[Reader-list] Very interesting case

[Lawrence Liang]

I have just been asked to help out with a case which
is very fascinating in terms of the kind of questions
that it throws up about the art in the public domain.

There is a government body in Karnataka called the
Lalit Kala Acdemy, which is  supposed to act as the
custodian of art in Karnataka. These people have a
massive archive, a large part of which has been
created through contributions by various artists or
artists who have sold their works to the academy at
ridiculously low rates to be a part of the permanent
collection in the archive for public display. These
artists range form completely unknown artists to the
modern masters like Yusuff Arrakal. 

In an astonishing move the academy decided a few weeks
ago to sell of a large number of the works ( 800 or
so) to the "general public" (which term of course
includes art dealers) for two reasons. 

1. That they did not have space
2. That they wanted art to be popularly available in
the homes of ordinary people

This act has erupted in a huge controversy in the art
scene in Karnataka, with the artists community taking
umbrage over the fact that they were not informed
about this decision of the government and more
importantly that what was supposed to be a
contribution to the public domain is effectively being
taken outside it.

What is interesting is that it is not a case of
economic incentive for the government because the
works were being sold for as less as Rs. 150 and the
entire amount that they have got out it is
approximately 8 lakhs or so. A number of the artists
reported that even art students had a party buying 
the painting because it was cheaper for them to buy a
painting  and reuse the canvass than to buy a new
canvass altogether. 

The artists in Bangalore see it as an continuing act
on the part of the government to withdraw form the
realms of art and culture and increasing privatization
of the field itself.

I have been asked to provide a legal opinion and
present  a paper on the same on the 6th where the
artists have called for a open conference of the
public community, artists and representatives of the
government.

The legal issues involved range from issues of
contract to bailment to copyright. The line of
argument that I am planning to take is to make a
distinction between the idea of commons or public
domain with that of the "common person" . That is to
say an act beneficial to a common man may still very
much be within the larger politics of enclosures which
is against the idea of the common or public good. Also
trying to see if the moral rights of the author in the
Indian context would include the right of the artists
to challenge an act which takes away form the public
domain a work which
he has contributes specifically to the public domain.

There is an interesting case called Milpurrurru v.
Indofurn from Australia which is a landmark case on 
intellectual property ands cultural heritage. In that
case an individual artists belonging to an indigenous
community had attempted to sell his works. The
community claimed that the works were a part of the
cultural heritage of the community and hence the
artists did not have a right to  sell it without the
prior permission of the community. The question for us
would be whether it is possible to make an argument
for a community of artists in the present context. 

It would be great if  I can get some ideas from the
reader list and also if you are aware of any similar
cases from any other jurisdictions.

Lawrence

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