Monday, July 01, 2013

EVENT: Highlights from the IAL study forum held in London on 29th June, 2013

LONDON. Last Saturday I attended the study forum organised by The Institute of Art and Law ("IAL") as part of the "Diploma in Art Law" distance learning course I am currently enrolled in. The day-long forum was focused on the protection of cultural heritage in times of war and national panels (UK and France as the representative from the Dutch Restitution Committee was unable to attend on the day) established to consider and, where appropriate, recommend the restitution of cultural objects looted during the Nazi era of 1933 to 1945, or, in the case of the CIVS in France, pursuant to anti-Semitic laws passed by the Vichy Government. Attendees included Professor Norman Palmer QC (3 Stone Buildings, Lincoln's Inn), Jeremy Scott (Lipman Karas LLP), Kevin Chamberlain and Dr Barbara Lauriat (King's College London).
The presentations were, without exception, highly informative and stimulating and one of the highlights for me was Julia Cornett's talk on the evacuation of artworks by the National Gallery and the Tate Gallery (now Tate Britain) before WWII (by the time war was declared on September 1, all major works had been evacuated) and the continued safekeeping of evacuated works until the end of the hostilities in 1945. The plans were initially drawn-up as early as 1933 which, notwithstanding developments in Germany, seems surprisingly early given the government's policy of appeasement during the 30s. It is also worth noting that no legal documents of any kind were entered into by the institutions with the various "bailees" of works (largely stately homes and the Manod quarry in Wales) in respect of the "exiled masterpieces".
The recent developments in copyright law discussed by Dr Lauriat also warrant a special mention:
  •  Full term of copyright protection for "design derived from artistic works": under section 52 of the Copyright, Designs and Patents Act 1988 (the "CDPA"), artistic works that also constituted registered/unregistered design were entitled to a reduced term of copyright protection of 25 years. The Enterprise and Regulatory Reform Act 2013 (the "ERRA") will, however, repeal this section of the CDPA such that the full term of copyright protection under the Act (i.e., life plus 70 years) will apply to many forms of industrial, mass produced design. Professor Lauriat noted how IP academics and practitioners have opposed this change to the copyright regime in the UK on the basis that there is no (economic or other) reason why the design and "knock-off" markets cannot continue to coexist.
  • "Orphan works": a high proportion (in some cases up to 31%) of public collections are made up of "orphan works", namely works whose copyright owner either cannot be identified or located. These works pose a direct threat to the mass digitisation projects of museums, libraries and archives and the root of the problem, said Professor Lauriat, lies in the fact that since 1911 copyright is not a registerable interest in the UK (cf. Berne Convention). The European response in the form of Directive 2012/28/EU was described as narrow in its scope by permitting only certain publicly accessible bodies use of orphan works following, inter alia, a "diligent search" of such works but the UK's implementation under section 116A of the ERRA will be considerably wider as private as well as public bodies or persons may rely on this provision and the related regulations (yet to come) for the licensing of orphan works. Professor Palmer asked whether the test for "diligent search" under section 116A(3) would be objective or subjective to take into account the resources of a particular person/institution and while the Secretary of State has yet to provide regulations in this regard, Professor Lauriat was confident that the test would be objective. Finally, it is worth noting that section 116A does not affect the publication right in respect of unpublished works though under section 76 of the ERRA, the Secretary of State has the power to reduce the term of protection (currently under the CDPA's transitional provisions unpublished works are protected until 2040 so long as they remain unpublished).
  • Originality: copyright protection in the UK is grounded in the concept of "originality" which is not defined in the CDPA but rather developed (albeit inconsistently) in the jurisprudence. The test that has traditionally been deciphered from the relevant case law is whether a work "originates" with an author/creator meaning whether its creation is the result of "the skill, labour, judgment and effort" employed by such author/creator. The 2009 CJEU decision in the Infopaq case (and in 2012 the Football Dataco case) appeared to introduce a different, European test for originality though the court in NLA v. Meltwater stated that the test applicable under English copyright law remained unchanged in practice. Nonetheless, Dr Lauriat was of the view that perhaps the Infopaq case represented a fresh opportunity to revisit the concept of originality and in particular consider if the standard is met in photographs of three dimensional works such that copyright protection vests in these photographs (museums and galleries have long argued - and exploited - the copyrighted nature of these photographs; cf. The Bridgeman Art Library Ltd. v. Corel Corporation in which the district court reconsidered the Graves' case and held that no copyright vested in the photographs though note the higher standard of originality in the US vis-a-vis the UK).

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