Copyright: A Suitable Case for Reform

Old Copyright law.

‘Who is going to achieve change? Not the Arts Council, not the RAAs, not the artists’ groups, not the arts organisations not the art schools, not the dealers and collectors; not any of these alone. Government will only shift if it hears very loud a unanimous voice’. So endeth the Epilogue of the last article (Art Monthly No 72) entitled ‘Welfare in the State of Art’.

The visual arts community has no single voice which truly represents and authoritatively articulates its needs. 1984 has already seen declarations by two groups wishing to tackle this problem, one aimed at protecting the interests of professional artists and lobbying for change (see Art Monthly No. 71, p.l8); the other aimed at co-ordinating the activities of organisations providing studios for artists.

Both state their intention to lobby for visual art copyright law reform. Whether or not they pool resources is a matter for them, but in the field of copyright law reform time is very short because the Government, after years of formal consultations and investigations, is about to do something. In these circumstances the following exploration of needs for reform is apposite. (In doing so, the current law is necessarily discussed in outline, but for a detailed guide see: “The Visual Artist’s Copyright Handbook’ by Henry Lydiate, published by Artlaw in 1983.)

Patronage in Days of Yore

Michelangelo: ‘Peace should be desired by eminent princes: in order that they may commission great works of painting for their republics, for the ornament and glory of their state, and to receive from them particular spiritual satisfaction and stirring spectacles’.

Robert J. Clements in ‘Michelangelo’s Theory of Art’: ‘Michelangelo entertained a lurking conviction that patrons who hold the purse strings are generally incompetent in art . . . that even generous patrons are usually ignorant of art’.

WHAT IS COPYRIGHT?

A. Current Law

Copyright law is set out in the Copyright Act 1956 and gives protection to creator of certain specific material or ‘works’ of which ‘Artistic Works’ is a category. Copyright is the right of artists to prevent other people copying their original work; the right only arises when a work is created, so that if there is no physical manifestation created by the artist there can be no stealing of the image by someone else. Thus, artists’ ideas or thoughts are not protected by copyright law, but a separate field of law called ‘Breach of Confidence’.

B. Reforms

The principal aim of the 1956 Act – to protect manifest ‘works’ against unauthorised copying- remains realistic, sensible and satisfactory; but the method and manner provided by the Act for achieving this aim is far from satisfactory for the visual arts.

WHAT WORKS ARE PROTECTED?

A. Current Law Because this is the area most in need of detailed reform, the current situation must be presented in some detail. Artworks are only protected if they pass three tests:

Test 1: ‘Artistic Works’

Artworks must fall into one of two groupings:

Group 1: Traditional Media

  1. Paintings (not defined by the Act)
  2. Sculptures (includes any casts or models of sculptures)
  3. Drawings (includes diagrams, maps, charts or plans)
  4. Engravings (includes etchings, lithographs, wood-cuts, prints or similar works which are not photographs)
  5. Photographs (means any product of photography or of any process akin to it – but not part of a cinematograph film)

Any work made in the above media, and irrespective of artistic qualities, falls into this grouping of ‘artistic works’. (If this appears curious, it is; so please press on).

Group 2: ‘Works of Artistic Craftsmanship’

Any work which does not fall within the ‘traditional media’ grouping, but which has ‘artistic merit’, can fall into this grouping. To do so, a work must therefore possess the ‘legal’ quality of ‘artistic merit’, which exists (in law) when:

– the creator applied skill and taste to its production;

and

– with the intention of creating an article which would have appeal to the aesthetic taste of those who see it.

Remember, artworks must fall into Group 1 or 2; only then are Tests 2 and 3 relevant.

Test 2: Originality

The work must be the product of original skill and labour. In brief, it must not be copied or substantially derived from the work of another artist.

Test 3: Qualified Person

The work must have been made by a person working or living in a country which has signed the international copyright treaties; the UK has, as have most of the countries in the rest of the world.

B. Reforms

Test 1: ‘Artistic Works’

The Act only offers protection to works made by so-called ‘artistic’ means, i.e. in the traditional media – and irrespective of ‘artistic’ quality; and to works of artistic craftsmanship – but with ‘artistic’ intent: hence the term ‘artistic works’. The use of this term is misleading and inappropriate: it is meant to distinguish ‘artistic works’ from literary, dramatic, musical works and so on, but in fact suggests work with ‘artistic merit’; it also fails to offer copyright protection, as it arguably should, to all visual works. What is needed, therefore, is protection for all ‘visual works’ (to distinguish them from literary, dramatic works and so on) but not necessarily for works which have so-called ‘artistic merit’.

It may well be necessary, then, to subdivide these ‘visual works’ into two groupings, so that different kinds of protection (i.e. length of copyright, ownership and so can be offered to each grouping. This is because the copyright needs of artists and craftsmen are arguably different to the needs of those producing other visual works not being artworks. For these reasons, it would therefore be appropriate to create two groupings of ‘visual works’: ‘artworks’ and ‘non-artworks’; and to have a working legal definition for each.

