The Englishman’s Unalienable Right To Photograph His Furniture
Few people had heard of s.52 of the Copyright Designs and Patents Act 1988 (which provides for a shortened 25 year term of copyright for artistic works which are exploited industrially) until the UK Government decided in 2013 to repeal it.
Since then, the Government has appointed a repeal date (April 2020); been threatened with judicial review by a number of design firms for appointing a date too far in the future; revoked the order specifying the repeal date, and just finished a “consultation” asking for opinions on a new date (smart money is currently riding on 28 April 2016).
Respected intellectual property blog IPKat summarised the issues in the form of a letter of complaint from Santa Claus to the Intellectual Property Office (as you do). Santa also commented on some of the more startling suggestions made in the IPO consultation paper relating to transition periods and sell offs.
Arstechnica.com and Cory Doctorow, both of whom are vehemently opposed to the repeal, were less convincing in their objections, falling back on “you may need to take out a licence to photograph classic designer objects even if you own them” and “you’ll need a license to post photographs of your own belongings.”
Photographing one’s things seems a fairly niche interest, and surely not widespread enough to justify Doctorow’s claim that “a law that everyone is guilty of is a law that is ripe for abuse, because it allows rightsholders’ estates — often capricious corporate entities — the right to ruin the lives of anyone they dislike, for any reason.”
So what is s.52 actually about, and why does it arouse such strong feelings?
The second half of the question is easier to answer than the first. The issues with which s.52 CDPA seeks to deal go to the heart of what, actually, is art?
Separating the fine from the applied arts goes back centuries. Furthermore, the distinction is soaked in issues of class and sex discrimination.
The Royal Academy of Arts (RA) made it clear from as early as 1771 that areas such as needlework would be excluded from consideration for its exhibitions, no matter how much skill or aesthetic judgement had gone into their production. The combination of restricting the definition of art and imposing requirements on art training which it was harder for women to meet (such as drawing from the live human form) had a predictable effect. Although the founders of the RA in 1768 included two women (out of forty), the next woman to become a member would be Dame Laura Knight, in 1936.
The under-representation of women in fine arts was less obvious in applied art and design. At the very start of the 20th century, Mary and Frances Macdonald were enormously influential in shaping the “Glasgow School” of design (their husbands were also quite famous in the field). Clarice Cliff (ceramics), Florence Knoll and Ray Eames (furniture), and the women of the Bauhaus including metalworker Marianne Brandt, Marguerite Friedlaender-Wildenhain (ceramics) and Gunta Stölzl (weaving) pushed the boundaries of design.
Furthermore, the Modernist movement of the 20th century saw an explosion in the development of ground-breaking design standards applied to functional objects such as furniture, light fittings, glassware, cocktail shakers, pens, bath-taps and so forth. Increased consumer affluence and the aspirational role of mass media likewise played their part, as did the vastly increased range of materials available for production.
Notwithstanding that, the legal protection for applied art reflected its status compared to fine art.
The Berne Convention permits signatory states to apply a shortened (twenty-five year) copyright term for artistic works exploited by means of “an industrial process”. Section 52, therefore, takes full advantage of this exception. The minimum copyright term for other artistic works under Berne is the life of the creator plus fifty years. In the EU, by virtue of the Copyright Term Directive, the minimum period is currently life plus seventy years.
Accordingly, the repeal of s.52 would mean that an unspecified number of artistic works created long ago would come back into copyright and remain protected well into the future. For example, Mies van der Rohe’s Barcelona chair, created in 1929, would remain in copyright until 1 January 2040.
But what works would be covered? To be protected by copyright at all, an item must be classed as an artistic work. Here the law becomes incredibly confusing.
Not all works qualify for copyright protection. Furthermore, given the length of copyright terms, the definition of “artistic work” needs to be considered under three separate UK copyright statutes.
The Copyright Act 1911 defined artistic work as including works of painting, drawing, sculpture and artistic craftsmanship, and architectural works of art and engravings and photographs.
The Copyright Act 1956 turned this into an exclusive definition, as follows:
artistic work means a work of any of the following descriptions, that is to say,
(a)the following, irrespective of artistic quality, namely paintings, sculptures, drawings, engravings and photographs;
(b)works of architecture, being either buildings or models for buildings;
(c)works of artistic craftsmanship, not falling within either of the preceding paragraphs.
The CDPA 1988 added its own definition:
Artistic works.
(1) In this Part “artistic work” means—
a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality,
b) a work of architecture being a building or a model for a building, or
c) a work of artistic craftsmanship.
(2) In this Part—“building” includes any fixed structure, and a part of a building or fixed structure;
“graphic work” includes—
(a) any painting, drawing, diagram, map, chart or plan, and
(b) any engraving, etching, lithograph, woodcut or similar work;
“photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;
“sculpture” includes a cast or model made for purposes of sculpture.
