What is Art? - Southwestern Law School

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116 J. INT’L MEDIA &ENTERTAINMENT LAW VOL. 4,NO. 2copyright in the common law world. 15 The first such law was enactedin 1709/10 by the English Parliament, commonly known as the Statuteof Anne, 16 and was soon emulated in other countries. 17Visual artists 18 subsequently lobbied governments to include theirworks in copyright laws, which initially protected recognised artforms—drawings, paintings, prints, sculpture, architecture—againstcopying and publishing without the artist’s prior consent; and to doso irrespective of artistic content or quality (a subject to which we returnlater). Over the last hundred years or so, artists have developedmany new and radically different forms of art—reaching far beyondthe traditional forms recognised at the end of the 19th century. Duringthis dramatic period of artistic innovation, copyright legislation hasbeen very slow to respond in recognising such new art media and practice(a subject to which we also return later).However, over the last century copyright legislation has kept betterpace with the development of new technology and processes for reproducingand publishing copies of artworks. Legislative changes weremade to outlaw copying and dissemination of copyright works throughunauthorised audio/visual recording, physical copying by analogueor digital means and physical or digital distribution thereof. Digitaldistribution, especially the development of online sharing and storagemethods, is an area where the law has struggled to keep pace. Cloudcomputing, where personal data is stored across a network of servers,is a recent lawful development of methods used by illegal file sharingnetworks, facilitating interaction between users who wish to share copyrightmaterial across a vast network of individual computer systems.In recent years, major television broadcasters have established ondemandservices for their viewers that operate in a similar way to You-Tube 19 ; or have a YouTube channel where current programmes arelawfully available on-demand for no fee, and with targeted webspecificequivalents of the broadcast advertisements: a celestial juke-15. It is known as le droit d’auteur in French, diritto d’autore in Italian, and derechosde autor in Spanish.16. The Copyright Act 1709 gave authors the exclusive right to reproduce theirworks for 14 years. See http://www.copyrighthistory.com/anne.html17. This includes the Copyright Clause in the U.S. Constitution “The Congressshall have Power . . . To promote the Progress of Science and useful Arts, by securingfor limited Times to Authors and Inventors the exclusive Right to their respectiveWritings and Discoveries.” (U.S. CONST., art. I, § 8, cl. 8); and the Copyright Act1790, 1 Stat. at Large 124 (1790).18. The Engraving Copyright Act 1734 was enacted in Britain; sometimes calledHogarth’s Act after the popular artist who lobbied for this law. William Hogarth(1697–1764) was an English painter, printmaker, illustrator and satirical cartoonist.19. Such as the BBC iPlayer.
WHAT IS ART? 117box. The concept of the celestial jukebox is exemplified by Spotify:rather than delivering a music file for retention by the subscriber (aswith iTunes), material is streamed on demand to the user—literally,a jukebox via satellite transmission.F. International ReciprocityIn 1886, at the height of the Industrial Revolution, developed nationspromulgated the Berne Convention. 20 This seminal internationalagreement (and its subsequent revisions throughout the 20th century)addressed two key problems relating to the worldwide enforcementof copyright: each signatory country’s copyright legislation was differentto the others, and was not enforceable beyond its own jurisdictionalboundaries. Signatories undertook to amend their domestic legislation: toprovide minimum standards for domestic/national copyright law; and torecognize and enforce the copyright works of authors from other signatorycountries, as they did for their own authors. The Berne Convention’sinternational harmonisation and reciprocal enforcement of copyrightlaws provided a model for subsequent international intellectual propertytreaties throughout the 20th century, to date. 21However, international agreements encounter common language andtranslation issues, especially when seeking to describe or define art.Diplomatic compromises and concessions are made to achieve agreement,often producing bland or ambiguous treaty provisions. Internationalagreements concerning copyright generally permit each signatorycountry itself to interpret and/or define any legal meaning of art withinits own national legislation. For example, the Berne Convention initiallydescribes “artistic works” as follows: “every production in the artisticdomain, whatever may be the mode or form of its expression”; thencontinues by specifying an inclusionary list of art forms: “such asworks of drawing, painting, architecture, sculpture, engraving and lithography;photographic works to which are assimilated works expressedby a process analogous to photography; works of applied20. The Berne Convention for the Protection of Literary and Artistic Works (1886)(hereinafter “Berne Convention”), http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html The UK joined the Berne Union in 1887, the U.S. in 1989; by 2011there were 164 member countries. See also http://www.wipo.int/treaties/en/ip/berne/.21. See Universal Copyright Convention (1952), http://www.wipo.int/wipolex/en/other_treaties/text.jsp?file_id=172836; Universal Copyright Convention (1971),http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=201.html; Agreement on Trade-Related Aspects of Intellectual PropertyRights (TRIPS) (1994), http://www.wto.org/english/docs_e/legal_e/27-trips.pdf; andthe World Intellectual Property Organization (WIPO), Copyright Treaty (Dec. 20,1996), www.wipo.int/treaties/en/ip/wct/trtdocs_wo033.html.
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