Goodbye Section 52? Proposed copyright extension for industrially produced designs

The iconic Eames chair
will it soon be protected by copyright?

What is art? What is design? Are the two different? Where is the overlap?

These are important and difficult questions which have plagued lawyers, judges and legislators in many jurisdictions not least the United Kingdom. There is currently a Bill passing through the UK parliament which will shake up the current UK approach to copyright for some designs and brings the UK system more in line with the approach taken in the rest of Europe.

Currently section 52 of the Copyright Designs and Patents Act 1988 (CDPA) limits the effective term* of copyright protection to ‘the end of the period of 25 years from the end of the calendar year in which such articles are first marketed’. This limited 25 year copyright term applies where an artistic work has been exploited (by the copyright owner) by making the artistic work by an ‘industrial process’ and marketing the artistic work in the UK or elsewhere.

A number of the gaping holes in section 52 were filled by the snappily titled Copyright (Industrial Process and Excluded Articles)(No. 2) Order 1989. This clarified that an ‘industrial process’ means either (1) the artistic work is manufactured more than 50 times or (2) it consists of ‘goods manufactured in lengths or pieces, not being hand-made goods’. So most furniture, lamps, storm trooper helmets etc are out unless...

...even if made by an industrial process, some items can slip through the section 52 net and get the full copyright term of protection. These special items are: works of sculpture, wall plaques, medals and medallions or printed matter primarily of a literary or artistic character. Unsurprisingly most of the legal battles have been over whether a particular design is a ‘sculpture’. But such battles may no longer be necessary.

[* Technically, the copyright term is not limited but the ability to take action against infringers is removed which is effectively the same thing subject to limited circumstances which are discussed in more detail here.]

The plan is simple: revoke section 52 (see clause 55 of the proposed bill).

How will this work in practice?

In particular what will happen to works which were out of copyright protection is not clear from the bill. There are likely to be some transitional provisions and these works will ultimately be protected by the copyright regime.

Who benefits?

To qualify for the extended term of protection, a work must be artistic in the first place. There is a lot of talk about how British designers will benefit but this will not apply across the board. Some designs may not qualify as not all designs are necessarily artistic. The definition of art in the CDPA is fairly broad but nevertheless restricted to more traditional notions of art. The area most of these items are likely to fall within is a "work of artistic craftsmanship" which unlike paintings etc is not explicitly a work “irrespective of artistic quality”.

Some designs have become iconic over time but were not necessarily always recognised as artistic. The definition of what is artistic has always involved a great deal of subjectivity and unfortunately judicial rulings on what is art may be unavoidable. There are problems and not everyone will benefit. Nevertheless, if the bill is passed it will be another item in the designer’s IP arsenal. Whilst it may not be the huge boost to British business that it is hyped up to be, it will put the UK on a more equal footing with the rest of Europe.

The people who lose out are those that manufacture ‘replicas’. They can choose to move sufficiently far away from the original to not be copying a ‘substantial part’ (a risky strategy) or take advantage of the transitional provisions to sell off existing stock and move business operations to Estonia or Romania (the only other two EU countries to restrict the term of protection for designs).


Is it necessary?


Do we really need more copyright protection? This is a complicated question but there has been a significant disparity in the protection afforded to designers and musicians, writers etc and no real justification for such a major difference in approach. The change may be good for British industry and it will definitely keep some British lawyers busy. Quite apart from subsistence and infringement issues, there are going to be questions over ownership; if the bill is passed those designers who were commissioned (rather than employed) will suddenly own the resurrected copyright in design – not the company which is exploiting the rights and may have to negotiate an expensive licence.

You can track the passage of the bill here.

Taking Art law to the MAXXI

Sometimes the legal issues got a little bit blurry

Last Thursday and Friday there was a fantastic international art law conference organised by Massimo Sterpi on behalf of the International Bar Association at the MAXXI art gallery in Rome. There was a huge range of speakers from artists to curators, academics to lawyers.

