European and international advances ip law

PUBLIC ART: CONTROL

1. Public art (narrow meaning): "traditional" copyright.

- Works of fine arts have always been considered copyright subject matter – no matter where they were sited.

2. Architectural works: architectural copyright.

- Architectural works struggled to be deemed creative works because of their functional dimension.

- This is the case of buildings and even more of those structures that are not thought for occupancy, such as bridges, dams and the like, which in some jurisdictions are not considered copyright subject matter.

- Over the years even architectural works managed to obtain copyright protection under a slightly different regime that goes under the name of 'architectural copyright'.

ARCHITECTURAL COPYRIGHT

The functional dimension of architecture was deemed the real obstacle to the recognition of any creativity.

Moreover, the establishment of a private right, such as the one granted by copyright law, was

deemed to jeopardize the public interest that architectural works performed just because of their functional dimension. This debate took numerous directions across various jurisdictions not only for historical, cultural and economic reasons related to architecture, but also due to the persistent divergences in the moral right regimes embraced by national systems.

Architectural copyright in the Berne System

It was the 1908 Berlin Revision Conference of the Berne Convention to oblige signatory states to introduce copyright protection for 'works of architecture', although without providing a precise definition of this novel subject matter. Subsequent to this amendment, countries proceeded to introduce it even though in a minimal version. For instance: - Article L. 112-2, 7° of the French Intellectual Property Code works of architecture and urban design - 1911 of United Kingdom design contained in architectural drawings

Architectural copyright out of the Berne System

In others countries,not adhering to the Berne Convention, such as the US, the debate continued as to whether an exclusive right would have encouraged creativity in the architectural profession. Besides, it was felt that because of the functional dimension that architecture performs drawing the line between 'inspiration' and 'appropriation' was even more difficult than for other copyright subject matters. Architectural copyright in the US When the 1990 US Architectural Works Copyright Protection Act (AWCPA) entered into force, the protection offered to architectural works differed significantly from the protection adopted in other Berne Convention countries, in relation to both the scope of the subject matter and the scope of the exclusive rights. Protection was limited to structures designed for human occupancy, with the exclusion of bridges, dams, tents, recreational vehicles, mobile homes and boats. Such protection includes the exclusive rights to prevent the duplication and distribution to

The public of any possible duplications. Such protection does not include neither the right to publicly display the work and authorize derivative works is not granted to architects, nor moral rights.

Architectural copyright in the EU

The only EU rule that considers architectural works is within the Directive 2001/29/EC (aka InfoSoc Directive), art 5(3), lett h), introducing the exception to the right to reproduce an architectural work.

In other terms, the EU law does not harmonise architectural copyright, it merely introduces the possibility to adopt the so-called freedom of panorama (FOP), meaning the 'use of works, such as works of architecture or sculpture, made to be located permanently in public spaces'.

FOP in the world

To understand and systematize it, we need to start from the acts of infringement that can take place in relation to works that are publicly displayed, which is mainly reproduction.

Reproduction of a public art work can be:

• two-dimensional
• The work is reproduced

by third parties painting it – or, more frequently nowadays – taking a photo; - To a certain extent this is allowed under the freedom of panorama which is one of those exceptions that have different scope among jurisdictions (eg, one may think that this "freedom" covers photos that do not have a commercial purpose, but in some countries the scope of the freedom is larger). - three-dimensional - The three-dimensional reproduction of architectural works is a relatively rare practice even though there have been cases in which this has happened in particular with regard to landmark buildings so to generate the debate on whether they should be protected for the huge investment that there is to create and the public role in terms of national pride that they perform. COPYRIGHT PROTECTION OF PUBLIC ART COPYRIGHT CASES IN PUBLIC ART The right of reproduction: There are two types the 2D (you have something in 3D and becomes 2D) and the 3D (you are turning something 3D into something in

1. (2007)Radford v Hallensteins Bros Ltd

Sculptures are protected by copyright as artistic works, which means that generally someone cannot copy the work in any way without permission of the copyright owner (usually the artist). However there is an important copyright exception which applies to public sculptures.

