Digested: UNESCO Legal Handbook for the Artist Community in India

The handbook was published in 2020. Find the full handbook here. 


Introduction to Art Law and the Creative Sector

  • Definition: Art law is a multidisciplinary area comprising intellectual property, contract, constitutional, civil, tax, commercial, and international law. It protects, regulates, and facilitates the creation, use, and marketing of art. It's not a unified legal doctrine but takes from various disciplines to safeguard the interests of multiple players in the art market.
  • Importance: The creative sector is recognized as a significant economic source, contributing to job creation and revenue, as well as social and cultural value. It's crucial that artists are adequately supported, and their artworks are protected, especially given the sector's often informal nature, and lack of information on professional rights.
  • Objectives: The handbook aims to-
    1. Demystify and spread awareness about the law and artists' rights.
    2. Answer frequently asked questions on legal aspects of creation, production, sale, and reproduction of creations.
    3. Provide guidance on due diligence.
    4. Encourage best practices within the art community.
    5. Foster better understanding and real-time enforcement of art law.
  • Players in the Market:
    1. Individual collectors.
    2. Institutions such as museums, foundations, and trusts.
    3. Infrastructural players- dealers, auction houses, artists, heirs, galleries, and service providers (art restorers/conservators, security agencies, art handlers, transport services).
    4. Government bodies- Ministry of Information and Broadcasting, Ministry of Culture, Archaeological Survey of India, Indian National Trust for Art and Cultural Heritage, etc.
    5. International bodies- UNESCO, INTERPOL, and international organizations dedicated to art preservation.


Copyright Terms and Rights

The Copyright Act of 1957 ('the Act') is the primary legislation that protects artists, granting them exclusive rights over their creations.

  • Definition of Artistic Work: According to Section 2(c), "artistic works" encompass paintings, sculptures, drawings, engravings, photographs, architecture, and works of artistic craftsmanship. The recognition of a work as being artistic is independent of its subjective quality- if it fits the description, it is a work of art.
  • What Copyright Protects: Copyright is an exclusive right for authors to control their art, ensuring minimum safeguards and rewarding creativity. It protects the expression of ideas, not the ideas or concepts themselves. To gain protection, the work must be original and in a physical form.
  • Author vs. Copyright Holder:
    • The artist/ creator is the author of an artistic work.
    • The copyright holder may differ:
      • If created in the course of employment or under a contract of service, the employer is the first owner of copyright, unless a contract states otherwise.
      • If a work is commissioned for a consideration, the person commissioning the work is the first copyright owner, unless there's an agreement to the contrary.
  • Term of Copyright: Copyright lasts for the lifetime of the artist plus 60 years. After the artist's death, copyright transfers to their heirs for 60 years. Copyright does not exist in perpetuity; after its term, the work becomes copyright-free and enters the public domain.
  • Exclusive Economic Rights of Authors: These rights allow artists to derive monetary benefits from their work and include the rights to:
    • Reproduce: Preventing others from making copies of the work without permission (e.g., printing editions).
    • Distribute or Communicate the Work to the public: Exclusive right to issue physical copies to the public, preventing unauthorized commercial exploitation.
    • Adapt or make derivative works: Preventing rearrangement or alteration of the work into another form without prior written consent. This includes converting artistic work into a dramatic work or creating prints/sculptures from a painting.
    • Include the work in any cinematographic film: Requires prior written consent.
  • Fair Dealing Exemptions: Section 52 allows for certain uses of copyrighted work without the artist's prior permission, as they do not amount to infringement. The wider-known term 'Fair Use' translates to 'Fair Dealing' in India. These include uses for:
    1. Private/ personal research
    2. Critisism or review
    3. Reporting current events
    4. Reporting a court case
    5. Parliamentary usage
    6. Certified copy making
    7. Public recitation in small extracts
    8. Education
  • Copyright Registration: While copyright is automatically created when an original work is made in a material form, registration is not mandatory in India. However, registration provides for strong proof during infringement suits and criminal proceedings, offering details of first publication and making certified documents admissible as evidence in court.
  • Assignment of Copyright: Artists can transfer their copyright, but the assignment must be in writing and executed by the artist or their authorized representative. The document must specify the work, rights assigned, territorial extent, duration, and royalty payable. If not specified, the assignment is deemed for India and lasts a five-year period. If rights are not exercised within one year, the assignment expires (unless otherwise specified).
  • Derivative Works (Adaptations): These involve converting, altering, or rearranging a copyrighted work into another form (e.g., prints of a painting, sculpture from a painting). Prior permission from the copyright holder is required to create an adaptation; otherwise, it constitutes infringement.
  • Creative Commons Licenses (CCL): These are public licenses that allow creators to specify how others can use their work, moving from "all rights reserved" to "some rights reserved". They are based on copyright principles but make works more accessible for use, adaptation, and commercialization, subject to specific conditions. There are multiple types of CC licenses, each with different conditions for use, such as attribution (BY), attribution- noncommercial (BY-NC), share-alike (BY-SA), non-commercial (NC), no derivatives (BY-ND), attribution-noncommercial-sharealike (BY-NC-SA), and attribution-noncommercial-noDerivatives (BY-BC-ND). Read more about Creative Commons Licenses here.


