IPR to Magic Methods

Abstract

The IP protection of magic methods has been a topic of concern since long. Magicians copying each other’s tricks, revelation of tricks, etc. are a few of the many issues. But there are ways in which magicians can protect their tricks and methods. This study is undertaken with a view of enquiring as to which area of intellectual property, under the Indian law, is best suited for the protection of the magic methods.

Introduction

Magic is an act carried out by trickery or illusion, generally for the purpose of entertainment. It often leaves us surprised and curious about how it is performed,but once we are aware of how the trick is performed, we no longer are as amused as we were when we knew nothing about the it. Also, the method of trickery ceases to have its value when other magicians steal it. To prevent these kinds of risks is when intellectual property rights come into the picture.

Intellectual property (IP), as defined by WIPO, refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.[1] Intellectual Property is protected by patents, copyrights and trademarks, that enable people to earn recognition as well as financial benefits from their inventions.

Patent

As defined by WIPO, a patent is an exclusive right granted for an invention, which is a product or a process that provides a new way of doing something or offers a new technical solution to a problem.[2] It is also stated that to get a patent, it is necessary to disclose to the public, the technical information about the invention, in a patent application.

Under Section 3 and 4 of the Indian Patents Act[3], is given a list of what kind of inventions cannot be patented in India. To obtain a patent in India it is to be determined whether the invention is a subject for a patent per Section 3 and 4 or not.  Unless the invention falls under any category mentioned under these two sections, it is a subject for a patent. For an invention to be patentable, it has to be novel, involving inventive steps and must be capable of industrial application.

Magic tricks are not likely to qualify for patent in India, because it would be necessary for the patentee to disclose the method of trickery to the public in the patent application. Also, Section 53 states the term of patent to be that of 20 years from the date of filing of the application for the patent, which is most likely to defeat the purpose of protecting the method of trickery in the first place. Therefore, it can be said that patenting is not the suitable kind of Intellectual Property protection for magic methods.

Copyright

Copyright as defined by WIPO, is a legal term used to describe the rights that creators have over their literary and artistic works.[4] Works such as books, music, paintings, films, sculptures, databases, computer programs, technical drawings, etc. are covered under copyrights.

In India, copyrights are governed by The Copyright Act, 1957. Copyright is defined under the Copyright Act as an exclusive right to do or authorize the doing of certain acts in respect of a work or any substantial part thereof.[5]

Section 13 of the Act[6], states that under the provisions of the Act, copyright shall subsist throughout India in original literary, dramatic, musical and artistic works; cinematographic films; and sound recording.

Magic methods may be capable of copyright protection under the category of dramatic works. Dramatic work, as defined under the Act, includes any piece for recitation, choreographic work or entertainment in dumb show,the scenic arrangement or acting, form of which is fixed in writing or otherwise but does not include a cinematograph film.[7] Magic methods are likely to belong to this category, i.e. of dramatic work, in cases where the magic shows are scripted and put into writing, in advance, by the magicians.

Under the definition of performer, The Copyright Act includes a conjurer.[8] This ensures that a magician or a conjurer is entitled under this Act to “performer’s right”.

The performer who appears or engages in any performance is entitled to have a special right, known as “performer’s right” in relation to the performance; and it is also stated that this performer’s right shall subsist until 50 years from the beginning of the calendar year succeeding the year in which the performance is made.[9]

Such performer has exclusive rights with him/her to reproduce the work by any means, make a sound or visual recording, offer it for sale, etc. If the performer has, by means of a written agreement, consented to the incorporation of his performance in any cinematographic film, he shall be entitled to royalties in case of making of the performances for commercial use.[10]

Trade Secrets

WIPO defines Trade secrets as IP rights on confidential information which may be sold or licensed.[11] For this information to qualify as a trade secret, it must be commercially valuable; known to limited persons; and there must be reasonable steps taken by the rightful holder of this information to keep it a secret.

Under the Indian law, there is no specific statute governing the protection of trade secrets. Often, to protect the trade secrets, watertight agreements are entered into by the parties.

In case of magic methods, it is to be ensured that they pass on safely to fellow magicians or partner magicians.Thus, a magician can ask his/her fellow magicians or partners, with whom he/she wishes to share their magic method to sign a non-disclosure agreement. This way they can enforce the contract through the Courts, and the magic methods be best protected. 

Conclusion

Magic has been practiced in India since the ancient times. For many years it was pursued as a full-time profession by magicians. Due to the changing times, traditional magicians and their magic lost the capability of attracting people’s attention. People being aware of how the tricks are performed is one of the main causes for gradual decline in the trade. On the other hand, modern magicians make use of technology to perform their tricks. They study mind reading and develop new techniques to showcase their talents. Their hard work and efforts that are put in to develop the tricks, make it extensively important for the magicians to protect their methods. Entering into agreements, registering copyrights are few of the ways that can immensely help the magicians to protect their art and flourish.


[1]https://www.wipo.int/about-ip/en/ , accessed on July 13, 2020.

[2]https://www.wipo.int/patents/en/ , accessed on July 13, 2020.

[3]The Patents Act, 39 of 1970, Act of Parliament, 1970.

[4]https://www.wipo.int/copyright/en/ , accessed on 13 July 2020.

[5]The Copyright Act, 14 of 1957, § 14.

[6]The Copyrights Act, 14 of 1957, Act of Parliament, 1957.

[7]The Copyright Act, 14 of 1957, § 2(h).

[8] The Copyright Act, 14 of 1957, § 2(qq).

[9]The Copyright Act, 14 of 1957, § 38.

[10] The Copyright Act, 14 of 1957, § 38A.

[11]https://www.wipo.int/tradesecrets/en/, accessed on 13 July 2020.

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