In Radford v Hallenstein Bros Limited, the plaintiff claimed that Hallenstein had infringed his copyright by photographing his sculptures and including the photograph on t-shirts it sold for profit. However, the High Court held that Hallenstein had not breached copyright because the activity was permitted under section 73 of the Copyright Act: the provision allows certain copying of sculptures, models for buildings or works of artistic craftsmanship that are permanently situated in a public place or in premises open to the public. It also permits issuing those copies to the public.

In sum, the photos of Radfords’ sculptures that were

used on t-shirts were considered not infringing copyright as the public interest at stake was deemed top priority. - Buren et Drevet v Lyon (2005) In the EU, the InfoSoc Directive lists the freedom of panorama as one of the optional exceptions that Member State can introduce. Some countries, like Denmark and Spain, already had it or introduced it, but limited it to non-commercial purposes. Other countries, like France, did not introduce it and then the decision was left to judges. In Buren et Drevet v Lyon, it was decided that the postcards of the Place de Terreaux, which included the 72 small fountains designed and built by the authors, did not infringe copyright even though they did not give credit and authorization was not asked. In France, authorization and credits are regularly required for other public spaces, like the Pyramid of the Louvre, the Bibliothèque nationale de France, or the Grande Arche de la Defense. Nonetheless, according to the court, the artwork was the central part.

of the image in those latter examples, while this was not the case for the fountains in the postcards of Place des Terreaux.

Three-dimensional reproduction- Miniature- Same size- (2011)

Wangjing Soho project

Designs for Wangjing SOHO, consisting of three pebble-shaped volumes up to 200 metres high, were unveiled in August 2011.

Meanwhile, in the southwestern Chinese city of Chongqing, a project called Meiquan 22nd Century is being built that observers say is a pirated copy of Hadid's design.

Satoshi Ohashi, project director at Zaha Hadid Architects, told the German website: "It is possible that the Chongqing pirates got hold of some digital files or renderings of the project."

As to a report on the legal aspects of the case, "up to now, there is no special law in China which has specific provisions on IP rights related to architecture."

Chongqing Meiquan, the developer behind Meiquan 22nd Century, had refuted accusations of copying and posted on its blog: "Never"

meant to copy, only want to surpass.Defining ‘commercial’ uses in the digital economyMost online platforms are commercial:- revenue may be derived from direct payment, advertising, the sale of end-user data, or acquisition;- their business model entirely around UGC such as shared photos;In the context of the Internet, therefore, the distinction between commercial and non-commercial maycause difficulties as to copyright protection;- For instance, this may inhibit socially useful activities and prevent further innovations in onlineeducation;- Even in contexts less obviously beneficial than education, the internet in general plays an importantrole in enhancing the public’s access to news and facilitating the sharing of information generallySharing public art on online platformsOne key aspect of this is the sharing of images. Approximately 95 million photos are uploaded onInstagram each day, and it has over one billion users (1.386 billion, in terms of potential ad

reach) as of September 2021.

One report on internet traffic growth by network equipment manufacturer Cisco has predicted that by 2022, online videos will make up more than 82% of all consumer internet traffic — 15 times higher than it was in 2017.

TikTok users spend more than 850 minutes per month on the app.

Despite the massive scale of image sharing today, sharing taking place in jurisdictions which have not extended the panorama exception to cover ‘commercial’ uses of copyright protected works may be infringing copyright law, particularly considering the undeniably profit-focused nature of widely used social media platforms

THE “MORAL SIDE” OF PUBLIC ART PROTECTION

The “moral side” of public art protection (I)

1. Right of disclosure
2. Right of withdrawal
3. Right of attribution • UK Copyright, Designs and Patents Act 1988 (sec 77)
4. Right of integrity • ‘prejudice test’ (art 6bis of the Berne Convention) - Calatrava’s Zubi

ight to be identified as such in a reasonable way. This means that the author's name should be displayed in a visible and permanent manner on the building or on a plaque nearby. The right of integrity, on the other hand, is the right to object to any distortion, mutilation, or other modification of the work that would be prejudicial to the author's honor or reputation. This right is particularly important for public art, as it ensures that the work is not altered or damaged in a way that would diminish its artistic or cultural value. In conclusion, while the issues of disclosure, completion, and withdrawal may not be as relevant for public art, the moral rights of attribution and integrity play a crucial role in protecting the rights of the artists and preserving the integrity of the works.