional knowledge? How do we acknowledge and who do we offer payment to in case of the use of traditional knowledge?
This is an area that has been the cause of some concern for many people. On one hand, number of researchers have demonstrated how the interaction between folk dance forms and film forms has always existed in India to the mutual enrichment of both forms. And yet at the same time, when dances adopted by the Hindi Film Industry are folk/traditional in nature, rarely are the folk dancers compensated. It is difficult to apply the traditional copyright norms in cases like these since it is almost impossible to identify a single author, since these are forms that have travelled across regions, time, cultures and languages. There are similarly other areas where such questions have been posed, for instance the use of traditional bio-genetic knowledge in the use of modern pharmaceutical industries and for bio-technology. In these areas, there are now established norms of benefit sharing, and what is urgently required is the development of norms that allow for such uses.
A tricky issue that has plagued the relationship between traditional knowledge and intellectual property globally is the fact that there is a danger of trying to fit traditional knowledge within the parameters of how modern intellectual property understands the idea of knowledge and culture and there is always a risk of converting cultural expressions into commodities and property. This is an important area of future research and strategizing and perhaps this conversation could be the starting point for us to deliberate some of these difficult issues.
We perhaps need to begin with the premise that there may be dancers who want to use folk dance in an ethical and responsible manner and then work out a set of guidelines or best practices to deal with issues of credit and royalty payment.
As a dancer do I have to patent my choreographed moves that I may have created? How different is that from registering copyright?
A patent cannot be granted for a dance move. Therefore, the only protection to such a creation is copyright, whether registered or not.
How does the idea-expression dichotomy work in choreography?
Dance blurs the lines demarcating idea and expression. On one hand, it is broadly recognized that all dance forms are derived heavily from the public domain, yet at the same time, there is also a recognition that there is rampant copying in choreography. To determine infringement of in choreographic works, we will have to overcome the idea-expression dichotomy. For instance:
- Is doing the Macarena to you an idea of an expression?
- Would doing the Macarena with reversed steps constitute a new expression of the same idea?
- Would doing the Macarena in a Raas-Garba setting constitute a new expression of the same idea?
- Is there an idea behind the particular movement of the dance step?
- Are these movements of a dance step, an idea in themselves?
- How similar should the dance moves be to constitute an infringement?