The fifth Moghal Emperor Shah Jahan built the Taj Mahal in the memory of his wife Mumtaj, who died in 1631, while delivering the fourteenth child within eighteen years of her married life. Her dead body was temporarily buried at Burhanpur. It was later exhumed and reburied on the Taj ground in Agra.
The Taj is not just a building. It was built by 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
A life-size replica of the Taj Mahal, often described as the world's most beautiful building, is due to open for visitors in Bangladesh.
Bangladesh to build a new Taj
The row began after Ahsanullah Moni, a wealthy Bangladeshi film director, gave the first glimpse of his copy of the Taj Mahal last month. The project has cost about £40 million and is being built about 20 miles northeast of Dhaka, the Bangladeshi capital. To make his Taj, Mr Moni imported marble and granite from Italy and diamonds from Belgium to add to 160kg (350lb) of bronze. He hopes that his version of the mausoleum will attract tourists to Bangladesh, a country that is well off the beaten track for Western holidaymakers.
Construction work began five years ago, but Mr Moni says that he came up with the idea in 1980 when he first visited the real Taj in Agra, northern India. He said that his homage had been built because most people living in Bangladesh where nearly half of the population exists below the poverty line could not afford to travel to India to see the real thing.
Today, even the Sunni Waqf Board, an institution, which is supposed to upkeep the humane face of religion is now disputing over a monument, which was built by violating the Islamic traditions. It has staked claim over Taj Mahal. Next it may claim the ownership of all the monuments of national and international repute from the tourist point of view.
Is the Taj copyrightable?
The moot issue is today that, whether it is possible to claim copyright in a building? The Indian embassy in Bangladesh has voiced its displeasure over the exact copy and is hoping to sue for copyright infringement.
The legal provisions & Conventions to protect copyright
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 as per 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.
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.
From the above explanation we can atleast get an opportunity to analyze the condition of Intellectual property law in India as well as other developed and developing countries. India should probably object on grounds that the fake Taj Mahal in Bangladesh being a copyright violation of the Taj Mahal at Agra, will reduce Indian tourist traffic and profits.
All though significant terms of protection are afforded by copyright law, it seems this is insufficient for historic and culturally significant sites like the Taj. 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. Even though the replica is legally permissible, should it be allowed?
SUBHASIS SEN is a fifth year law student at M.S. Ramiah College of Law, Bangalore.