Copyright woes: a tale of two cities

What’s the difference between the Eiffel Tower in Paris and the Melbourne Arts Centre Spire in Australia?

Aside from the iconic status, romantic connotations, historical significance and about 196 metres in height, perhaps the most unexpected difference is the fact that you can take a photograph of the Melbourne Arts Centre at night without infringing copyright, but the same cannot be said for the Parisian icon. According to the official website of the Société d’Exploitation de la Aerial view of ParisTour Eiffel, although the Eiffel Tower, built in 1889, is no longer protected by copyright, the illumination of the tower at night is “subject to authors’ rights”, which are infringed by night

Why the difference?

Copyright law is national. When you make a copy of a work, whether you infringe copyright depends on the law of the country where you make the copy. Buildings are regarded as artistic works for the purpose of both French and Australian copyright law. To take a photo of the illuminated Eiffel Tower, the photographer would have to be in France (leaving satellite images out of the equation) and the digital photo recorded on the camera would be a copy made in France. French copyright law would apply, and unlike the law of most European countries, it does not permit the taking of photographs of buildings in public places without the consent of the owner of copyright in the building. Therefore the act of taking a photo of the tower is a breach of copyright.

If the photographer of the illuminated Eiffel Tower flies to Australia with the camera, and on arrival uses the digital image to make copies of the photograph, those copies will be made in Australia, and Australian law will apply. In this case, there would be no breach of copyright.

The Australian Copyright Act

In Australia, s 66 of the Copyright Act states that the copyright in a building is not infringed by the making of a painting, drawing, engraving or photograph of the building, or by the inclusion of the building in a film or in a television broadcast. Section 68 permits the publication of the images protected by section 66. Without s 66, it would be difficult to take an outdoor photograph in a built up area without risking infringement of copyright.

Sections 66 and 68 only apply to buildings, not to artistic works on the surface of the buildings (sculptures in public places are treated like buildings by section 65 of the Copyright Act). For this reason, it is a bad idea to use photographs of Melbourne’s vibrant street art for commercial purposes without the consent of the artist.

However, s 67 of the Copyright Act permits the inclusion of a reproduction of any type of indoor or outdoor artistic work in a film or television broadcast, provided the reproduction is incidental to the main subject of the film or broadcast.

Section 73 of the Copyright Act states that the copyright in a building (or the architectural plans for it), is not infringed by a reconstruction of the building. If the Melbourne Arts Centre Spire should burn down (and it has caught fire in the past as a result of a firework malfunction!) it could be rebuilt without fear of copyright infringement, even if the State of Victoria did not own copyright in it under s 176 of the Copyright Act as a work made under the direction of the Crown.

2D vs 3D

The protection for images of buildings is restricted to two dimensional images. It is an infringement of copyright to make a three dimensional model of a building that is within copyright without the permission of the owner of the copyright. This leads to some interesting issues.

Would a cake in the shape of the Melbourne Arts Centre infringe copyright in the building? Hopefully the legal adage de minimus non curat lex – the law is not concerned with trifles – would be applied to other sweet treats.

If you have any questions relating to copyright, please contact Annette Rubinstein.

Annette Rubinstein, Former POF Attorney

BA(Hons) LLB(Hons)

Annette has worked in the Legal Policy and Research Department of the Victorian Attorney General’s Department and has practised as a barrister.