Everything Subject to Copyright Protection Should Not Eventually Become Fair Game

Everything Subject to Copyright Protection Should Not Eventually Become Fair Game

Recently in Bangladesh, filmmaker, Ahsanullah Moni partially unveiled his copy of the Taj Mahal. He has reportedly spent close to 58 million (USD), importing granite and marble from Italy, and diamonds from Belgium. He even sent architects to India to copy and measure the dimensions of the original Taj. His reasons? He says Bangladeshis "could not afford to go to Agra to see the Taj, so I am bringing the Taj to them". His replica is also said to be part of a giant movie set. This has raised many important issues and concerns. The main one being, whether it is possible to claim copyright in a building?

There are two principal international conventions protecting copyright; the Universal Copyright Convention and the Berne Convention. Both Bangladesh and India are parties to the latter. Where the Berne Convention standards apply, copyright is automatic, existing as soon as the work is created and applying in all countries party to the Convention. The protection must include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, Article 2(1). Works of architecture are included in the list of protected works.  There are also a series of rights that it recognizes, for example the right to make reproductions in any manner and form. However, these exclusive rights are not unlimited. They are only given for a specific period of time after which they are said to enter the public domain, and under the Berne Convention, the general rule is author’s life plus fifty years. From this we see that any copyright term of protection for the Taj has long expired.

Even though the replica is legally permissible, should it be allowed? The Taj is not just a building. It was built by Mogul Emperor Shah Jahan not only as a symbol for the love of his wife, but as her tomb. In addition, despite being one of India’s most prized possessions it also has been considered a site that is in the interest of the international community to preserve. In 1983, it gained the status of a UNESCO world heritage site as a site of outstanding cultural or natural importance to the common heritage of humanity

We should also be mindful that this recent dispute over the duplication of the Taj is just one example of copying. New York City’s very own Times Square, although not a building, has achieved the status of an iconic world landmark holding a significant place in popular culture. However there are many renditions of it in other countries. Another example would be the Tokyo tower, built in 1958 and intended to be an Eiffel Tower-like structure, although perhaps functionally different. So, what exactly constitutes copying, and where exactly do we draw the line? Does functionality change things? Or does just pure imitation qualify? In this case, Bangladesh is to have an actual full size replica of the Taj Mahal, and as mentioned above, it will also have the very same granite, marble, and diamonds. This seems to be full fledged copying that threatens originality and undermines the existence of a country’s cultural heritage. Copying is not always the sincerest form of flattery, especially when it is definitely not flattering. And although it is widely believed that Shah Jahan himself was inspired by Humayun’s Tomb, the Taj Mahal is not an identical replica.

Although significant terms of protection are afforded by copyright law, it seems this is insufficient for historic and culturally significant sites like the Taj. Perhaps everything subject to copyright law should not eventually become fair game. Copyright is meant to encourage the dissemination of ideas, as well as promote the creation of more. Placing restrictions on the entry of sites like the Taj into the public domain might further this purpose by encouraging the creation of new ideas, and equally formidable, yet different works of art generating more wonders of the world.