Author's Special Rights: Resale and Moral Rights

These rights are specifically designed to empower artists beyond their economic pursuits, acknowledging their continuous connection to their creations.

  • Resale Right (Droit de Suite):

    • Addresses the imbalance where artists often sell work cheaply, while buyers profit from subsequent resales. It allows artists or their heirs to receive a percentage of the resale price. This is an economic right.
    • Recognized under Section 53A of the Act, adopted through a 1994 amendment.
    • Key Provisions: Applies to the resale of an original copy of a painting, sculpture, drawing, or manuscript. The artist, first owner or legal heirs have a right to a share of the resale price.
    • Term: The resale right lasts for the duration of copyright.
    • Royalty Rate: The share, fixed by the Copyright Board, shall not exceed 10% of the resale price. This right applies to sales above ₹10,000/-.
    • Nature of Right: It is an inalienable and personal right. It subsists for the entire copyright term (lifetime of author plus 60 years). It remains with the artist/heirs even if copyright is assigned.
    • Collection in India: India has no central collecting society for resale royalty. Artists are expected to collect it independently. Disputes are referred to the Copyright Board.

  • Author's Special/ Moral Rights (Droit Morals):

    • Origin: Rooted from Europe, these are personal rights of a creator in their work other than economic.
    • Rights:
      • Attribution/Paternity: The artist's right to claim authorship of their work and be recognized as the author.
      • Integrity: The artist's right to prevent wrongful distortion, mutilation, or improper modification of their work that would be prejudicial to their honor or reputation.
    • Term: They exist in perpetuity and cannot be waived even after copyright assignment. They also pass on to legal heirs after the author's demise. The scope and application of moral rights vary by country (e.g., in the US, they can be waived; in the UK, they exist for the copyright term but must be asserted).
    • Landmark Case: The civil suit in Amar Nath Sehgal v. Union of India is a significant authority on moral rights.


FAQs

Daily Art Practice

  • Using copyrighted material (e.g., Ads, Youtube): Permissible if copyright has expired (over 60 years) or for limited "fair dealing" purposes (criticism, review, education). Otherwise, a license from the copyright holder is required. The "de minimis" principle may also apply if use is minimalistic and results in no significant copying. While YouTube is freely accessible, videos are copyrighted. Unless your use falls under "fair dealing," it infringes copyright. Obtaining licenses is recommended.
  • Unauthorized reproduction of your work: As the copyright holder, you have the exclusive "right of reproduction." Any reproduction without your permission for monetary gain is infringement. If it falls under the fair dealing exceptions, the reproduction is permissible.
  • Remedies for Fakes:
    • Civil: Artists can file a civil suit for damages, compensation for lost revenue, or to have infringing copies handed over or destroyed.
    • Criminal: Copyright infringement is a crime under Section 63 of the Copyright Act (punishable with jail and/or fine). Indian Penal Code 1860 provisions also allow criminal complaints for cheating, forgery, stolen property, and criminal conspiracy (attracting up to 7 years imprisonment).
    • Customs Seizures: Infringing copies can be seized at ports of entry under the Customs Act, 1962, if rights are registered with customs authorities.
  • Studio Assistant claiming material: If the work was made during employment, the employer (artist) is the first copyright owner, unless there's an agreement stating otherwise.
  • Pictures/videos in studios/museums: Unauthorized individuals need your permission to take photos or videos of your work. Signs can be placed to prohibit unauthorized recording. Fair dealing (e.g., personal use, study) is an exception.
  • Organizations selling merchandise of your artwork: Making merchandise (adaptations) requires a specific written agreement; display rights do not automatically extend to making merchandise. You always retain the right to resale royalty.
  • Illegal prints: If prints were made after you withdrew permission, you can file a lawsuit for breach of agreement and infringement, requiring documentary proof. Similar action can be taken against individuals commercially using infringing copies.
  • Protection for works on social media: Copyright law applies for online works.
    • Impersonation/Misrepresentation: Civil lawsuits for infringement of moral right of paternity (right to be recognized as author) and copyright infringement (unauthorized copying/promotion). These are also punishable under Section 66C of the Information Technology Act, 2000.
    • Safe Harbour Procedures: As intermediaries, platforms like Instagram, Facebook, and Twitter are not accountable for user uploads (Section 79, IT Act 2000) but offer take-down procedures.
    • Prevention: Use watermarks, copyright marks, and disclaimers on artwork descriptions.
  • Trolling on Social Media:
    • Artist: You have the moral right of integrity to restrain actions that bring disrepute or dishonor to your work. False or derogatory statements may be actionable under defamation laws and the right to publicity. Courts balance these rights with freedom of speech.
    • Gallery/ Curator: If your reputation is harmed, you can initiate legal action for defamation.

