A Developing Global Framework

Copyright laws were created in direct response to the development of industrial technologies that enabled unique paintings and drawings to be copied and mechanically reproduced in multiple numbers.

The development of engraving and multiple printing techniques directly followed the invention of Johannes Gutenberg's mechanical printing press around 1450 in Strasbourg: 50 years later, around 1506, Albrecht Dürer brought a lawsuit in Venice against the engraver Marcantonio Raimondi for what we would now call a breach or violation of copyright. Venetian laws at that time, in common with everywhere else in the then developed world, did not recognise the concept of copyright. The case was decided on the basis of what was judged to be 'fair' – and is almost certainly the first recorded case dealing with what subsequently became copyright law.

During the next 200 years, more sophisticated mechanical printing techniques and technologies were created in the developed world, which led English artists (in particular) in the early 18th Century to lobby Parliament for the introduction of the first modern-looking copyright law: the Statute of Anne of 1710, which gave authors exclusive reproduction rights over their works for 28 years. The success of this English copyright statute inspired the English-trained lawyers who framed the US Constitution in 1787 to include a brief provision empowering Congress to enact laws 'to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries' (Article 1, section 8, clause 8).

Towards the end of the 19th Century, the recent industrial revolution had spawned the creation of numerous new mechanical methods for both reproducing and recording all forms of art. This, together with new forms of swifter international travel and communications, stimulated developed countries to come together and sign up to a seminal international treaty or convention at Berne, Switzerland in 1886/87: The Berne Convention for the Protection of Literary and Artistic Works.

The Berne Convention was an international agreement by which signatory states agreed to enact into their domestic legislation a common set of standards for copyright ownership, length, infringement and – most importantly – reciprocal enforcement. International reciprocity – the undertaking by states that they will enforce the laws of other states in exchange for their laws being enforced in such other states – is a vital ingredient in what has become the global framework of copyright laws and their enforcement, according to internationally agreed standards.

The Berne Convention is still in force, and has been regularly updated over the past 120 years or so: it has embraced the advent of sound recordings, sound broadcasting, moving pictures, television, software, digital technologies, and the internet. Copyright law has now been developed and enacted into the legal framework of most countries in the world, including the US, following the standard framework of the Berne Convention. The US government had resisted signing the Berne Convention until 1989. Congress enacted its basic provisions into US federal law the following year. Most countries have now signed the Berne Convention including, notably, the strongly emerging economies of the People's Republic of China, the Russian Federation, and the Republic of India: copyright is a powerful economic right. Although there are variations in copyright laws within Berne Convention signatory countries, the leading world economies, including the UK, have a commercial interest in subscribing to the latest and strongest versions of the treaty. Key standard provisions include the following.

Copyright law does not protect ideas. It protects the material or concrete expression of ideas. In the case of visual 'artistic works', as soon as an original work is made in one of six traditional formats, then copyright arises irrespective of the subject matter of the artwork. These formats are: painting, collage, sculpture, graphics, photography and architecture. Many artists still frequently ask 'How can I copyright my work?'. To which the simple answer is: just make the work and copyright arises automatically. It would be sensible to endorse the work with at least the author's name or monogram, date, and with the international copyright symbol ©. This device gives notice to the outside world that copyright law protects the work. There is no longer a legal requirement to register works with any body or organisation in order to 'get' copyright.

Copyright lasts for the author's life plus 70 years after the year in which they die, in most of the world's leading economies; and for around 50 years after death in other and developing countries. At the end of the copyright period, there is no copyright protection (but works may be protected under Trade Mark law if they are registered as such, and this can be renewed indefinitely). When copyright has expired (and assuming there has been no registration of the image as a Trade Mark) anyone is free to copy and disseminate such works, which are said to be 'in the public domain'.

The artist is the first owner of copyright, unless the artist is an employee and made the work during the course of their employment – in which case the employer owns the copyright. It is often wrongly assumed by commissioners of freelance artists that the commissioner owns the copyright. This is not so – unless the commission agreement states that this is to be the case.

Because copyright owners have the exclusive legal right to reproduce and disseminate their copyright works, no one else can lawfully do so without their express prior licence/authorisation. Such licences need not be given or sold in writing, unless they are meant to give the licensee exclusive authority. Nevertheless, all copyright licences, exclusive or otherwise, should always be made in writing and signed by at least the copyright owner, and should specify the terms and conditions and royalty payments due.

Most copyright legislation throughout the world makes certain exceptions to the copyright owner's exclusive right to reproduce. These exceptions allow anyone to reproduce copyright works without prior express licence/authority, but only for certain limited purposes, for example:

  • research/private study
  • criticism/review of a copyright work or of others relevant to that discourse – but only if the author is credited in any such publication
  • news reporting of current events 
  • making two-dimensional copies of three-dimensional copyright works that are permanently situated in a public place or premises open to the public
  • incidental inclusion in a film or television programme
  • advertising an artwork for sale.

Courts have dealt with much litigation in relation to these 'permitted acts', which are normally decided on the basis of whether the unauthorised act was 'fair' to the copyright owner. For example, in a recent High Court action, the publisher Phaidon was sued by the Matisse estate for unlicensed reproduction and publication of the artist's works in its 20th Century Art Book. Around 80-90% of each page of the book reproduced a work, leaving only 10-20% for 'criticism/review'. Phaidon eventually settled out of court, undertaking to pay the estate past copyright royalties for such 'unfair' usage, and future royalties. This case, although not strictly a legal precedent (because it was settled) gives a strong signal to artists and publishers that it is wiser to check with the copyright owner, and negotiate a copyright licence, whenever a 'permitted act' is being contemplated.

In an increasingly global copyright world, nearly all countries will now respect and enforce the copyright laws of all other countries, which means that artists whose works are exhibited or traded anywhere in the world, or whose images are transmitted via the internet, are now in a much stronger position to enforce their copyrights – globally, when necessary.

© Henry Lydiate 2008

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.