The best suggestion to be put forward to date is as follows:

Visual Works

Copyright shall subsist in the following visual works: a) Artworks Any manifestation intended by the maker to have aesthetic appeal through the medium of the eye: or b) Non-Artworks Any visual work not falling within the above definition of ‘artwork’.

This suggestion may not precisely fit the bill, but it gets pretty close. ‘Artworks’ would, thereby, include any visual artwork being produced in media or mixed media known to exist to date – and any media as yet undiscovered; ‘non-artwork’ would offer protection to all other visual works (not being literary, musical, and so on) similarly produced in media or mixed media known to exist to date – and any media as yet undiscovered.

Moreover, and perhaps of more importance, such a definition would eradicate the current unworkable, confusing, uncertain and archaic state of affairs, namely the artificial sub-division of so-called ‘artistic works’ into two inappropriate groupings: traditional media, which are further sub-divided into media nowadays seldom used alone in practice – paintings, sculpture, drawings and so on – and which do not necessarily of themselves produce artworks; and works of artistic craftsmanship, currently defined so as to require an element of aesthetic intent by the maker, and thereby excluding from pro-artworks but which, nevertheless, should receive copyright protection.

Finally, the Act compounds this unworkable situation by requiring not only that each artwork should fit precisely into one or other grouping (and into a subdivision of the traditional media grouping), but also should have different rules applying with regard to ownership and length of copyright, varying according to the grouping or subdivision into which that ‘artistic work’ falls. This whole area is very interesting (and often remunerative) for copyright lawyers; it does nothing to assist makers, owners and exhibitors of visual artworks – or non-artworks – to know where they stand. Radical reform is essential and long overdue.

Test 2: Originality

This is necessary and desirable.

Test 3: Qualified Person This is necessary and desirable.

HOW LONG DOES COPYRIGHT LAST?

A. Current Law

The general rule for ‘artistic works’ is that copyright lasts for the artist’s lifetime and for fifty years after the artist’s death. However, there are a number of exceptions which apply to particular kinds of work:

1. Photographs

If unpublished, copyright lasts until the date of publication and then for fifty years.

2. Engravings

If unpublished, copyright lasts until the date of publication. If published during the artist’s lifetime, copyright lasts for the artist’s life plus fifty years; if published after the artist’s death, copyright lasts for fifty years from the date of publication.

3. The Crown and the Government Generally, works made by or under the direction or control of the Crown or the Government are protected for fifty years from the date they were made; but in the case of photographs and engravings, copyright lasts for fifty years from the date of publication or, if unpublished, until publication and then for fifty years.

B. Reforms

From what has already been said about the definition of ‘artistic works’, the creation of a new definition for ‘artworks’ and ‘non-artworks’ would mean that the current different rules for the length of copyright in photographs and engravings should disappear. What might be needed are separate rules dealing with ‘artworks’ and ‘non-artworks’. Copyright in all ‘artworks’ might last for the artist’s life-time plus fifty years; and ‘non-artworks’ might only require protection for, say, fifty years from the date of publication – this would, therefore, deal with makers of visual works for solely utilitarian purposes for which fifty years might be considered to be a reasonable period of protection.

For visual works made by or for the Crown or the Government, the same new rules could apply and thus avoid the unnecessary distinction currently made between photographs and engravings on the one hand, and other ‘artistic works’ on the other.

WHO OWNS COPYRIGHT?

A. Current Law

Normally, the creator is the first owner of copyright in the work; but there are exceptions.

1. Photographs

The copyright owner is the person who owns the material on which the photograph is taken – not necessarily the taker of the photograph.

2. Commission

The Commissioner is the first copyright owner of a commissioned photograph, commissioned portrait painting or portrait drawing, and a commissioned engraving – unless there is a prior agreement to the contrary.

3. Employees

Employers own the copyright of the works of employees made during the course of their employment – unless there is a prior agreement to the contrary.

4. Employees of Newspapers, Magazines and Journals

Proprietors of such publications own the copyright in the works of their employees, but only for the purposes of publication in their own or syndicated publications – the employee-artist owns the copyright in such work for all other purposes. Prior agreement to the contrary is possible.

5. The Crown and the Government

The Crown or the Government own copyright in the works of their employees or commissioned artists contracted to make artworks for them. Prior agreement to the contrary is possible.

B. Reforms

1. Photographs A silly rule; the maker should be the owner of the copyright.

2. Commissions

A silly rule; the commissioner should be required to make a written agreement when wishing to vary what should be the normal rule, i.e. the owner should be the maker. And the distinction between visual works should be abolished, as discussed above (see ‘What Works Are Protected?’)

3. Employees

It would help to avoid unnecessary and very prevalent problems, created by the current rule, if employers were required to furnish a statement of the copyright position of their employees in the Contract of Employment which they must supply (by law) in any event. Most employees and employers are ignorant of the law as it stands, and this measure would draw it to their attention.

4. Employees of Proprietors of Newspapers, and so on

The suggestion made at (3) above, should equally apply here.

