Tuesday, December 04, 2007

Update on Calatrava

On October 29th, I did a blog on a suit brought by the great engineer/architect Santiago Caltrava over alterations and additions to a bridge (nicknamed the Zubi Zuri) he did in Bilbao over the River Ria. According to a story in Expatica Newsletters (here), the Spanish court has ruled in defendant's favor, albeit with some interesting holdings. Here is an excerpt from the article:

Pending the result of an appeal (which Calatrava's counsel promptly announced after the ruling), there will be no demolition of Isozaki's recently opened pedestrian walkway, which connects with Calatrava's bridge, nor payment of the €3 million indemnity demanded by the architect, who received a total of 500,000 Swiss francs (some € 320,000 at present rates) for the Zubi Zuri. The ruling does, at least, censure the municipality for not having made "the least effort" to employ Calatrava for the walkway extension, or to obtain his authorization, deeming the behavior as "incomprehensible." The judge has also accepted Calatrava's contention that the work has been modified. "There has been an appreciable alteration of the work," he says, "which changes its unmistakable personality," adding that "it has ceased to be a self-contained work." The sentence also notes that the walkway is protected by the Intellectual Property Law, and that the ruling would have been favorable to Calatrava had only private interests been involved. The judge concludes that, given that the walkway is essential for fluid pedestrian movement, the public interest must prevail over the private - a point that was much repeated in the trial by the lawyers for the city council and the two construction firms. "The alteration has occurred; but the right to the integrity of the work is not violated, the author being obliged to bear it in the interest of the public served by the bridge," says the ruling.
It is heartening to see that despite endless rhetoric from Europe about copyright being a natural right, that authors' rights are inviolate, that moral rights are essential to preserve the integrity of works and authors' right to dignity, that copyright may even be a fundamental human right, blah blah blah, European courts can be every bit as pragmatic as their crass U.S. counterparts when the facts are right: yes there is this thing copyright, yes it was violated, but hey there are other factors which can trump it, namely the public interest. Now, if we could only get the concept of the public to include people and not just things they walk across, we would be on a real bridge to progress.


JP said...

Hola, en Colombia, en principio, la situación tendria otras problematicas ya que nuestra legislación de derecho de autor, dentro del capitulo de limitaciones y excepciones al derecho de autor establece que “El autor de un proyecto arquitectónico no podrá impedir que el propietario introduzca modificaciones en él, pero tendrá la facultad de prohibir que su nombre sea asociado a la obra alterada”

Cordial saludo,

JP. Bogotá, Colombia.

Andy Ramos (www.interiuris.com/blog) said...

First of all, congratulations for your blog, I find every single post extremely interesting.

My name is Andy Ramos, I am an Entertainment Attorney from Spain, but I have studied and worked in the U.S. as well.

I had the chance to read this resolution and, although I agree with the result, I don't think the judge reasoned it properly under the Spanish Laws.

As you pointed out, moral rights are quite a big thing in Europe, and, in some ways, they are not fully understood abroad. Movies, music, literature are seen here not as an entertainment product but as a cultural thing. These works are seen as a fixation of the personality of the author (actually, instead of using the word "copyright", we use "author's rights"), so that's the reason why the legislator decided to protect the work against some actions that could affect the personality of the author.

Specifically, "droit moral" includes in Spain paternity right, integrity right, right to decide how the work will be published, the right to get access to the unique copy of the work, and the right to take the work away from the marketplace. These rights can sound quite odd from an American perspective, but, as I explained before, original works are seen here as a fixation of an author's personality.

Having said that, I agree with the resolution, but disagree with the reasoning. In Spain, authors have certain exclusive rights, rights that are limited not with a open formula like the U.S. Fair Use, but with a more limited scenario closer to the limitations provided by the Berne Convention. Some of these limitations (or exceptions to author's exclusive rights) are: private copy, citation, necessary and temporary reproduction, parody, etc. Unfortunately, there is not such limitations for public interest or similar.

There is no provision in the Spanish Copyright Act that says that in any or certain cases, public interest shall prevail from private interest, even when it could be reasonable to believe so.

Accordingly, this controversial sentence has been criticized by many Spaniard scholars and bloggers (including myself) because of his weak reasoning.

Again, I don't think the people of Bilbao should suffer the consequences of a defective (but nice) bridge, but the judge should have been more precise and held, for example, that a bridge itself is not protected under the Spanish copyright laws (there is a controversy in Spain about these kind of works providing that the law expressly protects models, drafts, etc. but the legislator -voluntarily or involuntarily- didn't include buildings themselves).

I will let you know the holding of the Court of Appeals.

Congrats again for your excellent blog.

Andy Ramos

William Patry said...

Thanks, so much Andy for your remarks and very informative comments. When the U.S. was debating joining the Berne Convention, droit moral was a big deal since we don't have them. One of the things Congress was curious about is how, in Europe, do droit moral actually get resolved -- versus the rhetoric about their importance. Moreover, when the U.S. extended protection to works of architecture, we deliberately excluded them from the category of pictorial, graphic, and sculpture works, and therefore denied them droit moral.

The Calatrava case is interesting to me both because of my great love for his work, and on this point. Thanks for offering to keep us posted on the appeal.

Iban said...

I also agre with the decision but I disagree with the reasoning.

There is always a debate between Public and Private Law in connection with the Copyright law in regard to its social function.

In recent years, we have been living a kind of "invasion" of the copyright by the public or general interests, in order to justify some limitations to authors rights. This case is a clear example of this "invasion".

In Spain, this intervention of the "public interest" is, somehow, justified by the article 33.2 of the Spanish Constitution which gives to the private property, including the intellectual property, an indefinite social function (limited by law).

In this case the social function of the bridge is quite clear. Actually, although I live in Madrid, I am from Bilbao and I have had the opportunity of visiting the controversial bridge. My opinion is that removing the crossing from the bridge is not acceptable. I understand, as the judge does, that the public interest must prevail in this case, but this decision has lost a very good opportunity to create a precendent by deeply justifing this priority of the general interest over the author`s rights.

Congrats for your excellent blog!

William Patry said...

Iban, thanks so much for your posting; it is incredibly useful to have the insight of someone from Bilbao and who knows copyright law. The dispute with Calatrava, whose work I love and find inspiring and breathtakingly beautiful, presents quite starkly the conflict between public and private interests that you talk about; of course, with a special twist, in the context of what is public art. That, is, we are not talking about one artist making changes to a first artist's work and then displaying the changed work in a private art gallery.Instead, we have something that was commissioned as and can only function as a public work, and one that has a functional character as well.

Calatrava is the precise example used by name by the U.S. Congress in 1990 in deciding not to extend moral rights to works of architecture; it isn't that Congress failed to appreciate Caltatrava's art, to the contrary he was deeply admired. Rather, there was a realization that a Bilbao like dispute was inevitable.

But since moral rights do exist in Spain, the actual dispute when it came had to be resolved differently. Lacking any expertise in Spanish law, it is quite helpful to hear from those who do.