AR6703 Professional Practice and Ethics

UNIT – 4 LECTURE BY A.SIVARAMAN

LEGAL ASPECTS AND LEGISLATION

1. COPYRIGHT

Copyright comprises a bundle of rights which exists in various types of works including:
 Literary works such as books, pamphlets, magazines
 Dramatic works
 Music
 Artistic works including photographs
 Films
 Artistic architectural works

Copyright is the exclusive right as defined by the copyright Act, 1957 to do or to authorize the doing
of certain acts in respect of these works. Some of these rights are:
 To reproduce the work in any material form
 To publish the work
 To perform the work in public
 To produce, reproduce, perform or publish any translation of the work
 To communicate the work to the public
 To adapt the work
 To translate the work
 To include the work in a cinematograph film

FAIR USE OF INNOVATIONS

India Law does not specifically speak of fair use. However, there are a number of exceptions of
copyright which are listed in the copyright Act. The bulk of these exceptions allow the use of
copyright material without a license for the purpose of:

 Research
 Review
 Criticism
 Education

The Act spells out exactly which acts do not constitute an infringement of copyright. Some of these
acts are:
 the reading or recitation in public of any reasonable extract from a published literary or
dramatic work
 the performance of a literary, dramatic or musical work by an amateur club or society, if the
performance is
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  given to a non-paying audience, or for the benefit of religious institution
 the publication in a newspaper, magazine or other periodical of a report of a lecture delivered
in public
 the making or publishing of a painting, drawing, engraving or photograph of a work of
architecture or the display of a work of architecture
 the reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial
proceeding or the purpose of a report of a judicial proceeding

OWNERSHIP OF COPYRIGHT

Usually, the first owner of copyright in work is its author.

The ‘author’ is:
 in relation to literary or dramatic work, the author of the work
 in relation to a musical work, the composer
 in relation to an artistic work other than a photograph, the artist
 in relation to a photograph, the photographer
 in relation to a film, the owner of the film at the time of its completion and
 in relation to a record, the owner of the original plate from which the record is made, at the
time of the making of the plate.
 Since this is the law, this general rule is obviously subject to a number of exceptions.

For Example
 The person who commissions a photograph is usually the first owner of the copyright in the
photo if he has paid for it to be taken.
 An employer is usually the first owner of the copyright in works which his employees make in
the cores of their employment under a contract of service or apprenticeship
 Subject to contract, the Government is the first owner of the copyright in a government work.

THE TERM OF COPYRIGHT

Copyright does not last indefinitely.
The term of copyright is sixty years .However the term begins at different times depending on:
 the type of work and
 whether or not the author is known
Some of the circumstances for which the Act makes provision are:
 if a literary work whose author is known has not been published at the time of the death of
its author, the term begins after it has been published.
 in the case of a photo or a film, the term begins after its publication

ESSENTIALCHARACTERESTICS OF COPYRIGHT (e.r.t architecture)

1. It is right of negative nature.
2. Copyright shall subsist in the work of architecture located in India and not applicable to works
situated out of the country
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 3. It subsists only in artistic character and design and not to extend to process or methods of
construction
4. The owner of the copyright can assign such rights to others in writing and against
consideration.
5. The normal term of copyright is fixed to be the life of the creator architect and a period of 60
years after his death.
6. The reconstruction of a building or structure in accordance with the architectural drawings
or plans by reference to which the building or structure was originally constructed will not be
an infringement of copyright provided original construction was made with the permission of
the owner of the copyright.

ASSIGNMENT AND LICENCES

The copyright if any work can be assigned. This can be done
 either wholly or partially
 either generally or subject to limitations
 either for the whole term of the copyright or any part of the term

An assignment or license must:

 be in writing
 be signed by the assignor / licensor or by his duly authorized agent
 identity the works assigned / licensed and specify the rights assigned / licensed
 Specify the duration and territorial extent of the assignment / license.
 Specify the amount of royalty payable, if any, to the author or his legal heirs
 An assignment may be revised, extended or ended by the parties on terms they agree to. If
the assignee or licensee does not make use of the rights assigned or licensed, as the case may
be, within one year of the assignment or license, the agreement automatically lapses.

