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Tuesday, 14 August 2007

Copyright in works in public places

The IPKat has been doing some mewsing about a copyright issue that has interested him ever since the Covered Reichstag litigation in Germany. In that case the Bundesgerichtshof ruled that the celebrated wrapper Christo was entitled to enforce his copyright against a vendor of postcards of his Covered Reichstag (right): the defence to copyright infringement in respect of the making and copying of images of public buildings on permanent display did not extend to the not-so-permanent artwork in which the building was enshrouded.

It occurs to the IPKat that, while there is a large market for picture postcards and other memorabilia of buildings and works of art that are situated in public, there doesn't appear to be any move to establish an international standard for the protection of either the rights of copyright owners or of those who wish to make use of publicly accessible cultural icons. The Berne Convention, for example, only has general provisions such as

Article 9
(1) Authors of literary and artistic works ... shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
In the United Kingdom the Copyright, Designs and Patents Act 1988 however makes highly specific provision for unauthorised but legitimate copying of such works:

"Section 62.—(1) This section applies to—
(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2) The copyright in such a work is not infringed by—
(a) making a graphic work representing it,
(b) making a photograph or film of it, or
(c) broadcasting or including in a cable programme service a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright".

The IPKat wonders why this curious little area of law has not received more attention. He also wonders what provisions other countries may have adopted - especially the USA (where prospects of mega-damages have done so much to stretch copyright and its defences to their outer limits), France (where the rights of the creator have traditionally been so staunchly protected) and China (a jurisdiction that has carefully considered the experiences of many other countries before passing its own IP legislation).

Right: Christo's portrait of the IPKat - or is it Merpel?

If you can enrich the IPKat's knowledge on this score, please post a Comment below or email him here.

World's ugliest buildings here and here
Other ways to cover buildings here and here

2 comments:

dom said...

I recently occupied myself with this topic and found out that:

Most Berne members have enacted specific “public place exemptions” that allow for pictorial representations of works of architecture, like for instance Sec 62 CDPA, although Berne does not require specific exemptions beyond general fair use.

The Information Society Directive recognizes the existence of such rules but makes them optional, so that the legal systems in the European Union remains split in this area (see Art 5 (3) (h)).

The pertinent provisions often differ in respect to (a)means of reproduction (photos or also three dimensiolan key chains?)(b)the object (building or also sculptures, where should we draw the line in modern architecture?), (c) permanence of display (like here with Christo), (d) location of object and position of viewer, (e) commercial scale of use (f)other factors such as whether or not the building is the "chief motif" in the picture.

Recently a dispute arouse over a poster of the "Hunderwasser Haus", a famous landmark and tourist attraction in my hometown Vienna. The copyright owners could not sue in Austria since the public place exemption would have coverd even this - purely commercial - use. Since the poster was marketed in Germany as well a lawsuit was brought there and the German Supreme Court -applying the German "public place exemption" - found the copy infringing. This is because the German provision only allows the public to make pictorial representations of what is visible from the STREET (freedom of the streetscape or panorama - Sec. 59 (1) German Copyright Act). The photographer had taken the picture from the window of a private appartement opposite the street, however! The respective Austrian provision (Sec. 54 (1) (5) Austrian Copyright Act) would have been more liberal since it only focusses on the public location of the building and not the position of the viewer.

German Federal Supreme Court (Bundesgerichtshof - BGH) Urteil vom 5.6. 2003, I ZR 192/00, on remand Higher Regional Court (Oberlandesgericht - OLG) München, Urteil vom 16. 6. 2005, 6 U 5629/99. An English summary of the Supreme Court decision can be found in IIC 2004, Vol. 35, p 351.

Thus, we have a totally different outcome already between similar copyright jurisdictions such as Germany and Austria. Community law seems to tolerate this obvious obstacle to free movement of goods.

In this context, I also remeber having read an IPKat's comment on the City of Chicago hassling "professional" photographers taking pictures of the Gloud Gate sculpture in Chicago's Millenium park, nicknamed "the Bean". I think the dispute was settled after critical media coverage but the general issue that remains is that the pertinent US "public place exemption" only covers buildings and not sculptures (Sec. 120 (a) US Copyright Act). Theoretically, the general fair use provison could still apply.

In short, when it comes to this issue, the laws are split around the world and are not even harmonization in Europe.

Anonymous said...

As for the U.S. approach, the commenter above is correct: the U.S. Copyright Act recognizes "architectural works" as copyrightable subject matter (17 U.S.C. 102(a)(8)). However, it also provides an explicit "public place" exception that permits making, distribution, etc., of "pictorial representations" (e.g., photographs, illustrations) of architectural works, "if the building in which the [architectural] work is embodied is located in or ordinarily visible from a public place." (17 U.S.C. 120(a)). So a photograph of the New York City skyline does not infringe copyright in architectural works that appear in the photograph.

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