The speakers gave a fascinating insight into the world of galleries and museums, private collections and provoked considerable debate on some of the issues facing the art world today. The sorts of issues covered included

(1) how you reach a legal definition of art – a particular issue when trying to justify a hefty price tag for what might, to the untrained eye, look like a pile of bricks or a bit of twisted neon light,

(2) how new forms of art such as holograms can fall within old legal definitions,

(3) ownership of digital art, particularly when it includes user generated content or consist of collections of other works gathered from across the internet – pinterest was a particular discussion point,

(4) broader questions of ownership of art, particularly large scale public or performance art primarily in the context of the Burning Man project,

(5) appropriationism including the case law (hello Jeff Koons, Cariou v Prince et al),

(6) the different treatment of art in different legal systems, particularly the relatively open approach of copyright compared to the prescriptive and literal approach of tax laws,

(7) the dangers that museums and galleries face from last minute lawsuits to demonstrations and public being put in danger (fire, falling masonry, falling over in darkness… the list of potential danger is seemingly endless),

(8) controversies surrounding certain types of art, particularly bio art (from glowing green bunnies to pickled human bodies).

The wonderful Zaha Hadid creation that is the MAXXI

Unsurprisingly, given the number of lawyers in the room, there was a lot of talk about copyright and the inherent problems in applying an old system to a new world where digital reproduction is quick and common and appropriationism has become an accepted and almost mainstream art form. 

Suggested solutions included a form of compulsory licensing for copyright works (similar to the approach taken in patent law), a taxation approach (i.e. you have to pay money if your use of a work makes you any money – probably not the favoured approach of the content industries), and a shorter term of copyright protection.

 I will be blogging in more detail on the issues raised in due course but if any of the above are of particular interest please let me know in the comments section below and I will try to cover them first...

When the chips are down (or lost) the courts can still award compensation

In a recent German case, first reported on the IPKat here, an artist was awarded €2,000 for the loss of some 22 year old chips (known elsewhere in the world as "fries" (French or freedom). The chips were used as the basis for "pommes d'or" (a golden cross made from two chips).

An alternative to the golden arches?
Photo: Stefan Bohnenberger

The golden chips were the work of artist Stefan Bohnenberger. Mr Bohnenberger argued that both his Golden chips and the more biodegradable template were works of art and that he was entitled to compensation from the gallery for the loss.

The Higher Regional Court of Munich (OLG München, case reference: 23 U 2198/11) agreed with the artist but refused to rule on the question of whether or not the fries were art (presumably if they were, they would be a sculpture). Instead the court awarded €2,000 on the basis of the chips' economic value. Key evidence appears to have been given by an art collector who said she had offered to pay €2,500 for them. However, as the artist had only asked for €2,000 in compensation, that was the amount the court awarded together with an order that the art gallery pay 90% of the artist's costs.

The award was made on the basis of the gallery's breach of its contract to store the chips securely. It is worth noting that this was an appeal from a lower court ruling which held in favour of the gallery on the basis that it could not see any loss to the artist.

Can a mouldy bit of potato be art? Where should the line be between what the public/artistic community considers to be art and what the courts treat as art? It is worth returning briefly to Lucasfilm v Ainsworth which did not made any hard and fast definitions of sculpture but endorsed the view of Richard Meade QC (in a different case - Metix v Maugham that “a sculpture is a three-dimensional work made by an artist's hand” [35].

Speaking of censorship....

It appears that the debate over the access to so-called "offensive art" is not limited to Australia (reported here and here).

ABS-CBN reports that various Catholic groups in the Philippines have threatened to take legal action against the Cultural Center of the Philippines (CCP) if certain artworks remain on display.

The works in question are part of a exhibit titled "Kulo" from artists at the University of Santo Tomas, which includes images of Jesus Christ and the Virgin Mary which have been "enhanced" or as ABS-CBN explains "adorned with objects not related to Christianity - from a crucifix with a wooden penis to a Christ the King figurine with rabbit ears."

The story is that:

Atty. Jo Imbong, executive director of the St. Thomas More Society Inc., [has] said they may file charges against the CCP for violating Article 201 of the Revised Penal Code, which penalizes the exhibition of offensive material.

