Happy New Year, Praise the Aussies

I was doing research yesterday on the copyright law in Anguilla. I went to Google Scholar ("Stand on the Shoulders of Giants") and typed in copyright. Up came a few entries, including one for an article by an Australian copyright professor, Matthew Rimmer, that I had been wanting to read: "The Garden of Australian Dreams: The Moral Rights of Landscape Architects." (Here is a convenient link to it). There are a number of excellent Australian copyright scholars and IP blogs, beginning with the amazing Kim Weatherall, who has her own blog plus participating in the LawFont blog. Kathy Bowrey has written many wonderful articles. Warwick Rothnie also has an insightful blog. I am sure there are many others and I don't mean to slight them by not mentioning them.

Professor Rimmer's piece is a masterful look at difficult legal, social, and cultural issues raised public art. He also has an excellent comparative analysis of U.S. cases, including Phillips v. Pembroke Real Estate Inc., a dispute that bounced around betweeen the state and federal courts in Boston. In drafting the 1990 act extending protection to works of architecture, Congress faced somew difficult line drawing. An early version of the legislation would have protected not just architectural works, but also "or other three-dimensional structures," As a result of the hearing, the phrase was deleted, however. The purpose of the phrase had been to cover cases where architectural works were embodied in innovative structures that defy easy classification. But as the Judiciary Committee report noted, the phrase could also be interpreted as covering interstate highway bridges, cloverleafs, canals, dams, and pedestrian walkways. While there was little doubt that bridges designed by Frank Lloyd Wright, Robert Maillart, Christian Menn, and others are original, the Committee made a policy decision to exclude all such works at that time, since protection is not mandated by the Berne Convention. This intention was made clear by the deletion of the phrase “or other three-dimensional structures” from the definition and by legislative report language.

As enacted, therefore, the legislation protects only the design of “buildings,” the meaning of which is more important than it had been under H.R. 3990. The term obviously covers structures such as houses, apartments, office buildings, churches, and the like. It also encompasses structures that are used by humans but not inhabited, such as belvederes, pergolas, gazebos, and garden pavilions, as well as the difficult-to-classify works that prompted the “and other three dimensional structures” language initially. Landscape architecture, golf courses, and structures not intended for use by humans are not protected. But that doesn't appear to be the case in Australia, which moreover accords architects moral rights along the lines of our 104A. But as Professor Rimmer details, those "rights" are essntially a mere right to be consulted, not to prevent changes. Even that right seems to be more honored in the breach though, and in the case of public art, the changes can tangled up in a toxic mix of politics and social conflict. His article has a number of fascinating illustrations of the point and is a great read.