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.

Would Germany and France find the red bus photo infringed?

You will be relieved to know that this is my last post, for the time being, on the red bus case...

France and Germany - moving towards both politcal and copyright law unity
[I've run out of red bus photos]

Again the inspiration for this post comes from the 1709 blog organised red bus seminar last week. Brigitte Lindner provided a fascinating comparison of the way the German and French courts would have approached the red bus problem. A very general summary of her talk is below.

Subsistence
France follows a fairly similar approach to the UK. A photograph attracts copyright protection if it is original and carries the “imprint of the personality” of its author. What this means in practice largely accords with the principles applied in Temple Island i.e. the court will look at a combination of the exposure, lighting, composition etc to determine whether a work is original.

By contrast Germany has a two-tier approach to photographic protection. A mere “photograph” i.e. any old photo with no creativity or artistic quality is treated as a “relative right” and protected for 50 years from the date of publication. The title of “photographic work” is awarded to “personal intellectual creations” which are similar to the French original photographs (angle, focus, colour etc are all important in this assessment).

Whilst Brigitte considered that the Claimant’s red bus photo would be protected as a photographic work in both France and Germany, she noted that it would definitely have been protected in Germany as a photograph at the very least. [Or would it, if the heavily manipulated image was arguably a collage?].

Infringement
France has only one very broad test for infringement which includes making adaptations and is general enough to encompass not just unchanged copying but cases where “characteristic and original elements” have been taken.

Germany has two types of infringement (1) reproduction – which covers unchanged copying and (2) adaptation – which covers alterations of an existing work.

A defence of “free use”?
Although Brigitte considered that the defendant’s images would have infringed in both France and Germany, she considered the potential for the Germany “free use” defence to apply.

Not to be confused with “fair use” (US) or “fair dealing” (UK), free use is essentially a freedom of expression defence. In order to qualify for the defence the new work must be so separate from the original that the first work “fades” in comparison. [This surely incorporates a judicial assessment of aesthetic quality]. Birgitte considered that the defendant would have needed to move further away in order to qualify for this sort of protection and could not rely on the defence in Germany.

Does anyone have experience of French or German law and can offer an insight into how this approach to photographic subsistence and infringement applies in practice? I noted a recent case in France (reported by TechDirt and the BJP) where the Le Corbusier Foundation appears to have successfully sued Getty for stocking some photographs of Le Corbusier chairs without its permission. Any information on that case would be of particular interest.

Is a cropped photo always a "substantial part" of the original image?

Publish Post: A red bus yesterday

The Red Bus case spawned a dedicated 1709 blog seminar at Olswang last Tuesday. The panel of speakers consisted of Michael Edenborough QC who represented the successful claimants, Brigitte Lindner, an expert in civil law and Sam Ricketson, an Australian academic.

One of Michael Edenborough’s more interesting arguments was that a cropped photo is, by its very nature, a substantial part of the original photograph.  Whilst there is a logic behind such a presumption it is unnecessary and potentially misleading to incorporate it into the test for what is a “substantial part”.

Is the photo on the right a substantial part of the one on the left?
[Almost certainly].

But does it follow that the photo on the right uses a substantial part of the photo on the left?
[?]

This proposition was taken a step further by Edenborough who suggested that the cropped photo (i.e. a substantial part of photo 2) would [inevitably] infringe photo 1 (on the left, above).  I'm not convinced that such a solution is helpful or even sensible and incorporates a measure of distance from the original copyright work which is not envisaged anywhere in the legislation or case law.  In my opinion (and based on my understanding of Designers Guild) a substantial part of photo 1 could very easily be an insubstantial part of photo 2.

It would be interesting to better understand the reasons and motivations for cropping photographs in the first place.  If the photographer readers out there (Tom Ang, I'm particularly talking about you) could provide some insight, it would be much appreciated.

Originality or author's own intellectual creation? What is the legal test for copyright subsistence in photographs?

Is this the red bus that sparked
a thousand copyright debates?