Business

Galleries usually act as agents, with duties recognized under the Indian Contract Act, 1872 (e.g., duty to follow mandate, remit money, not make secret profits). Oral agreements are less enforceable and prone to ambiguity. Written agreements clearly define duration, territory, exclusivity, payment, commissions, copyrights, shipping, title, and termination.

Outright sales are rare, but should be documented in writing, covering sale price and retained rights, ideally with a Certificate of Authenticity. Consignment Agreements should be executed when sending work on consignment. It's often a one-page form referencing the representation agreement, specifying consigned works, selling price, and consignment duration.

It is crucial to ensure the consignment agreement specifies the gallery/third party's requirement to maintain insurance and who receives proceeds in case of loss, theft, or damage. Emails and other electronic documents are admissible evidence in Indian courts. However, the primary responsibility for safe delivery usually lies with the shipping agency, and contacting them for proof of delivery is recommended.

Artist's Right to Know Buyers: Legally exists because of the resale royalty right (Section 53A, Copyright Act) which entitles you to a share of resales. However, agents or organizational buyers might make it difficult to know the ultimate buyer.

Resale of work through an Auction House: Your right to Resale Royalty (Section 53A, Copyright Act) applies when your original work is resold by art market professionals.

Commissioned Work, Independent of Gallery Representation: This depends entirely on your agreement with the gallery. If your contract contains an exclusivity clause, creating independent commissioned work could be a breach. Clearly defined contract terms safeguard your interests.

Commission Payments for Assignments: These are subjective, determined by oral or written understanding between the individual bringing the assignment and the artist/collector.

Direct Sales to Collectors when Represented by a Gallery: Governed by the artist-gallery agreement and the nature of their relationship. Again, narrowly defined contract terms are crucial.

Remedies against a Defaulting Buyer:

  1. Civil Lawsuit: If an agreement exists and the buyer defaults on payment, a civil lawsuit can be filed to enforce payment (Specific Relief Act, 1963).
  2. Jurisdiction & Governing Law: Contracts should specify the city, state, country for dispute resolution and the governing law, as litigation can be time-consuming.
  3. Arbitration: Increasingly preferred as a dispute resolution forum, where a neutral third party (arbitrator) hears the case and passes a final award. The advisable hierarchy is negotiation, mediation, followed by arbitration, finally litigation when the other options are exhausted.
  4. Damages: If a buyer backs out of a commitment, preventing the artist from selling to another, a civil lawsuit can be filed to claim compensation (damages) for lost profits.


