David Slater, a British wildlife photographer visited a park in Indonesia in 2011. At the park, a crested black macaque got its hands on one of his cameras and took several selfies, including the one accompanying this blogpost. Slater is reported to have said said “They were quite mischievous jumping all over my equipment, and it looked like they were already posing for the camera when one hit the button, … The sound got his attention and he kept pressing it. At first it scared the rest of them away but they soon came back - it was amazing to watch.”
The selfie accompanying this post has become a point of dispute between the Wikimedia Foundation and David Slater since Wikimedia refused to take the image down and has deemed it to be in public domain by displaying the following notice -
“This file is in the public domain because as the work of a non-human animal, it has no human author in whom copyright is vested.”
Contrary to what some news outlets have tried to suggest, even the Wikimedia foundation never really suggested that the copyright belongs to the monkey legally. That was just bad reporting and clickbait headlines on part of Times of India.
I am not very well read on Copyright Law but a cursory reading of the Indian law on the subject i.e. Copyright Act, 1957 seems to suggest that Wikimedia would be right even if all the events had taken place here.
Section 2(d)(iv) read with section 17 makes it clear that the person clicking a photograph is its author and the owner of the copyright so long as the photograph is not clicked as another person’s employee or upon being commissioned by another to click it. The relevant sections are as follows (underline added for emphasis) --
2. (d)(iv) “Author” means -- in relation to a photograph, the person taking the photograph;
17. First owner of copyright.-Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein.
(a) in the case of a literary, dramatic or artistic work made by the author in the course of his employment by the proprietor of a newspaper, magazine or similar periodical under a contract of service or apprenticeship, for the purpose of publication in a newspaper, magazine or similar periodical, the said proprietor shall, in the absence of any agreement to the contrary, be the first owner of the copyright in the work in so far as the copyright relates to the publication of the work in any newspaper, magazine or similar periodical, or to the reproduction of the work for the purpose of its being so published, but in all other respects the author shall be the first owner of the copyright in the work;
(b) subject to the provisions of clause (a), in the case of a photograph taken, or a painting or portrait drawn, or an engraving or a cinematograph film made,for valuable consideration at the instance of
any person, such person shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein.
Since, by no means can it be proved that the monkey was an employee or a person acting for valuable consideration, it is quite clear that under the Indian law as well, Mr. Slater would not be the owner of the copyright despite the camera being his. Thus the wikimedia stance seems sound even when tested on Indian Copyright law.
Does the copyright belong to the Monkey? Is it a ‘Person’?
Now that we established that the copyright will not belong to Mr. Slater, the obvious question that next arises is whether or not the Monkey shall then be the owner of the copyright. As per sections 2 and 17 the would be the author of the photo and the first owner of the copyright, but only if it can be established that the monkey is a ‘person’. Since the word person is not defined under Copyright Act, 1957 we shall have to look into the General Clauses Act, 1897. It states -
"Person" shall include any company or association or body of individuals, whether incorporated or not…
While a simple reading of this would suggest that a Monkey is not defined to be a person, it could be argued that the definition, the way in which is worded only clarifies that in addition to the usual or other meanings conveyed by the word ‘person’, it would also include companies, association of persons etc. The definition does not bar a monkey from being defined as a person at all, though for all practical purposes I think no court would be ready to entertain a claim that ‘person’ includes Monkey.
Can Monkeys be non-human persons?
Though I say it is unlikely to succeed, I would love to see someone try argue that monkeys are ‘persons’ and capable of owning copyright. I think one would almost certainly have to rely on a policy statement from Ministry of Environment and Forests which suggests that animals such as Dolphins may have rights. The statement was issued when the government banned dolphins from circuses or marine park shows. While by no means does a mere statement have the force or weight of law, it could be argued that both dolphins as well as apes or monkeys should be termed as ‘intelligent nonhuman persons’ having some rights though not all.
The ministry is reported to have stated -
Whereas cetaceans in general are highly intelligent and sensitive, and various scientists who have researched dolphin behaviour have suggested that the unusually high intelligence; as compared to other animals means that dolphins should be seen as ‘non-human persons’ and as such should have their own specific rights and is morally unacceptable to keep them captive for entertainment purpose,” the ministry said. <Link><Link>
State as a guardian?
If monkeys or other animals could actually be proved to be ‘persons’ eligible of owning copyright, the next question that would arise would be how would they enforce it in courts or what would they do with their revenue gained through licensing if any. One possible model that could infact work would be with the entire animal kingdom considered to be one large association of non human persons with all the copyrights of selfie clicking animals accruing to it. The state could then be the guardian of this entity and incharge of licensing the images. The funds raised through licensing could be collected in a special fund on animal welfare… The existence of such a model could also possibly extend its own scope to include animal sound recordings apart from selfies!
Note: The copyright of the image used on this page either belongs to Mr. Slater or the monkey or the image is in public domain. It certainly doesn’t belong to me. I believe my usage of the image is permitted under section 52 of the Copyright Act, 1957 as fair dealing for the reporting of current events.
That is all from my end. What do you think about the monkey selfie?
Or do you think differently and believe that the rights of humans who take selfies should be stripped of their human rights?
Do comment below and let me know!Tweet