5. The Crown and the Government

The law should treat them like any other employer or commissioner.

MOVEMENT OF COPYRIGHT OWNERSHIP

A. Current Law

B. First ownership of copyright can only be changed if the owner puts the change in writing and signs the document – unless the owner becomes bankrupt or dies without making a will, when copyright passes to the trustee in bankruptcy or next of kin by operation of the law.

B. Reforms

The current position seems satisfactory.

KEEPING AND EXPLOITING COPYRIGHT OWNERSHIP

A. Current Law Copyright owners wishing to authorise use of their copyright works need not necessarily do so in writing.

B. Reforms

The current rule needs reforming in the case of visual artworks; all authorisations (licenses) should be required to be made in writing. This would avoid the unnecessary, distressing and often very expensive confusion arising from unauthorised copying by persons who wrongly believe they have received a verbal permission.

INFRINGEMENTS

A. Current Law

Mostly satisfactory, but there are some areas of interest and concern.

1. Causal connection

A copyright owner has to prove a causal connection between the copyright work and the unauthorised reproduction i.e. it must be proved that the copyright work pre-dates and has been used in the making of the infringing work.

2. Substantial Part

The copyright owner must also prove (amongst other things) that the infringing copy has taken a ‘substantial part’ of the copyright work.

3. Fair Dealing

Any person using copyright works for private study, criticism or review, is allowed to do so, as long as the use is ‘fair’.

4. Public Places

Sculpture and works of artistic craftsmanship may be painted, drawn, engraved, photographed, filmed or broadcast on T.V. – so long as those works of sculpture or craftsmanship are permanently situated in a public place or in a place open to the public.

5. Educational Establishments

Copyright works can be reproduced for examinations, but not for any other teaching purposes when a duplicating process is used.

B. Reforms

1. Causal Connection Decided court cases on this point have been helpful, but could be clarified in a new Act.

2. Substantial Part

Clarification of decided court cases is necessary, because the cases themselves are far from clear on this important point.

3. Fair dealind

‘Fair’ is not defined by the Act, the decided court cases are unhelpful, and clarification is necessary.

4. Public Places

There is no need to single out sculpture and works of artistic craftsmanship from any other artistic works situated in public places; the need is for consistency: all visual works or none at all. Clarification is necessary to explain what ‘permanently’ means (e.g. permanently on display or permanently affixed?); and whether ‘permanently’ applies to works situated in a public place and to works in premises open to the public. If such works are to be singled out for public copyright consumption, then is it necessary to restrict such consumption simply to paintings, drawings, engravings, photographs, films and T.V.? Surely, all forms of reproduction should be allowed, since the public at large believes that it has a right to make any copy of any artwork in public, and does so whenever it wishes.

5. Educational Establishments

Rules for the use of copyright works in educational establishments should be made easier and clearer; the current rules take no account of the modern technology available to teachers and heavily used by them.

REMEDIES

A. Current Law

There are some areas of concern and interest.

1. Civil Remedies

a) Who Can Sue?

Authorised users of copyright works (i.e. licensees) cannot sue for breach of copyright on their own – they have to ask the copyright owner to sue and cannot force him to do so. b) Damages The rules for evaluating loss and formulating claims for damages are so complex and difficult to understand, even for experienced copyright lawyers, that they are in need of reform. c) Knowledge Copyright owners currently need to prove in many cases that the infringer knew that the abused work was in fact protected by copyright; if not, the copyright claim may fail or, in some cases, not result in adequate remedies being ordered.

2. Criminal Remedies

The only criticism is of the fines which may be imposed on convicted infringers: they are too low, even though they have just been increased.

B. Reforms

1. Civil Remedies a) Who Can Sue? Copyright licensees should be able to sue in their own right. b) Damages The rules need simplifying. c) Knowledge The current requirement for copyright owners to prove the infringer’s knowledge of the existence of copyright, in some cases, should be abolished; absence of proof of such knowledge could be reflected (as in some cases now) in the remedies ordered by the Court. 2. Criminal Remedies The fines against infringers should be increased to provide a real deterrent – perhaps in line with those recently introduced to deal with video pirates.

MORAL RIGHTS

A. Current Law

Example: X exhibits A’s artwork as if it were the work of B. A and B have no remedy, under English Law; X is the rogue.

B. Reforms

A’s problem is denial of authorship; that is a moral right, known as the right of paternity, and is recognised in law by other European states. It should, but does not, exist in English law together with other moral rights for visual and other artists.

B’s problem is false attribution of authorship; that is a moral abuse against B’s professional integrity, and B should have a legal remedy the like of which exists in laws of other European states and is known as the artist’s right of integrity. It should, but does not, exist in English law, together with other moral rights for visual artists.

There is a strong case in favour of the Government’s use of Copyright Law, and its reform, to introduce at least the two moral rights discussed above – at no expense to the Government. It would do much good for artists, and would create more harmony between our laws and those of the rest of the EEC.

EPILOGUE

‘Who is going to achieve change? Not the Arts Council, not the.’

© Henry Lydiate 1984

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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.