THE REGISTATION OF A COPYRIGHT

 The moment a work is created, copyright subsists in it. This copyright which has already come
into existence can be registered.
 The author or publisher of a work, or the owner of or other person interested in the copyright
in any work may make an application to the registrar of copyrights to have the copyright
registered.
 On the receipt of an application in respect of any work the Registrar of copyrights may, after
holding an inquiry enter the particulars of the work in the register of copyrights.
 Registration is not essential. It results in the names or titles of works, and the names and
addresses of authors, publishers and owners of copyright being entered in the register of
copyrights.
 Entries in this Register are presumed to be true by courts although the presumption is
rebuttable.

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COPYRIGHT INFRINGEMENT

Copyright in a work is deemed to be infringed when any person

1. Does anything which the copyright owner has the exclusive right to do
2. Permits any place to be used for the communication of a work to the public for profit if the
communication infringes the copyright in the work.
3. Makes for sale or hire, or sells or lets for hire, or by way of trade displays, distributes or offer
for sale or hire any infringing copies of a work.
4. Exhibits in public any infringing copies of work by way of trade
5. Imports into India any infringing copies of a work

A person is deemed to have infringed copyright only if he acts:

1. In contravention of a license granted by the copyright owner or the registrar of copyrights
2. Without a license granted by the copyright owner or the registrar of copyrights
It is a criminal offence to knowingly infringe a copyright. Also, civil proceedings can be
initiated against an infringer. Infringing copies of works and parties used to produce them are
deemed to belong to the copyright owner.

PENALITIES AND REMEDIES

If the copyright in any work is infringed, three types of action can be taken. Civil proceedings van
be initiated against a person who infringes copyright. The owner of the copyright or exclusive
license

can pray to the court for:

1. An injunction
2. Damages for conversion and otherwise.
3. An account of profits

Since knowingly infringing copyright is a criminal offence, infringes can be punished with:
1. Imprisonment
2. Fines
3. The seizure of infringing copies of the work.

In addition to this an administrative remedy in the form of an Anton pillar order can be obtained.
These orders direct opponents to allow applicants to search their premises for evidence (of
infringement) and seize such evidence. They are granted if there is a very strong prima facie case
against the opponent. The suspected infringer is not warned in advance that a search will take
place. This ensures that he does not have the opportunity to conceal or destroy evidence.

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 2. PATENTING
INTELLECTUAL PROPERTY RIGHTS

Intellectual property rights are statutory rights once granted allows the creator(s) or owners
of the intellectual property to exclude others from exploiting the same commercially for a given
period of time. It allows the creators / owners to have the benefits from their work when these
are exploited commercially. IPR are granted to an inventor or creator designer in lieu of the
discloser of his / her knowledge. One among the laws governing IPR is the patent Act 1970

A patient is a contract between the inventor or applicant for the patent and the state, whereby
the inventor or applicant gets a monopoly from the state for a certain period in return for
disclosing full details of the invention. The patient system thus ensures that information on new
inventions made available for eventual public use so as to encourage technical and economic
development and discourage secrecy.
If an inventor or company has an invention, which they consider to be novel and inventive, they
may apply for a patent. This may be granted only after a detailed examination by a patent office.
Once the patent is granted the inventor or applicant has the sole right to make, user or sell the
invention for a limited period. This period is usually twenty years.
There can also be confusion about what exactly can be protected by the patent system. Patents
can only be applied to inventions. These usually have an industrial dimension. An invention is
normally a new product, which involves a new principle of operation or an improvement to an
old principle. Alternatively it may refer to a new or improved industrial process. Things which do
not involve manufacture are not usually considered to be inventions. For example, a new
scientific theory or a new surgical procedure would not be considered to be patentable for this
reason.

Term of patent:
The term of patent is for twenty years (20), provided the maintenance fee is paid at the end of
every year.

Territorial Scope:
Patent laws are territorial: a separate patent must be obtained in each country. Indian patent
office protects invention only filed in India.

What is patentable?
Only inventions are patentable. An invention must be new, useful and must involve inventive
steps compared to closest prior art. A new and unobvious product, process, apparatus or
composition of matter will generally be patentable.