International Organizations and Comparative Law

  • Copyright Societies (CS) & Collective Rights Management Societies (CRMS): These organizations collect and distribute royalties to artists and license copyrighted works on their behalf. They help artists monitor use, negotiate licenses, and collect fees. They can be non-profit or for-profit and are often members of CISAC.
    • DACS (Design and Artists Copyright Society) in the UK: Manages copyrights, collects, and distributes royalties (including Artist's Resale Right) for various visual artists, and provides digital image solutions.
    • AUTVIS (Associação Brasileira dos Direitos de Autores Visuais) in Brazil: Manages visual artists' copyrights, administers licensing, and represents affiliates globally through reciprocal agreements.
    • ARS (Artists Rights Society) in the USA: A copyright licensing and monitoring organization that represents intellectual property interests of visual artists, lobbies for copyright provisions, and has bilateral agreements with sister organizations. Notably, it advocates for resale royalty rights, which are not currently recognized federally in the USA.
  • Artists Associations: These organizations provide various services and assistance, including legal aid, contract assistance, and addressing social and economic rights.
    • Maison des Artistes (France): Manages social security coverage for visual artists and offers general interest activities like legal aid and accounting assistance.
    • MAV (Asociación de Mujeres en las Artes Visuales Contemporáneas) in Spain: A group of professional women artists focused on increasing women's participation, combating discrimination, and researching best labor practices.
    • Trabajadores de Arte Contemporáneo (Latin America): A collaborative initiative to establish good labor practices in contemporary art, drafting agreements for negotiation between artists and institutions.
    • India: While there are growing societies and collectives, there are few specialized bodies to defend visual artists' social and economic rights, help with contracts, or report complaints regarding freedom of expression or workplace harassment.
  • Comparative Analysis of Copyright Provisions: After page 32, the handbook includes graphical tables comparing copyright laws across India, the US, and the UK, covering:
    • Relevant legislations 
    • Definition of copyright
    • Works in which copyright subsists
    • Term of copyright protection
    • Who can apply for registration and place of registration (not applicable for UK as registration is not required)
    • Permitted use without license (fair dealing/fair use)
    • Procedure and fee for registration
    • Registration of unpublished works
    • Moral rights (Right to Attribution/Paternity and Integrity Rights) and their duration/waivability
    • Resale Royalty Rights
After this table, there is an additional table comparitively analysing resale royalty across India, Germany, the US, the UK, France and Australia, covering provisions, covered works, beneficiaries, eligible sales, royalty rates, collecting societies, and the collecting mechanism.


Updates

This handbook was published in 2020. As of 2025:

  1. There is a major push toward reforming the Copyright Act to address modern digital challenges. At the 68th‑anniversary event held in New Delhi on June 4, 2025, experts discussed issues such as AI‑generated content, NFTs, digital rights management, statutory licensing models for streaming, and strengthening enforcement in cyberspace. A forward‑looking vision document outlining India’s copyright priorities up to 2030 also emerged from the event. Over 3.5 lakh copyrights have been registered since digitization of the registration process, reflecting increased awareness among creators nationwide 
  2. The Ministry of Commerce has proposed new rules (Rule 83A) mandating all license fee collections, particularly for literary works, music, and sound recordings to be handled via online payment platforms only. The move aims to increase transparency, improve auditability, and reduce unreported or informal royalty settlements. While the proposal targets licensees/transactors in the digital economy, concerns remain over accessibility for creators in Tier‑2/3 cities who may lack digital infrastructure.
  3. Recognizing the growing significance of generative AI, the government has formed an eight‑member committee under DPIIT to examine whether the Copyright Act is adequate to govern AI‑created works. The panel is reviewing whether storage, reproduction, or output from AI qualifies as infringement and if fresh provisions are needed for authorship attribution and licensing. This was spurred by high‑profile cases including actions brought by major publishers and news portals (NDTV, Indian Express, HT) against OpenAI for alleged unauthorized use of content in AI training. That panel will publish a working paper with policy recommendations during 2025.
  4. Courts have begun clarifying the intersection of copyright and industrial design. A 2025 Supreme Court landmark judgment (Cryogas Equipment Private Limited v. Inox India Limited & Ors.- Special Leave Petition (C.) No. 28062/2024) held that copyright protection ceases if a design is industrially applied over 50 times, unless the design is registered under the Designs Act; and that aesthetic appeal is key to protection under either regime. The judgment establishes a two‑pronged test distinguishing technical or functional designs from copyrightable works.
  5. Purely machine‑generated immaterial works without meaningful human intervention are not eligible for copyright. When a human provides prompts and creative direction, the output may be protected and attributed to that human, consistent with Section 2(d)(vi) of the Act, which defines authorship of computer‑generated works as the person who causes them to be created.


I hope this overview gives you a foundation in understanding the legal aspects of your artistic practice. This post is for educational purposes and constitutes fair use under Section 52 of the Indian Copyright Act. Original document linked above.