emphasise how boring life would be without images from our built
environment, this blog posting contains no pictures of buildings.
|Map by King of Hearts and others, licensed CC BY-SA.|
This raises the question: why should a building be subject to copyright in the first place? Without doubt architects are usually skilled artists and designers, and it is clearly fair and reasonable that their drawings should be protected in the same way as other artistic works. But why shouldn't the element of expression of their ideas (and thus copyright) be limited just to the drawings alone? It is undoubtedly true that many buildings are beautiful objects in their own right, but so are some cars or clothes or culinary dishes, but we don't feel the need to protect these things through copyright.
Unlike other forms of the traditional copyright works (literary, dramatic, musical and artistic), and despite a passing mention in Article 5(3)(h) covering exceptions to the reproduction right, a building cannot be subject to the majority of the specific provisions of the InfoSoc Directive (2001/29/EC) such as the communication right, the making available right or the distribution right. So that immediately makes a building a special case, outside the general direction of travel of copyright reform which is largely concerned with ensuring that copyright law reflects current and emerging technological changes. Furthermore because a building per se cannot be published, distributed or translated, it is effectively a continuous public performance or broadcast of the architect's creativity, open to everyone at all times. There is no need for a decision about whether a new public is being communicated to, as per Svensson. And even if the argument for according copyright to a building is persuasive, should this really extend to preventing the making of visual copies of it? After all, such images in no way affect the economic or moral rights of the architect any more than the building itself does. A photograph of a building does not compete with either the building itself or with the architect's drawings, because it does not do serve the same purpose. Such images will, in the main, only serve to enhance the reputation and renown of the architect. Perhaps if copyright in a building was similar to design right, in that what was restricted was the creation of an actual real three dimensional full-scale copy of the building, that would make sense, since the architect might be expected to earn an additional fee for any second edifice. One also has to consider how buildings come about. Architects are usually commissioned to do the job; unlike artists or sculptors, their creativity is only allowed to see the light of day because of the patronage of developers. To use the American terminology, their work is for hire. The end product of their job is not a work of artistic craftsmanship, as it is not made by their own skilled hands, and the underlying purpose of a building is utilitarian. But perhaps most significantly, the design of a modern iconic building, such as the Shard in London or the Burj Al Arab in Dubai, is not the work of one person, but huge teams of engineers, architects and other specialists. While the outline concept may originate from the mind of a single individual, the execution is way beyond the capability of any one person. This strengthens my view that allowing copyright in a finished building is absurd because it stretches the idea of 'author' beyond rationality.
And there is the entirely separate, practical argument that as far as non-commercial photography etc is concerned, copyright in the physical building is virtually unenforceable due to today's ubiquity of cameras and smart phones. While the average person might think twice about downloading a pirated piece of music, it is unrealistic to believe they will ever see the moral case for not taking a selfie with the London Olympic Stadium or the Louvre in the background, without first seeking permission from the architect.
For Eleonora's take on the subject, see this IPKat posting.