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Why one should go for a patent?
 To enjoy the exclusive rights over the invention.
 If the inventor does not get the patent rights over his invention and introduce his product /
process based on his invention in the market, anybody can copy his invention and exploits it
commercially.
 To debar from using, selling or working out his invention, the inventor must go foe getting a
patent.
Term of patent:
The term of patent is for twenty years, provided the maintenance fee is paid at the end of every
year.

Territorial scope:
Patent laws are territorial; a separate patent must be obtained in each country. Indian patent
office protects invention only filed in India.

What is patentable?
Only inventions are patentable. An invention must be new, useful and must involve inventive
steps compared to closest prior art. A new and unobvious product, process, apparatus or
composition of matter will generally be patentable.

Who can apply for a patent?

An application for obtaining a patent can be made by a true and first inventor who holds the
rightful ownership in the invention due to fact that he invented the same or by any person who
is an assignee / legal representative of the first and true inventor. Also a legal heir of the first and
type inventor can apply for patent in case of the death of the true and first inventor.

What is patent specification?

A patent specification discloses the details of the invention for which the patent protection is
sought. The legal rights in a patent are based on the disclosures made in the specification.
Specifications are of two kinds

1. Provisional: A provisional specification discloses incomplete invention or inventions.

Requiring time to develop further. The provisional specification is filed to claim the priority
date of an invention.
2. Complete: The document, containing the detailed description of invention along with the
drawings and claims is called as the complete specification, Also the description regarding
prior art is included in the complete specification.
How does a patent get expire?
A patent can expire in the following ways:
1. The patent has lived its full terminate the term specified by the patent act of the country.
Generally it is 20 years from the date of filing.
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 2. The patentee has failed to pay the renewal fee. A patent once granted by the Government
has to be maintained by paying annual renewal fee.
3. The validity of the patent has been successfully challenged by an opponent by filing an
opposition either with the patent office or with the courts.

3. EASEMENTS

An easement is the right of someone other than a fee owner to use a particular parcel of land
for a particular purpose – most often it is the right to cross the property.

An appurtenant easement (aka appurtenance) is a right to use adjoining property that transfers
with the land. The parcel of land that benefits from the easement is the dominant heritage,
whereas the servient heritage is the parcel of land that provides the easement. The appurtenant
easement always transfers with the land unless the owner of the dominant tenement releases it.
An easement in gross in an individual interest to use the land – it benefits a person or an
organization in contrast to an appurtenant easement, which benefits the land. Often business
such as railways and phone companies hold commercial easements in gross so that they conduct
business. Utility easements, which allow utilities to run electric wires or pipelines across
properties, are also easement in gross.

Commercial easements in gross van be assigned or conveyed. Generally a personal easement in

gross is used to allow a neighbor to cross someone else’s land, but unlike an appurtenant
easement does not transfer with the property and ends when the owner of the easement dies.

Illustrations
 Right of way through neighbor’s land.
 Right to enjoy light and air from adjoining land.
 Right to get water from neighbor’s land
 Right to grace cattle.

CREATION OR ACQUISITION OFEASEMENT

1. Grant – written document containing the required formalities signed by the grantor of the
easement conveying the easement and describing its use and location. This is often contained
in a deed, but not always.
2. Express reservation – similar to easement by grant express reservation creates on easement,
but in creation of the easement the grantor reserves the right to the easement that is being
given; it can’t be exclusively be used by the person receiving the benefit of the easement.
3. Prescription – prescription is similar to acquiring property through adverse procession. The
easement must be used openly, continuously and notoriously for twenty years in order for a
legal easement to be granted.
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4. Implied grant / necessity – This is a legal right given to the owner of land – locked property
to access their land through an adjoining property from a public way. Proper compensation
must be given for the easement.
5. Custom – When people enjoying certain rights to make use of a piece of land for a social
activity year after as a custom it is said to be easement by custom
6. Necessity –

CLASSIFICATION OF EASEMENTS
 According to the manner they are exercised
a. Continuous easements
b. Discontinuous easements

According to whether or not their existence is indicated

a. Apparent easement
b. Non- apparent easement

 According to the purpose of the easement or the nature of the limitation.

a. Positive easement
c. Negative easement

 Easement for limited time or on condition

 Easements restrictive of certain rights.
a. Exclusive right to enjoy
b. Rights to advantages arising from situation.