For a copyright claim to succeed after the repeal of s.52, therefore, the claimant would have to bring the disputed item within one of the existing categories of “artistic works”, most probably by showing it to be “a work of artistic craftsmanship.” Although artistic quality may not be considered in relation to graphic works, the statutes clearly leave it open for consideration when it comes to “artistic craftsmanship”. Unfortunately, a court of law is not the best forum in which to judge aesthetics.
The tortuous reasoning applied by the House of Lords in Hensher v Restawhile (1976) shows how difficult this assessment can be, and how wise the legislature was to avoid bringing questions of artistic merit into copyright actions in relation to other artistic works.
The major problem area plainly lies with existing works. Many people have built legitimate businesses on manufacturing and selling items which reproduce classic modern designs which are out of copyright. They have legitimate interests which need to be considered too. The point of having term-limited copyright and design rights is so that after expiry of rights a new generation of designers can build upon the successes of the past. Furthermore, establishing ownership of newly revived copyrights will be no picnic. Multi-million pound lawsuits could easily turn on whether an individual designer last heard of in a gulag in the 1960s USSR carried out work in a 1930s Berlin design house, subsequently bombed, as a freelancer or an employee.
The UK Government has reached the conclusion that it has to repeal s.52 in order to comply with its obligations under EU law, specifically under the Copyright Term Directive. The IPKat article links to some academic opinions disagreeing and a formal challenge might bear fruit. However, even if repeal is required, the following steps would considerably mitigate the ill-effects of having life plus seventy year terms for functional items such as pottery or furniture:
- Have the six months until repeal plus six months sell-off/run down period discussed in the consultation document run from the end of the consultation period, not its start. This gives us all a year to get our ducks in a row. Better yet, revert to a longer period, say two years.
- Given that the proposed repeal will bring back into copyright works which have been open for reproduction since, in some cases, the 1950s, any implementing regulations need to make it clear that they do not affect anything done during the period in which they were out of protection, and that copies which were not infringing at the date they were made cannot subsequently become so. The wisdom of this suggestion is independent of the fact that most of this article was composed while the writer was sitting on a very fine (and completely legal) replica Florence Knoll sofa.
- There may be a need to include an exception (along the current one for incidental inclusion of architectural works) for incidental use of classic design objects in film and television. After all, as an economic way to convey a character is a psychopathic Scandanavian billionaire with impeccable taste, the go-to technique has always been “say it with light fittings.”
- Give statutory guidance as to how “work of artistic craftsmanship” is to be intepreted. For example, publish a list of non-exhaustive, non-conclusive factors indicating that a work should be considered a work of artistic craftsmanship. These might include “its designer’s work has featured in major retrospective exhibitions” or “an example of this work was included as set-dressing for the villain’s apartment in a Scandi-noir thriller.” Other suggestions are available.
- Introduce an effective implementation of the EU copyright exceptions for acts done by private individuals for personal use (therefore allowing people to advertise their very fine (and completely legal) replica Florence Knoll sofas for sale on eBay)
- Implement the Hargreaves Report’s proposals on orphan works. Applied arts depend less on individual named artists than on the productions of design teams working for organisations. It may be possible to identify an individual artist working within a given atelier, but as the years pass it becomes increasingly difficult. Orphan work legislation is vital.
- Long copyright terms are a problem, but long copyright terms coupled with increased emphasis on corporate personhood and uncertainty as to authorship are a menace. The EU needs to consider whether its harmonising directives should harmonise protection in line with Berne minima rather than maxima.
In the 1980s case-law under the Copyright Act 1956 extended copyright in 2D design drawings to items made from those drawings, provided the 3D item could be recognised as an embodiment of the original design. Artistic merit and craftsmanship were irrelevant; the issues were purely formalistic. Had the original design been recorded in a design document (protectable) or merely in a prototype (not)? Could a lay observer, presented with the design document, visualise the finished product from it?
The result was to extend life plus fifty year terms (as they then were) to the most banal of household products and to stifle innovation at source. The introduction of unregistered design right and the introduction of provisions such as s.52 in the CDPA were intended to curb these excesses.
The present situation seems equally in need of review.
As ever with copyright, things come down to the balance between the rights of creators to make money from their creation (an economic right) and the right to be known as the creator (a moral right). Furthermore, given that designers take fire from other designers, how wide a scope of monopoly is justified in the societal interest of encouraging design freedom?
None of these are easy questions (most veer between impossible and fundamental.) But they deserve more nuanced consideration than: “I can’t photograph my things. Waahh!”
The main image used for this article is from: Eames Chair & was used under the terms detailed at the above link on the date this article was first published.