Event report – “Intellectual Property and the Visual” ISHTIP 2019 2/2

For a summary of papers delivered in Day 1 of ISHTIP, see previous post here. And before you leave, make sure to check out at the bottom of this post the details for next year’s ISHTIP workshop.

 Day 2 of ISHTIP

The second day opened with a paper by Elena Cooper and Marta Iljadica (Glasgow University) on the status of architectural copyright in mid-nineteenth century Britain. Architectural copyright at the time was a three-way bone of contention between architects, builders and painters. Readers might be surprised to find out that, at the time, architects were more interested in securing copyright for housing design rather than the design of monuments.

There are two main reasons for this. First, housing at the time was the type of architectural work that was shaping the face of cities. Housing was, therefore, the opportunity to make your mark on the architecture of a city as well as a significant source of business for architects. Second, architects were concerned about builders who lacked the skills to do justice to their architectural work, producing low quality renderings of their housing design. Securing copyright protection could be a way to diminish the likelihood of low quality building work.

The problem is (or was)… originality. Housing design did not come across as particularly original in comparison with monument design. Copyright protection was thus least accessible to designs for which it was most desired.

The following paper, by David Lindsay (University Technology Sydney), discussed the practice of Tableau Vivant (also known as ‘living sculptures’ or ‘living pictures’) and its position within the intellectual property framework. Are they lawful transformation of paintings or infringing copies thereof? The paper discussed the position of 3D renderings of 2D ‘works’ in common law systems.

In the second session, Uma Suthersanen (Queen Mary University London) and Paula Westenberger (Brunel University London) discussed an ongoing research project on the digitization of cultural heritage objects held in British museums. The authors explore various theoretical frameworks that may serve to identify when, how, and by whom cultural heritage objects may be digitized.

In so doing, they reference discussions covered in previous blogs, such as the concept of “copyright surrogate”, or “surrogate intellectual property rights”, formulated by scholar Dr Andrea Wallace (see here, here and here), and the role of intellectual property in decolonizing digital cultural heritage in the context of repatriation (see previous posts here and here).

Sarah Hook (Western Sydney University) followed with a paper on the policing of selfies by museums with and without intellectual property. The paper focuses on the doctrine of moral rights and questions whether they pose a barrier to the public’s engagement with artwork.

Day 2 closed with a panel on photography and copyright. In her paper, Amy Landers (Drexel University Kline School of Law) questions whether intellectual property law (copyright or trade mark lawyers) could teach criminal lawyers a thing or two about engaging with non-text media. Landers reminds us that intellectual property engages with non-text media much more frequently or routinely than do any other legal disciplines.

In so arguing, Landers stresses how the entire legal system, in its content and procedures, is based on text and how judges, counsels or witnesses are challenged when they are confronted with visual content, such as those submitted in evidence. So here we were, sitting for a day and half in agreement that the laws of copyright, trade mark or passing off are not doing a great job at truly integrating the visual into their doctrines, only to find out (from Landers’ paper), that intellectual property law actually fared pretty well compared to other legal disciplines. In the kingdom of the blind, the one-eyed man is king.

The session continued by a paper on originality and photography, by Saptarishi Bandopadhyay (Osgoode Hall). Bandopadhyay laments that photography (any kind of photography) has entered the realm of copyright. The crux of the criticism is the expansion of copyright protection over the content of the images, or the layout within photographs, a particularly problematic aspect of the jurisprudence in his opinion. In this regard, the paper offered a refreshing perspective on this topic.

Day 3 of ISHTIP

A paper by Derek Miller (Harvard University) kick-started the third and last day of the workshop. The author points on the impact of text formats on the readers’ experience. In the paper, Miller looks at the position of script format within the process of publication and copyright protection broadly speaking. Miller looks at “how playwrights do, can, and should control the texts printed under their names”.

The last session of the event featured papers by Brad Sherman (University of Queensland) and Nari Lee (Hanken School of Economics). Sherman retells the early history of patent and chemistry. His work challenges the commonly-held belief that chemical inventions were the unloved children of early patent law. Sherman takes the experience of the chemical industry in the United States to demonstrate that this is not true, or at least not entirely true. Evidence shows that the discipline of chemistry has a longstanding presence in the history of patents.

In her paper, Lee discusses the exclusion of aesthetic visual objects from the scope of patent law by asking whether this exclusion should be revisited on account of digital technologies. Lee explains that this exclusion from patent was driven by the wish not to see overlap between these intellectual property rights, and it continues to be upheld for this reason.

Next ISHTIP workshop (2020)

The next ISHTIP workshop is scheduled in Bournemouth (UK) in July 2020. Pencil in the information in your calendar but do note that it may be subject to change as the event details have yet to be finalised (they will be published by the next ISHTIP host, in this case Bournemouth). Keep an eye out for the call for contributions, which is expected to come out in the next few months.