Copyright and Moral rights: New legislation (part 1)

In May or June 1989, visual artists’ and craftspeoples’ rights will be substantially improved when the new Copyright Designs and Patents Act of 1988 comes into force.

Key changes anticipated were signposted in this column last year (AM112) when the Bill was first published. Its passage through Parliament into law caused many amendments, now requiring serious consideration by every maker, administrator and collector – indeed anyone dealing with works of art or craft in any way.

The 1956 Copyright Act will be repealed by the 1988 Act which re-states the whole of copyright law on a logical and consistent basis and introduces many reforms and innovations, including moral rights for makers and rights of privacy for domestic and private commissioners of photographs. New criminal provisions will make convictions for making or possessing infringing copies in the course of business easier to achieve, and the penalties stiffer.

This month, Part I considers the new (1988) copyright law in the light of the old (1956) arrangements, much of which will continue to be relevant for many years to come, and will require all concerned with visual art and craft to understand both copyright regimes. Part II, next month, will tackle copyright infringements and remedies, especially the new criminal provisions. Part III, the following month, will deal with the new moral rights provisions, by which time a date for the legal changes coming into force should be able to be given.

PART I – COPYRIGHT

What works are protected?
‘Artistic works’ are protected against reproduction, publication, and televising, they are currently divided into two broad categories which will continue after the change in law, with certain improvements.

Traditional media works made before and after the change in law:
Paintings, sculpture, drawings, prints and photographs, irrespective of the quality of the image/object, made or existing before the law changes, will continue to be protected so long as the work is original (in expression – not necessarily in thought). Collages made after the new law comes in will be specifically included in this category of artistic work, unlike collages made or existing before the change in law (which currently offers them a lesser degree of protection as ‘works of artistic craftsmanship’ – see below).

Holograms made after the change in law will also improve their legal status by belonging to the traditional media grouping as ‘photographs’ (those made or existing before the change are arguably ‘works of artistic craftsmanship’). Prints made after the change in law, even by a photographic process, will be protected in their own right as ‘graphic works’ within the traditional media grouping (those made or existing before the change in law are protected as ‘photographs’ within the meaning of the 1956 Act when created by a photographic process e.g. photo-silkscreen, photo-engraving, photo-lithograph, and so on).

NB: Works made or existing before the law changes are now, and will remain, categorised under the old (current) 1956 Act; works made after the law changes will be categorised under the new (1988) Act For example, collages made or existing before the law changes, are and will remain, ‘works of artistic craftsmanship’ (see below) even after the law changes: such works made after the law changes will be categorised as traditional media works protected irrespective of ‘artistic quality’.

Works of ‘artistic craftsmanship’ made before and after the change in law:
Works made or existing before the law changes, which are not created by one of the current traditional processes, are now, and will continue to be, protected only if they have ‘artistic merit’; e.g. collages, montages, ceramics, jewellery, glass and other craftwork, artists’ bookworks, body art, installation, laser work, light works, mixed media assemblages, performance art, video works and (arguably) holograms.

Makers of such works claiming copyright protection must establish two things: that they applied their skill and taste to the making process; and that their intention was to create a work which would have appeal to the aesthetic taste of the viewer. In other words, found objects designated by the presenter/artist to be artworks (e.g. Duchamp) would probably not be protected for copyright purposes. Works made after the new law comes in win still require ‘artistic merit’ in order to be protected; however, collages and holograms, whatever their artistic merits, will switch categories and be protected in the traditional media grouping (see above).

NB: The categorisation of artistic works into the traditional media or ‘artistic craftsmanship’ groupings is important for copyright purposes. Works made or existing before the change in law are, and will continue to be, better protected if they are traditional media works.

HOW LONG DOES COPYRIGHT LAST?