"There is a provision in the Penal Code which penalizes the exhibition of works which offend religion. That might be one possibility. Or a civil suit which requires the closure of the exhibit," Imbong said.

"What we have done so far is give notice to the CCP through president Dr. Raul Sunico and gave him 48 hours to close the exhibit. I spoke to him and he promised to promptly act on our letter." ...

"Apparently, the use of Christ's image, Christ's face, the rosary, the crucifix and interspersing it with the male organ, broken crucifixes piercing the eyes and forehead of Christ...the message that's delivered here is one of mockery and andalism that hurts the sensibilities of the Christian community," Imbong said.

Imbong said those who have visited the exhibit, which is open to the public, have called "Kulo" an "insult to their faith."

She added that even some of CCP's staff "were revolted by it."

"The role of the CCP is to promote excellent Filipino aesthetics and positive Filipino cultural values and national identity. My question is, is it our identity to mock and vandalize religious icons? Is that the Filipino pride that the CCP is supposed to foster? Are we going to be proud of what destroys revered symbols? That's not Filipino at all and that is contrary to the mandate of CCP," she said.

CCP chairperson Emily Abrera, however, stands by the legitimacy of the exhibit, saying that it promotes intelligent debate.

"We see nothing wrong with the works, exhibit," she said.

"I don't know if they've viewed the entire exhibit. Mr. Medeo Cruz's installation is one of the 32 artists and I think we should take it as part of the exhibit. This is part of the dialogue of the discourse, part of social community. Not all art is for aesthetic purposes...and that is the context from which the exhibit must be taken.

"It is part of our culture to question, it is part of our culture to seek answers, to look behind the surface and dig out what our real values are. This is a time for questioning for many."

While art is, after all, a form of expression, Imbong maintained that such expression has its limits and that artists have a social responsibility.

"Unlike any other form of speech, (art) has its limits. It is not absolute. The law admonishes respect of the belief of others," she said.

What struck me most about this story is that the Philippines has a law on Immoral Exhibitions - and with a quick search, it appears that Article 201 of the revised penal code on immoral doctrines imposes penalties upon the following:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
2. The authors of obscene literature, published with their knowledge in any form; the editors publishing such literature, and the owners/operators of the establishment selling the same;
3. Those who, in the theatres, fairs, cinemas or any other place, exhibit indecent or immoral plays, scenes, acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows, whether live or in film, which are prescribed by virtue hereof shall include those which (i) glorify criminals or condone crimes; (ii) serve no other purpose but to satisfy the market for violence, lust or pornography; (iii) offend any race religion; (iv) tend to abet traffic in and use of prohibited drugs; and (v) are contrary to law, public order, morals, good customs, established policies, lawful orders, decrees and edicts; and
4. Those who shall sell, give away or exhibit films, prints, engravings, sculptures or literature which are offensive to morals.

So, I would guess that its opponents would claim that this exhibition falls under part 4. But, just how do you measure what is "offensive to morals"? It seems like a wholely subjective law. Can it really be said that this form of censorship is socially responsible.

Source: ABS-CBN.com, 3 August 2011

Censorship in Australia - Update

Further to my post here, I have had some very interesting responses. The first provided me with the chance to meet up with one of the Aussie experts on classification, who had testified at the Parliamentary Committee hearing and provided a submission to the Australian Law Reform Commission (ALRC), and who happened to be over in London last week visiting from the University of Canberra. We had a great lunch and I was able to learn a whole lot more about the classification debate currently taking place in Australia than is available on Google (which is probably another first).

Now, another expert, Robyn Ayres, the Executive Director of the Arts Law Centre of Australia (Arts Law), has sent me some more information to share. Robyn notes:

The Arts Law, the national community legal centre for the arts, made a submission and gave evidence to the Senate Inquiry into the National Classification Scheme (NCS). As reported by Simone, the Senate Committee handed down its report on 30 June 2011 and the final report can be accessed here. It is noted that the Senate Inquiry was chaired by former liberal senator, Guy Barnett, a religious conservative, and the grab bag of issues canvassed were of particular concern to those holding similar political and social views as the Chair. See Arts Law’s summary of the Senate Report here.