 Customary easement
 Easements of necessity and quasi easements.

1. CONTIONUOUS EASEMENTS
Continuous easements are effected without any intervention of the act of a man. For example
continuous flow or water in drainage, the right to receive continuous sunlight etc, are all
continuous easement.

2. DISCONTINUOUS EASEMENT
Discontinuous easement is effected only by the intervention of the act of a man. For example
right to walk over the servient land is discontinuous easement.

3. APPARENT EASEMENT
Apparent easement is visible to the eye. It is evidenced by to existence. For example – the
right to take water from the servient land.

4. NON APPARENT EASEMENT

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 Discontinuous easement is effected only by the intervention of the act of a man. For example
right to walk over the servient land is discontinuous easement.

5. POSITIVE EASEMENT
Positive easement enables the dominant owner to commit some positive act upon the
servient property. For example right of walk in, right of placing advertising board etc.

6. NEGATIVE EASEMENT
Negative easement enables the dominant owner to prevent the servient owner from doing
certain acts. For example preventing the servient owner from constructing a building to stop
the supply of air. So it imposes a duty upon the servient owner.

7. EASEMENT FOR LIMITED TIME OR ON CONDITION

An easement may be permanent, or for a term of years or other or other limited period, or
subject to periodical interruption, or exercisable only at a certain place, or at certain times,
or between certain hours, or for a particular purpose, or on condition that it shall commence
or become void or voidable on the happening of a specified event or the performance or non
performance of a specified Act.

8. EASEMENTS RESTRICTIVE OF CERTAIN RIGHTS

Easements are restrictions of one or other of the following rights (namely):-
a. Exclusive right to enjoy – The exclusive right of every owner of immovable
property to enjoy and dispose of the same and all products thereof and accessions
thereto.
Example – The exclusive right to every owner of land in a town to build on such
land, subject to any municipal law for the time being in force, The right of every
owner of land that the air passing thereto shall not be unreasonable polluted by
the other persons
b. Rights to advantages arising from situation – The right of every owner of
immovable property to enjoy without disturbance by another the natural
advantages arising from its situation.
Example – The right of every owner of land that, within his own limits, the water
which naturally passes or percolates by, over or through his land shall not, before
so passing or percolating, be unreasonably polluted by other persons, the right of
every owner of upper land that water naturally rising in, or falling on such land,
and not passing in defined channels, shall be allowed by the owner of adjacent
lower land to run naturally thereto.
9. CUSTOMARY EASEMENT
An easement may be acquired in virtue of a local custom. Such easements are called
customary easements.
Example – By the custom of a certain village every cultivator of village land is entitled, as
such to graze his cattle on the common pasture. A having become the tenant of a plot of

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 uncultivated land in the village breaks up and cultivates that plot. He thereby acquires an
easement to graze his cattle in accordance with the custom.

10. EASEMENTS OF NECESSITY AND QUASI EASEMENTS

An easement of necessity is an easement created to meet the need for the necessity of a
particular case.
Quasi easements are covenants which the servient owner must grant for the benefit of
the dominant owner. They resemble easements in many ways but lack one of the
essentials of valid easements. They are termed as quasi easements.

Example-
 A, the owner of two field, sells one to B, and retains the other. The field retained was,
at the date of the sale, used for agricultural purposes only, and is inaccessible except by
passing over the field sold to B. A is entitled to a right to way, for agricultural purposes
only, over B?s field retained.
 A sells b a house with windows overlooking A?s land. The light passing over A?s land
to the windows is necessary for enjoying the house as it was enjoyed when the sale took
effect. Afterwards a sells the land to C. Here C cannot obstruct the light by building on the
land, for he takes it subject to the burdens to which it was subject in A?s hands.

EXTINCTION OR TERMINATION OF EASEMENTS

1. Extinction by dissolution of right of servient owner
When, from a cause which preceded the imposition of an easement, the person by
whom it was imposed ceases to have any right in the servient heritage, the easement
is extinguished.
2. Extinction by release
An easement is extinguished when the dominant owner releases it, expressly or
impliedly, to the servient owner. Such release can be made only in the circumstances
and to the extent in and to which the dominant owner van alienate the dominant the
heritage. An easement may be released as to part only of the servient heritage.

