Copyright and Moral rights: New legislation (introduction)
On October 30 1987, the Government introduced into the House of Lords the long overdue measure to reform the law of copyright and other intellectual property: The Copyright, Designs and Patents Bill'.
It restates the whole of copyright law on a logical and consistent basis, introducing many reforms and innovations, which have become increasingly necessary as the development of modem technology has made the provisions of the 1956 Copyright Act (currently in force) no longer appropriate or effective, and as the United Kingdom’s international treaty obligations have required harmonisation of our laws with those of other countries, especially European states.
The Bill is extremely complex and far-reaching and tackles head-on the difficult question of effective protection for authors against unfair economic and moral abuses of their original works (whether visual, musical, dramatic, literary, film, video and TV or sound broadcasts). In the visual arts, the impact of the Bill’s current provisions (if they are not amended or deleted during what is likely to be a stormy passage through Parliament into law) will be substantial. Some of the key changes will be these.
Paintings, sculpture, and drawings will continue to be protected as now; but prints of any kind will be helpfully redefined. Currently, if prints are made by a photographic process, they are protected as if they were in fact photographs – leaving only traditionally-made (i.e. non-photographically produced) woodcuts, lithographs, engravings, silk screens, etchings and so on, protected as ‘prints’. The new definition will remove the distinction between photographic and non-photographic methods of print-making, leaving all ‘prints’ protected as such, and not as photographs. This change will be even more significant since, as will be seen, the length of copyright protection for photographs will be far shorter than for other visual works.
Copyright protection will last for the maker’s lifetime plus 50 years after death, except for photographs which will last only for 50 years from the making of the original image i.e. from the taking of the photograph. This provision will abolish the current rules which offer different lengths of protection depending on curious factors such as the date of publication of a print, or photograph; thankfully, these will be removed.
One point on the new length for photographs: the new rule will seriously reduce the current length of copyright protection which lasts for 50 years from the date of authorised publication (by the copyright owner or copyright heir) and forever, if never published. There is a strong lobby currently pressing members of the House of Commons and of the Lords to change the new provision during the passage of the Bill, to make the length of protection for photographs the same as for all other visual artwork: author’s lifetime plus 50 years after death.
At long last, the Government has recognised the need to abolish the current ‘commissioning rules’. These provide that in the case of a commissioned print or photograph of any subject matter and painting or drawing of a portrait, the first copyright owner is the commissioner, unless the commission contract expressly states otherwise. In other words artists currently commissioned to make photographs or prints of any subject matter or paintings or drawings of portraits have to negotiate (usually from a weak bargaining position) before the commission is agreed, for their copyright in such works. These rules will be abolished: all makers of all visual artworks, commissioned or uncommissioned, will henceforth be the first copyright owners – and it will be for the commissioner to initiate negotiations, at commissioning contract stage, to buy or acquire the copyright, if they wish, from the artist. A marvellous reform, due in no small measure to sterling efforts in the past year or so by the Arts Council, who launched a strident campaign to persuade, cajole, and convince the Minister through the Department of Trade and Industry, to accept the need for this reform, which will undoubtedly strengthen the bargaining power of all photographers, print-makers and portrait artists currently being commissioned. Incidentally, this lobbying role, recently adopted by the Art Department of the Arts Council, is a most welcome and refreshing innovation – long overdue, as regular readers of this column will no doubt recognise. Let us hope, and there is every reason to believe, that it will continue.
And there’s more; going also will be the current rule that the first copyright owner of uncommissioned photographs belongs to the person who owns the material on which the photographic image is first made i.e. not necessarily the taker, but the owner of the negative film or photographic plate. The new rule will make the taker of the shot the first copyright owner – irrespective of who owns the film (or even the camera, for that matter).
In summary, therefore, we will finally achieve a rule that has been increasingly necessary, certainly desirable, for literally hundreds of years: all makers of all visual artworks will be the first copyright owners – save in the case of employed artists (not freelancers) whose employers will, as now, continue to own copyright in works made during the course of their employment, unless their contract of employment specifically changes that rule of law. The most controversial and, in my view, the most welcome innovation in the Bill will be the introduction of new rights in fulfilment of the United Kingdom’s international obligations, under the Berne Convention, to protect artists against abuses, of their works and of their reputations, which are decidedly not economic i.e. denial of authorship, distortion of images and false attribution of authorship. These are moral rights, known also as ‘droit moral’, itself a fundamental component of the European notion, encapsulated in continental law elsewhere for many years, of ‘droit d’auteur’. The essential features of the scheme (which also, incidentally, covers writers, musicians and filmmakers) for visual artists, are these. Protected works will include all visual artwork, and works of artistic craftsmanship and of architecture, so long as such work is ‘original’ i.e. original in expression (not thought), manifesting the fruits of the author’s own skill and labour – not of some earlier author; slavish copies are out, as are works which manifest substantial features of another, however skilful their execution. The creator of any such original work is given moral rights as author, whether or not the work has been commissioned or executed whilst an employee, student or apprentice.
