Copyright in works in public places

The IPKat has been doing some mewsing about a copyright issue that has interested him ever since the Covered Reichstag litigation in Germany. In that case the Bundesgerichtshof ruled that the celebrated wrapper Christo was entitled to enforce his copyright against a vendor of postcards of his Covered Reichstag (right): the defence to copyright infringement in respect of the making and copying of images of public buildings on permanent display did not extend to the not-so-permanent artwork in which the building was enshrouded.

It occurs to the IPKat that, while there is a large market for picture postcards and other memorabilia of buildings and works of art that are situated in public, there doesn't appear to be any move to establish an international standard for the protection of either the rights of copyright owners or of those who wish to make use of publicly accessible cultural icons. The Berne Convention, for example, only has general provisions such as

Article 9
(1) Authors of literary and artistic works ... shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.

(2) It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.

In the United Kingdom the Copyright, Designs and Patents Act 1988 however makes highly specific provision for unauthorised but legitimate copying of such works:

"Section 62.—(1) This section applies to—
(a) buildings, and
(b) sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.

(2) The copyright in such a work is not infringed by—
(a) making a graphic work representing it,
(b) making a photograph or film of it, or
(c) broadcasting or including in a cable programme service a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright".

The IPKat wonders why this curious little area of law has not received more attention. He also wonders what provisions other countries may have adopted - especially the USA (where prospects of mega-damages have done so much to stretch copyright and its defences to their outer limits), France (where the rights of the creator have traditionally been so staunchly protected) and China (a jurisdiction that has carefully considered the experiences of many other countries before passing its own IP legislation).

Right: Christo's portrait of the IPKat - or is it Merpel?

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World's ugliest buildings here and here
Other ways to cover buildings here and here