3. Extinction by revocation
An easement is extinguished when the servient owner, in exercise of power reserved
in this behalf, revokes the easement.
4. Extinction on expiration of limited period or happening of dissolving condition
An easement is extinguished where it has been imposed for a limited period, or
acquired on condition that it shall become void on the performance or non-
performance of a specified act, and the period expires or the condition is fulfilled.

5. Extinction on termination of necessity

an easement of necessity is extinguished when the necessity comes to an end.

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6. Extinction of useless easement
An easement is extinguished when it becomes incapable of being at any time and
under any circumstances beneficial to the dominant owner.

7. Extinction by permanent change in dominant heritage

Whereby, any permanent change in the dominant heritage, the burden on the
servient heritage is materially increased and cannot be reduced by the servient owner
without interfering with the lawful enjoyment of the easement, the easement is
extinguished unless
a. it was intended for the beneficial enjoyment of the dominant heritage, to
whatever extent the easement should be used ; or
b. the injury caused to the servient owner by the change is so slight that no
reasonable person would complain of it; or
c. the easement is an easement of necessity.

8. Extinction on permanent alteration of servient heritage by superior force

An easement is extinguished where the servient heritage is by superior force so
permanently altered that dominant owner can no longer enjoy such easement:
PROVIDED that, where a way of necessity is destroyed by superior force, the dominant
owner has a right to another way over the servient heritage.

9. Extinction by destruction of either heritage

An easement is extinguished when either the dominant or the servient heritage is
completely destroyed.

10. Extinction by unity of ownership

An easement is extinguished when the same person becomes entitled to the absolute
ownership of the whole of the dominant and servient heritages.

11. Extinction by non- enjoyment

 A continuous easement is extinguished when it totally ceases to be enjoyed as such
for an unbroken period of twenty years.
 Discontinuous easement is extinguished when, for a like period, it has not been
enjoyed as such.

Such period shall be reckoned, in the case of a continuous easement, from the day
on which its enjoyment was obstructed by the servient owner, or rendered
impossible by the dominant owner, and in the case of a continuous easement, from
the day on which it was last enjoyed by any person as dominant owner.

12. Extinction of accessory rights

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 When an easement is extinguished, the rights (if any) accessory thereto are also
extinguished.

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Questions

Two Marks

1. Give the importance of building legislations in India.

2. Explain the importance of F.S.I and plot coverage provided in the development control rules
for Chennai metropolitan area 1990.
3. Differentiate between planning and building permit?
4. What is “CRZ”? explain its importance?
5. What are “easement” rights? what are its advantages? Explain with an example?
6. What is “F.A.R” explain its importance?
7. What is the definition of a multi-storied building as per the development control rules of
CMDA?
8. Enlist the few aspects of a building which are covered in Chennai corporation building rules?
9. Explain the importance of “FSI” and parking rules?
10. What are the aspects that are covered in building rules?
11. What is easement?

Eight & Sixteen Marks

12. Explain the importance of development control rules in the Indian context.
13. What are the salient features of the Tamilnadu municipalities rules-1972?
14. Outline the salient features of environmental Act -1986. Describe development regulation
pertaining to differential categorical of CRZ.
15. What are the salient features of the Panchayat building rules-1942?
16. Describe the history and development of CRZ. Do you think these provisions with regards to
enforcement are practical? give reasons if there is any modification to enforce.
17. Do you think the development control rules are for the benefit of the society? Explain the
importance of setback spaces and plot coverage with suitable illustrations.
18. A property adjoining 18m wide road and measuring 25m in Chennai is identified by a
Tamilnadu Housing Board, constructing apartments in Chennai. What are the development
control rules that would govern the design given by you? What is the maximum buildability that

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can be supported by the site? Support your answer with suitable sketches. Explain in detail the
process of manufacture of cement with a flow chart.
19. What is the relevance of development control rules? Do they restrict an architect’s
creativity?

……

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