Chapter 2 Outline answers to essay questions

Chapter 2 Outline answers to essay questions

Copyright

This essay requires a description of what copyright does protect in the field of art; that is, the works defined in s 4. These are described largely functionally; that is, with reference to how the work is made. Thus the Act only protects works falling within the definitions in s 4(1). ‘Graphic works’ are defined with references to examples, but there is no apparent protection for works created in three dimensions apart from things that fall within the statutory definitions of ‘sculptures’, ‘works of artistic craftsmanship’, or ‘engravings’. Reference to the cases on these definitions is needed, particularly the recent Lucasfilm case in relation to sculptures.

The academic writing on the topic largely criticizes this reductionist approach to art; for example, Anne Barron points out that much modern art would struggle to fall within any of the definitions. The key artistic elements of conceptual art, performance art, and art ‘installations’ may consist not in the individual parts (which may include video, machinery, computer equipment, and so on) but in the assembly as a whole when viewed in context. So although individual elements of such a work may be protected, the whole is not. For example, a similar artwork may be made of different sound recordings and machinery, whilst taking the underlying artistic concept. Unless the whole thing can be classified as a work, it will not be properly protected.

This rigid categorization has been criticized by Christie as not complying with the Berne Convention. More recently, its legal validity has been called into question by EU case law flowing from the Information Society Directive. The reasoning for this (given that the Directive is about infringing acts, defences, and remedies) needs to be explained in terms of the conceptual link between the doctrine of infringement by taking part of a work and the concept of originality, taken together with the ECJ’s approach of interpreting EU law by identifying underlying principles and extending them.

Leaving aside the impact of EU law, the UK approach may be softening as a result of the Lucasfilm decision, which discarded earlier case law in favour of an approach to sculpture that focused more on the intention of the artist. It is not clear how far this will be taken, but it may result in a broader range of three-dimensional creations being protected. David Booton has noted (in relation to the earlier Metix case) that this approach bears similarities to concepts of the nature of art from the art world.  But it is now clear that this area of law is part of a harmonised EU copyright law (Infopaq and following cases, particularly Painer and Bezpecnostni) and will be developed ultimately by the ECJ. 

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