Whilst the Senate Inquiry was underway, the Australian Attorney General, Robert McClelland, asked the ALRC to inquire more broadly into the NCS especially in view of the many technological developments, particularly convergence issues, and adult-themed computer games, which have emerged since 1995 when the NCS was established. No doubt the recent controversies in Australia concerning the appearance of naked or semi-naked children in art (notably the Bill Henson photography exhibition in 2008) also formed part of the background to the ALRC reference. The ALRC issues paper took a more comprehensive and systematic approach to how the classification and censorship systems should work in Australia.

Submissions to the ALRC inquiry closed on 15 July 2011. Arts Law’s submission, which was widely supported by the Australian arts community, suggested that the Australian Government needs to take a more realistic approach to classification and censorship in the digital age, that it was unnecessary to classify the visual arts and the current NCS which theoretically applies to moving image art (as film), should also be exempted from the classification system. Arts Law also emphasized the importance of retaining ‘artistic merit’ as a factor to be considered classifying work, particularly for the R18+ rating, in view of the right to freedom of expression and the underlying principle that adults should be free to read see and hear what they choose. This principle should only be subject to prohibiting access to illegal content eg child pornography. The ALRC is due to report 30 January 2012.

So it seems that unfortunately this issue is not going to be resolved any time soon. But I will certainly be watching the debate as it develops from now. Thanks to all for their help.

Image: The Birth of Venus by Alexandre Cabanel 1863 (from artslaw.com.au)

Limited access art

One of my favourite London magazines, The Stylist [not only free, but full of great content – bit like this blog] recently ran a short piece of news from my homeland. It reported that the Australian government [not known to be the most liberal of governments] had issued a report urging that works of art, as visual works, be given an age-restriction classification in the same way as films. Intrigued I did some digging and, voila, stumbled across the Australian Senate Legal and Constitutional Affairs References Committee's “Review of the National Classification Scheme: achieving the right balance”. Unfortunately, not only is the title a mouthful, but the report itself is huge. So in my quest to achieve the right balance between too much information and not enough [and between work and life], here is a summary of the main points I picked up.

- The Senate referred the Australian film and literature classification scheme to the committee for inquiry and report, with particular reference to inter alia the application of the National Classification Scheme to works of art and the role of artistic merit in classification decisions.

- In the committee's view, the National Classification Scheme is flawed in a number of key areas including: (i) Aside from the complexity of its legislative framework, the scheme does not protect children from material that is likely to harm them; nor does it protect others more broadly from exposure to unsolicited material that they may find offensive, and (ii) 'Artistic merit' remains a defence to child pornography and child abuse material offences in many states, meaning that sexualised images of naked children can be exhibited in public galleries under the guise of 'art'. [This refers to the case of photographer Bill Henson whose artworks were seized by police from an exhibition in Sydney in 2008 due to the fact that they depicted naked children (of 12 and 13).]

- Accordingly, the committee believes that significant changes should be made to the National Classification Scheme.

- As a starting point, the committee identified several key principles should underlie a classification scheme in Australia.

- One of these principles is the application of the National Classification Scheme to artworks. In this respect, the committee noted that the application of the National Classification Scheme to artworks for public exhibition or display is limited. In the committee's view, obtaining classification will assist in ensuring that audiences can be provided with appropriate advice (and, where necessary, warnings) regarding the nature of the artwork. However, since the cost of application fees for classification could present difficulties to artists, the classification of artworks should be exempt from those fees.

- The committee also strongly opposes the inclusion of the artistic merit defence for child pornography offences in state legislation [which was removed from the NSW laws following the Henson case]. Accordingly, the committee recommends that the Australian Government, through the Standing Committee of Attorneys-General, pursue with relevant states the removal of the artistic merit defence for child pornography offences.

It is not really clear where we go from here. That could however just be because my knowledge of Australian Constitutional Law is a distant memory. So, if anyone knows, please enlighten us.

If you would like to read the whole report, you can find it here.

Image from olinda.com