Copyright and Industrial Objects: Aesthetic Considerations and Policy Discriminations
SAGE Handbook of Intellectual Property (Matthew David & Debora Halbert, eds.) 2014, Forthcoming
Queen Mary School of Law Legal Studies Research Paper No. 168/2014.
34 Pages Posted: 23 Jan 2014
Date Written: January 21, 2014
Abstract
Past jurisprudence, in the major European Union Member States as well as in the United States, shows that copyright law equates the creations of Dan Brown, Roy Orbison, and Margaret Mitchell with more pedestrian compositions such as fertilizer labels, consumer guides, and shopping catalogues. Although copyright law does employ certain tools, including the idea-expression dichotomy, and the criterion of originality (in common law countries) or personality (in civil law countries) to distinguish between protectable and non-protectable elements, it eschews discourses on the merit of the creation, except in the case of industrially manufactured objects expressed in three-dimensional forms.
In respect of the latter, one perceives a struggle by courts and legislators in viewing such objects without indulging in qualitative considerations based on merit, worthiness, functionality and aestheticism. This occurs irrespective of the mode of production, or the nature of the substrate manifesting the form, or the purpose of the creator, or the value, or the final contextual use, of the product. We can appreciate the discrimination by employing a comparative law approach, and viewing legal policies and decisions in a historical light within the European Union. First, there has been much international and national ambivalence concerning the proper intellectual property regime to house industrial objects. Secondly, this ambivalence has had a domino effect in that different policies have sprouted in the different legal systems as to the proper treatment of manufactured objects within copyright law itself. Thirdly, in order to pigeonhole industrially manufactured objects into one or the other legal system, judges and tribunals have employed artificial legal tests, including obfuscatory interpretations within legally constructed classifications of subject matter, arbitrary criteria of protection, and subjective considerations of aestheticism and functionalism. What emerges is a landscape of varying legal tools employed by the legislators and courts to drive several overwhelmingly historical policies. One was that copyright law was the proper legal construct for "artistic works". Within this classification, some, but not all, industrial objects could be protected. The second was that the proper vehicle of protection for "industrial objects" was a separate species of law, which could be industrial copyright, unregistered design law or registered design law.
It is not easy to accept the illogical, and often bewildering, interpretations of art and function which are used to classify manufactured objects, in order to implement these policies. The doubt that this is the right path is reinforced by two landmark decisions in 2011 handed down by the Court of Justice of the European Union (Flos SpA v Semararo), and by the UK Supreme Court (Lucasfilm v Ainsworth), in relation to industrially manufactured objects. The essay concludes that the correct approach is that of the Court of Justice which adopts the traditional French approach of non-discrimination between "pure art" and "industrial art". This approach further coincides with the German approach which adopts a more holistic appreciation of the artifact, by considering how it functions within society. Finally, the non-discriminatory treatment is very much in accordance with current societal perceptions of the role and meaning of an industrial object.
This essay is part of a multi-authored collection that analyses the socio-legal context of intellectual property law.
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