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  • Level: GCSE
  • Subject: ICT
  • Word count: 3584

Critically evaluate the extent to which it can be said that copyright law gives adequate and appropriate protection to contemporary works of art?

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Introduction

Intellectual Property Law Assessed Essay Student No: 001813779 Question 1. Critically evaluate the extent to which it can be said that copyright law gives adequate and appropriate protection to contemporary works of art? In this essay there are certain questions that need to be resolved in order to completely consider the protection to contemporary works of art under copyright law. In general it will be necessary to consider what exactly contemporary art is in order to understand the extent of the protection, and whether this is reasonable, or is there grounds for reform of the law? Perhaps the law is too strict in this area of litigation, or on the contrary is may be too easy to gain copyright for something that is considered a form of contemporary art? Looking back at the question, by saying to what extent does the law provide adequate and appropriate protection to contemporary works of art, there is an immediate suggestion that there is in fact a problem with the law. How far will the courts go in order to protect so-called contemporary art? In order for a contemporary art form to be considered for copyright there are certain statutory and common law obligations that need to be fulfilled. Firstly it is section 4 (1) of the Copyright, Designs and Patents Act 1988 that defines 'artistic work' as meaning: (a) a graphic work, photograph, sculpture, or collage. IRRESPECTIVE OF ARTISTIC QUALITY (b) a work of architecture being a model for a building, or (c) a work of artistic craftsmanship What is important in the first category is that copyright exists, irrespective of artistic quality. With regards to the extent to which copyright gives protection to contemporary artwork this is very positive for new artists seeking to obtain copyright. So if the courts are satisfied that a contemporary piece of art work falls under section 4 1 (a) ...read more.

Middle

It is also the way that the judges are interpreting these statutes that will determine the extent of the protection. This seems to be at the depth of the problem, trying to define art for the purposes of copyright and the way that judges interpret the CDPA of 1988. A purely fictitious example would be whether to give copyright to an upside down placed table? Using the CDPA of 1988 the judges have a choice of a taking a very literal meaning of the words or rather to be very flexible in interpreting what an upside down table could be? In this example there are several other things that must be considered if the court is to recognise an upside down table as a piece of artistic work contrary to Section 4. First of all there has to be some kind of originality for the piece of work to be considered for copyright. Also that copyright should be allowed as to protect the interests of the copyright owner. Or simply summed up in the words of Justice Peterson in University of London Pres Ltd v University Tutorial Press Ltd, where he said '...there remains the rough practical test that what is worth copying is prime facie worth copying'4 However, again this brings us immediately back to the question of what exactly is worth copying? I suppose it is at the core of this question, evaluating the extent that copyright law gives adequate protection to contemporary art, is both the extent and ultimately the coverage made in Section 4 of CDPA 1988. Followed by the way the judges interpret this statute, together with perhaps their opinions and that of professionals in the area of contemporary art. Although that we know in a court of law, any emotive feelings or biased opinion should be eradicated, it seems with regards to determining what contemporary art is and whether it should gain copyright, this is something that is ultimately required. ...read more.

Conclusion

What should be rewarded is a combination of the both, the mental application and the labour. A work that requires purely skill in its execution should not be better protected that one which is created by a conception of the mind. It seems that we are being drawn into numerous tests for the subsistence of copyright, and it seems to be undermining true copyright law. With this is mind it seems that perhaps contemporary artists are not getting the required adequate and appropriate protection desired. So what happens when a contemporary artist successfully gains copyright protection? After fulfilling all the necessary common law and statutory criteria, does the artist gain adequate protection over his or her work? Under Section 16 (1) if the CDPA of 1988 copyright protection gives exclusive rights to an author, artist etc to: (a) Copy the work (b) Issues copies of a work to the public, or publishing it. (c) Performing, showing or playing a work in public (d) Broadcasting a work or including it in a cable programme service (e) Adapting a work or doing any of the above acts in relation to an adaptation of it. If another artist does any of the following then he or she will be in primary infringement of the work. The statutory provision above seems to cover every possible eventuality and once an artist has gained copyright protection he or she will have adequate and appropriate protection. Therefore it seems the difficulty for new artists is actually gaining the protection in the first place, the question to whether it is adequate is quite simply yes. The real problem as I have mentioned before is that some artists are not getting the deserved protection in the first place, because of the harsh and stringent criteria that needs to be fulfilled. Perhaps what is needed is a reform of the statute in order to cover every possible new artistic movement and work, but at the same time it should not be so relaxed as to allow worthless, uncreative work to gain protection. ...read more.

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