Works made before the change in law:
‘Artistic works’ (traditional media or ‘works of artistic craftsmanship’) made or existing before the law changes are now, and will continue to be, protected for the maker’s lifetime plus 50 years after death,’ except for published photographs (including prints made by a photographic process) and traditionally made prints published before the law changes. Such published photographs will be protected for 50 years from the date of publication; as will traditionally made prints, if published after the author’s death and before the law changes.

Works made after the change in law:
‘Artistic works’ (traditional media or ‘works of artistic craftsmanship’) made after the law changes will be protected for the maker’s life plus 50 years after death; there are no exceptions.

NB: Photographers will doubtless be relieved at the new improved provisions for works made after the law changes; but must note, however, that copyright in works published before that date will expire 50 years after publication. Copyright heirs of printmakers deceased before the law changes must also understand that publication before the law changes causes copyright to expire 50 years from publication; and that authorisation of publication after the law changes will not affect the copyright which will expire 50 years after the maker’s death.

WHO OWNS COPYRIGHT?

Works made before the change in law:
The first owner of copyright in ‘artistic works’ made or existing before the law changes is, and will continue to be, determined under the old (1956) Act In relation to the following works, therefore, the maker is now, and will continue to be, the first copyright owner

  • all sculpture, commissioned or uncommissioned
  • all uncommissioned paintings
  • all uncommissioned drawings
  • all uncommissioned traditionally made prints
  • commissioned paintings and drawings which are not portraits
  • all works of artistic craftsmanship, commissioned or uncommissioned

NB: If any of the above works is made by an artist as part of their employment (not as a freelancer) then the employer will, and will continue to be, the first owner of copyright – unless the contract of employment states otherwise. In relation to the following works, the commissioner is now, and will continue to be, the first copyright owner:

  • all commissioned traditional prints
  • all commissioned photographs (including photographically made prints)
  • all commissioned portrait paintings and drawings

In relation to all uncommissioned photographs (including photographically made prints), the first copyright owner is now, and will continue to be, the person who owns the material on which the photographic image is made; i.e. the owner of the negative film or photo-sensitive screen/plate, when photo-printmaking techniques are used, is the first copyright owner – not the ‘taker/maker’

Works Made after the change in law:
The first copyright owner of all artistic works made after the law changes will be the maker; except where the maker is an employee and creates the work as part of their employment (i.e. not as a freelancer) – unless the contract of employment states otherwise.

NB: the new first ownership arrangements no longer distinguish between photographs and any other type or category of artistic work, nor between published and unpublished, commissioned or uncommissioned, works.

In relation to computer-generated ‘artistic works’, the maker will be clarified, for the first time, as being the person by whom arrangements necessary for the creation are made. Clearly, these changes will make users negotiating would-be commissions to use these improved rights as bargaining tools when commissioners are chiefly interested in artistic works being created for the purposes of reproduction/publishing. This was the stated intention of the Government when introducing these changes, and of the Arts Council which lobbied so earnestly and successfully to achieve them for all makers.

NB: Commission contracts for traditional prints, photographs and portrait paintings/drawings entered into before the law changes, but which are not completed by the time it changes, will be governed by the old (1956) Act; in other words, the commissioner will be the first owner of the copyright, unless the commission contract states otherwise. Commission contracts for all other works entered into before the law changes, but which are not completed by the time it changes, will be governed by the new (1988) Act; in other words, the maker will be the first owner of the copyright – even if the commission contract states otherwise!

MOVEMENT OF COPYRIGHT
The law stays pretty much the same. Owners of copyright cannot legally part with (assign) their copyright, unless they execute a document signed by them giving or selling their copyright to someone else – rather like selling a house. Permissions (licences) to reproduce copyright works will still be the exclusive right of the copyright owner, and such permissions will continue to be capable of being given orally; ie. a written document signed by the copyright owner is not a legal requirement for the giving of a permission. However, it is still the practice of most professional maker/copyright owners always to give such permissions in writing in order to prove they have done so, and never to give permissions orally.

© Henry Lydiate 1989

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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.