There are five rights:
Identification as author:
This will give creators the right to be identified as author, whenever the work is published commercially, exhibited in public, or included in a TV programme or film. This new right will considerably strengthen artists’ bargaining power in initial contractual negotiations for commissions and terms of employment. In addition, artists whose works are exhibited in public, especially sculptors and artists/craftspeople whose works are permanently sited in or on buildings and in spaces open to the public, will now be able to insist on their identification as author.
No unjustified modification:
Creators will be given the right not to suffer unjustified modification whenever the work is published commercially, exhibited in public, or included in a TV programme or film. Modification means any addition to, deletion from, alteration to, or adaptation of, the artwork; such distortions will be unjustified if they are unreasonable and prejudice the honour and reputation of the author. This new right will enable artists to check distortions, before and after the event, and whether or not they own copyright: only artist employees cannot intervene if their boss has approved any modification. It even enables artists whose works are exhibited in public, especially those sited in or on buildings, and in public spaces, to insist that distortions (including the ravages of time and the elements, as well as of vandalism) be checked and corrected. As has been outlined many times in this column, there is a common myth amongst commercial publishers, then-reproduction technicians, and fine artists alike, that it is not an infringement of copyright to take an artist’s original image, modify it slightly, and then reproduce it; this new moral right not to suffer unjustified modification will, once and for all, kill that myth: such modifications will, under the new law, be a moral right infringement and continue to be a copyright infringement.
No false attribution as original author:
This is not a new right, it exists in law today, and gives creators the right not to be named as authors of works they did not create, whenever such works are shown to the public, through exhibition or publication of copies including film and TV programmes. For example, Eduardo Paolozzi would be able to check his being named as author of works he did not create.
No false attribution as author of altered work:
This is also not a new right, it exists in law today, and is the right of any artist whose work has been altered without consent, to stop being named as author whenever anyone deals with such work or copies of such work by way of trade. For example, David Hockney would be able to check anyone dealing with his original work, or copies, which had been altered without his consent, but not those who published, exhibited or showed such altered work, or who did so by way of trade even without naming him as author – all of which the new right not to suffer unjustified modification (mentioned above) would catch.
No false attribution as author of a copy of work:
Again, this is not a new right, it exists today and will continue to enable artists to prevent dealers falsely trading in copies of their works purporting to have been authorised by them. All five rights will last for the author’s lifetime and for a period after death: the first two, the right to be identified and not to suffer unjustified modification, will continue for 50 years beyond the author’s death and will be capable of being bequeathed in artists’ wills.
The last three rights concerning false attributions, will continue for 20 years beyond the author’s death but will not be capable of being bequeathed in an artist’s will (which means that only the deceased artist’s personal representatives will be capable of taking action to enforce such rights). Exceptionally, in the case of photographs, all five rights will only last for 50 years from the making of the image. Although the current draft Bill will enable artists to waive these new rights (a provision currently the subject of great consternation and much lobbying of Government on behalf of artists, before it becomes law), none of the moral rights will be capable of being transferred or assigned by the artist to anyone else during his/her lifetime. This latter facet of the new law will strengthen the real value of this legislation to all artists in the U.K. When negotiating contracts or commissions, exhibitions, employment and copyright permissions, authors will henceforth have an absolute right to insist that the contractual terms and conditions properly provide for their personal involvement in approving the quality, method and manner of their work being seen by the public. It will be for the would-be commissioner, exhibiting body, employer, or copyright licensee, to initiate discussions about waiver and to offer incentives enough to the artist to agree to waive any or all of their moral rights. Moreover, even if an artist’s waiving of these rights is successfully achieved – at a price – such waiver will equally be capable of being revoked by the artist – perhaps also for a price – and, in any event, many of the abuses which artists will be able to correct under the new law, are matters which they will have had no opportunity of foreseeing or any right to negotiate at any stage after their original work left their possession.
UK artists are already preparing to take advantage of these new rights. The Design and Artists Copyright Society (D.A.C.S.), which currently polices United Kingdom copyright infringements on behalf of its members, who comprise U.K. and other European authors of original visual works, is gearing itself to do so. Every year D.A.C.S. collects tens of thousands of pounds for their members from infringers who have reproduced copyright works without permission. Whilst welcoming such financial recompense for economic abuses, many living artists (or deceased artists’ copyright heirs) also feel aggrieved by the quality, method and manner of such unauthorised reproductions – about which they can do little or nothing as the law stands today. But, soon, they will be able to act, with legal right on their side. One measure currently being considered is a warning to would-be abusers: artists’ standard copyright by-lines may well be amended by appending to the original work the following words:
All rights reserved.
No part of this work may be reproduced or transmitted in any form or by any means or stored in a retrieval system of any nature, without the written permission of the copyright holder.
No part of this work may be modified, without the written permission of the artist
No part of this work may be exposed to public view in any form or by any means, without identifying the artist as author.
© Henry Lydiate 1987