The dirty side of artistic copyright: septic tank technical drawings are artistic works says the UK privy council

It's all hands to the pump if the septic tank stops working...

Judges are not art critics.  For that reason, the definition of an 'artistic' work has traditionally been given a fairly generous interpretation by the courts, the view being that it should not be for a judge to decide what is and is not 'art'.  That said, not everyone would suspect that even the drawings for something as prosaic as a septic tank could become a battleground for testing the limits of artistic copyright.

For various historical reasons the final court of appeal for the Bahamas (and much of the Caribbean) is still the UK's privy council. This means that various UK judges occasionally provide the final word on cases which involve different laws and parties located thousands of miles away. Gold Rock Corp Ltd v Hylton is such a case.

The first instance judge made a pretty unequivocal finding of copying but Hylton had successfully argued (at his first appeal) that he could not have infringed copyright as technical drawings of septic tanks were not artistic works within the meaning of the Bahamian Copyright Act.

The relevant sections of the act are set out below.

Section 2(1) defines "artistic works" as follows:

'artistic works' include two-dimensional and three-dimensional work of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, architectural plans and technical drawings.

Section 2(1) contains a further definition:

'useful article' means an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information and an article that is [not] normally a part of a useful article is considered a 'useful article'

Section 2(1) also says"the terms 'including' and 'such as' are illustrative and not limiting."

Finally section 2(3) states that:

The term 'artistic works' as defined in subsection (1) shall include works of artistic craftsmanship in so far as their form but not their mechanical or utilitarian aspects are concerned; and the design of a useful article, as defined in this section, shall be considered an artistic work only if, and only to the extent that, such design incorporates artistic features that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article.

A lot of time appears to have been spent debating whether or not technical drawings for a septic tank were a 'useful article' within the meaning of section 2(3).

The privy council noted that a technical drawing is not a useful article in itself (although septic tanks are undeniably useful items!) and thus would not fall within section 2(3).  Their view was that:

1. section 2(3) concerned three dimensional objects like works of artistic craftsmanship and non-utilitarian design; and 
2. the section actually widened the definition of artistic works by including things like works of artistic craftsmanship which were not explicitly set out in the definition of artistic works at section 2(1). 

As septic tank drawings fit squarely within the definition of 'technical drawings', and no other exceptions applied, they were protected by Bahamian copyright law.  The finding of infringement then easily followed (amongst other things the Hylton copy had reproduced spelling mistakes in the original drawings).

Whilst the decision may not have a direct bearing on other jurisdictions, the board did take into account various US authorities for the proposition that even if a septic tanks' technical plans do not offer the author protection to stop reproduction of the septic tank itself, they do offer protection against copying of the plans themselves.  The rationale for looking at US case law was that both US and Bahamian law are derived from the Berne Convention and implement it in a similar way.

It is also worth bearing in mind that there is considerable overlap between the members of the privy council and the UK's Supreme Court and Court of Appeal.  So whilst the Bahamian Copyright Act is different to the UK's Copyright Designs and Patents Act it offers an insight into the court's possible interpretation of technical drawings in the the future.