Problematic public sculptures provisions

Daniela Simone completed a student placement program through the University of Sydney at Arts Law in the Autumn semester of 2006. Ryan McConville completed a student placement program through the University of Wollongong at Arts Law in the Spring semester of 2006.

The law now

The Copyright Act 1968 (Cth) (Copyright Act) provides that creators of artistic works have the exclusive rights to reproduce the work, publish the work and communicate the work to the public (which means broadcast the work or upload it onto the internet).

So generally when someone else wants to use one of these rights they must seek the permission of the artist and the artist has the power to charge a fee in return for granting permission.

However, the Copyright Act is also sprinkled with exceptions which sometimes allow people to use the exclusive rights of the copyright owner without permission or payment.  Some of these relate to what are called fair dealing purposes, such as when a work is used for research or study purposes, criticism or review, or reporting the news.

Section 65 of the Copyright Act contains another instance where someone can exercise the exclusive copyright rights of an artist without their consent and without payment to the artist. Under section 65, sculptures or works of artistic craftsmanship that are on permanent public display (in a public place or in premises open to the public) may be reproduced without the permission of the copyright owner (section 65 exception).

A ‘reproduction’ for the purposes of this section includes making a painting, drawing, engraving or photograph of the work, and including the work in a film or television broadcast. Permitted reproductions under the section 65 exception extend to the conversion of the work into digital form and to commercial as well as non-commercial reproductions.

The principal rationale originally behind the section 65 exception is that it is very difficult to control the copying of public artworks. For example, attempting to prevent tourists from taking photographs of sculptures in Hyde Park would be a difficult, if not impossible task.

The scope of the section 65 exception

While identifying what is a sculpture for the purposes of the section 65 exception will usually be an easy task, the same cannot be said for works of artistic craftsmanship. The term is not defined under the Copyright Act, however it is understood to include handicrafts such as ceramics, wood, metal and glass works that are the result of the artist’s manual skill, and have artistic rather than mere functional value. Examples of works of artistic craftsmanship may include mosaics, decorative pottery and stained glass windows.

The impact of Section 65 on artists

Sculptors and those creating works of artistic craftsmanship may have little or no objection to members of the public taking photographs of their work for non-commercial purposes. However, concerns arise when an artist’s work is reproduced in two-dimensional form and then commercially exploited, for example by making postcards containing an image of the sculpture or reproducing the photograph of the work in a book.

Under the current law there is nothing to prevent commercial exploitation of a work that is subject to the section 65 exception from occurring. To compound the problem for artists, the Copyright Act does not contain a corresponding provision granting the original artist the right to benefit from the exploitation of their work where people have taken advantage of section 65.

Arts Law believes that this situation is unfair on artists who produce works for public display, especially considering the low median income Australian artists derive from their work.

Further, the section 65 exception probably does not accord with the World Trade Organisation’s TRIPS Agreement, to which Australia became a signatory in 1995. The TRIPS agreement outlines minimum levels of intellectual property protection for member countries. Under Article 13, any limitations or exceptions put on the exclusive rights of copyright rights holders should not conflict with “a normal exploitation of the work,” should be confined to “certain special cases” and should not “unreasonably prejudice the legitimate interests of the right holder.” Arts Law believes that the section 65 exception conflicts with the normal exploitation rights of the artist by allowing others to freely exploit their work.

The negative impact of the section 65 exception on sculptors and producers of works of artistic craftsmanship may prove a disincentive to artists to produce works for public display. Indigenous artists may be especially discouraged from displaying their works in public as any unauthorised reproduction of the work could cause irreparable cultural harm.

In some circumstances when the section 65 exception could apply to a sculpture or work of artistic craftsmanship, there may be contractual ways that an artist can try to ensure that their rights are respected. Obviously, this is not possible when a work is displayed outdoors in an easily accessible area but where a work is permanently displayed in a gallery, a gallery can place a condition of entry to its premises restraining the public from taking photographs for commercial purposes. The problem with this approach to circumventing the section 65 exception, is that most often artists do not have the sufficient bargaining power to insist that a gallery or museum prohibit unauthorised commercial photography of their work, and even where this condition is imposed, it is up to the gallery to enforce the contractual condition and they may or may not do so. As such, even displaying works in galleries or museums may not provide any greater protection to artists that are subject to the section 65 exception.

Uncertainty in the application of the section 65 exception

In addition to the unfair impact section 65 has on artists, there is also a degree of uncertainty as to what the section applies to, and how it applies.

While the provision applies to the actual works displayed in public, it may not apply to any underlying design in the work.  For example, a sculpture may fall within the section 65 exception, but the drawing on which it is based may not. Therefore, taking a photo of the sculpture would not infringe the artist’s copyright in the sculpture, but would infringe the copyright in the drawing, provided there is sufficient objective similarity between the drawing and the sculpture.

This may lead to a bizarre situation where artists may only be able to benefit from the exploitation of their work if the work is based on design drawings. Artists who create their works spontaneously would be at a clear disadvantage here.

Uncertainty also surrounds the application of the section 65 exception, and corresponding section 68, in an online context. Section 68 of the Copyright Act provides that copyright will not be infringed when a two-dimensional reproduction exempt under section 65, such as a photograph of a sculpture, is published.

Under the Copyright Act, a work has been ‘published’ only if reproductions of the work have been offered to the public, for sale or otherwise. As noted earlier, a ‘reproduction’ may include conversion into digital form, for instance where a photograph taken by a digital camera is converted to a jpeg file, or similar digital format. Uploading the jpeg onto a website may well constitute offering the work to the public, and therefore a publication of the work.

However, the recent Copyright Amendment (Digital Agenda) Act 2000 granted copyright owners the exclusive right to communicate their work to the public, including making the work available online. The right to make works available online was described in the explanatory memorandum of the amendment as a new right, and therefore may not have been included in the previous definition of ‘publication.’

If this interpretation is relied on, section 68 does not specifically permit communication to the public of non-infringing reproductions made under section 65. Making such reproductions available online would therefore infringe the artist’s copyright in a public artwork. While this may benefit the artist by affording copyright protection in an online context, the apparent conflict between section 68 and the right to communicate work to the public creates confusion, and the correct approach needs to be clarified.

ng under the application of the section 65 exception is whether it now includes two-dimensional public artwork. In 2003, the definition of “artistic work” in the Copyright Act was amended to include works of artistic craftsmanship. The amendment was not aimed at section 65, however the result may well mean that section 65 now applies to two-dimensional public artwork. For example, prior to the 2003 amendment, taking a photograph of a painting on public display would infringe the artist’s copyright. After the amendment, it is unclear if a two-dimensional painting may be treated the same as a three-dimensional sculpture, and therefore taking a photograph of the painting would not infringe the artist’s copyright.

Proposals for reform

These difficulties and uncertainties have prompted widespread support for reform in this area of copyright law. The Australian Copyright Council, the Visual Artists’ Collection Society, the National Association of Visual Arts and the Arts Law Centre of Australia all support the removal of the section 65 exception from the Copyright Act.

Arts Law proposes that both sections 65 and 68 of the Copyright Act should be removed and replaced with a limited fair dealing exception allowing for non-commercial reproductions of public artwork. If these proposals are not possible, Arts Law believes section 65 should be amended to specifically exclude reproductions of public artwork made or used for commercial purposes.

These proposals retain the original rationale behind the section 65 exception, while protecting the interests of artists by preventing unauthorised commercial exploitation of their work.

Arts Law will be providing a submission to the Commonwealth Attorney General on these proposals shortly. We will also make this submission available on our website.

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