One of the many insightful comments in response to the Art & Artifice debate surrounding the "Red Bus" decision came from Francis Davey.

He wrote in response to my musings regarding the current test for copyright subsistence in photographs:

Does Painer apply? Painer was considering the "own intellectual creation" standard for European Law, but common law protection is, arguably, lower (I'd say - almost indisputably).

Surely recital 16/article 6 of 2006/116/EC preserved the common law level of protection for "uncreative" photographs? The 1988 was not, and could not, be amended to raise that level of protection by a regulations made under the 1972 Act, so the law must, presumably, be the common law. Unless some new, countervailing, principle exists that has never been properly articulated.

My understanding was that there are not two systems that run in parallel for assessing whether a photograph has artistic copyright and that following Infopaq, which was confirmed in Painer, the correct test is now "author's own intellectual creation" rather than the common law approach of originality. However, lacking complete confidence in my convictions, I deferred to a higher authority, namely Dr Justine Pila of Oxford University. She, diplomatically, replied as follows:

I agree with you both.

1. Is the common law originality standard lower than the EU ("author's own intellectual creation") standard?

*If* the common law standard requires "skill and labour" only, and *if* the EU standard requires creativity (as per Floyd J and AG Mengozzi in Football Dataco) then *in principle* yes - and this certainly was the view of AG Mengozzi in that case ("copyright protection is conditional upon the database being characterised by a ‘creative’ aspect, and it is not sufficient that the creation of the database required labour and skill").

2. Does the Term Directive permit Member States to confer copyright protection on photographs which satisfy the common law originality standard but not the EU standard?

I think it does. Article 6 of the Term Directive requires that photographs satisfying the EU standard be protected as literary or artistic works within the meaning of Berne Art 2 - ie, by lit/artistic copyright - without the imposition of any other criteria. And it expressly permits [Member States] to "provide for the protection of other photographs", ie, photographs not satisfying the EU standard. So the only question is whether UK law still recognises the sufficiency of the common law originality standard with respect to photographs.

3. Does UK law recognise photographic copyright in the absence of "creativity"?

I think it does, consistent with Antiquesportfolio.com (2001 Ch).

4. Does it follow that UK copyright only subsists in photographs if they are creative, or that the UK and European tests of photographic copyright differ?

No, I don't think so, because I don't think that Painer requires creativity for photographic copyright. Rather, it requires (a) that the subject matter of a photograph leaves scope for “sufficient formative freedom”, and (b) that the photographer exploit that freedom so as to leave his “mark” on the resulting work (ie, the photograph). (And it held that in the case of a photographic portrait, there is sufficient formative freedom, and thus the possibility of copyright, as "the photographer can determine, among other things, the angle, the position and the facial expression of the person portrayed, the background, the sharpness, and the light/lighting.") In my view this is perfectly consistent with the UK approach as adopted in Antiquesportfolio.com, where the court held that UK copyright will always subsist in a photograph of a single, static non-spherical 3-d object (eg, antiques) on the basis of the judgement involved in positioning the object, determining the angle at which it is to be taken, and determining the lighting and focus.

So I agree with you, that the European and UK tests of photographic copyright are the same, and conform with that adopted in Painer. The critical question in any particular case is whether the subject matter leaves scope for “sufficient formative freedom” which the photographer exploits so as to leave his “mark” on the resulting work. This test seems better captured by the "author's own intellectual creation" formulation than the "skill and labour" one; though in fact UK courts have often expressed the common law originality standard in terms of "skill, labour and judgement", which is arguably not different from the European "author's own intellectual creation" test. And I personally doubt that the EU test requires creativity - it's almost identical to the Canadian test, which was formulated partly so as to underline that creativity is *not* required. (That at least is my memory.)

Do you agree? Where is the line in your jurisdiction? Where do you think the line for copyright subsistence should lie? Please join in the debate using the comments section below.

Note: no weblinks were included in the correspondence.  They have been included in this blog for readers' ease of reference.