By CHOLA MUSONDA MUSATWE and COLLINS NKUMBWA
ABSTRACT
The concept of originality however, discloses that it may be difficult for certain artistic works of architecture to achieve copyright protection. This study appraises the concept of copyright ownership in Zambia of architectural works, which is very clear in itself but not clearly defined in the law, hence the lack of proper enforcement, understanding, knowledge and awareness in relation to the protection of the rights and interests of creators of architectural works. The objective of this study is to explore how effective the Zambian copyright law regime is with regard to the protection of the rights and interests of creators of architectural works against copyright infringement. This study goes on to look at both domestic and international laws governing the rights and interests of creators of architectural works against copyright infringement.
Key words or phrases – Intellectual Property Law, Copyright, Architectural Works,
Introduction
In today’s modern world, intellectual property is becoming the core agenda of fostering the global economic development.1 The progress and well-being of humanity rest on its capacity to create and invent new works in the areas of technology and culture, and as such it is felt that the protection of new creations encourages the commitment of additional resources for further innovation.2 In this respect different legislations have been enacted to ensure the protection of architectural works against unauthorized copying. Basically these laws enable an architect to sue for infringement when a subsequent building is copied from his or her copyrighted building. Despite the legislations’ good intentions, they provide inadequate guidance for determining exactly which architectural works should be protected.3 It is for this reason that most architectural works receive limited protection from these laws against copyright infringement. This research will analyze the impact of law on architecture and architectural practices in Zambia, in relation to the interests and rights of architects.
Background
Architecture is deeply merged into the fabric of human history and culture and its influence cannot be underestimated.4 Born of the essential need for shelter, the art of designing and constructing buildings has created countless inspiring and commanding structures across the world.5 From the
creation of iconic works such as the ancient pyramids of Egypt among many others, architecture influences our daily lives and our environment.6 Winston Churchill once said that “We shape our buildings, thereafter they shape us.”7 It is no surprise, then, that architecture has provoked and continues to provoke interesting and often heated debate specifically in relation to the protection of architecture as a creative work and the rights of architects in their creations.8 Copyright law and ownership is an important but not fully apprehended concept in the architectural discipline in Zambia and across the world.
Architectural works were not always recognized as worthy of legal protection or any form of copyright protection until the Berne Convention of 1908 was revised, after which it was included in the field of literary and artistic works at an international level. 9 The Berne Convention is administered by the World Intellectual Property Organization (WIPO). 10 Thereafter several countries including Zambia modified their laws to conform to the provisions of the Berne Convention, with respect to copyright protection granted to works of architecture.11 However, the different legislations have distinct and specific provisions as to what type of architectural works can be protected. In Zambia the protection of architectural works through copyright against infringement and imitation is firmly established by the Copyright and Performance Rights Act 1994, Chapter 406 of the Laws of Zambia as amended by the Copyright and Performance Rights (Amendment) Act of 2010. This Act tries to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights.
These laws enable creators of architectural works to take action against any unauthorized copying as seen in the case of Hay v. Sloan.12In this case a builder sued another builder for copying the design of his building and constructing an identical house for the buyer. The court found infringement and granted an injunction to prevent further copying by the builder.13Similarly in the case of Johnson v. Jones 14 the plaintiff, Douglas Johnson, an architect, brought a suit of architectural infringement against the defendant’s alleging that his architectural drawings were altered and used without his permission in violation of the British Copyright Act.
Issues of infringement of architectural works requires an understanding of the protection of works when they are reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.18 Various studies have been conducted in the field of architecture on issues pertaining to the protection of the rights and interests of creators of architectural works in relation to infringement in Zambia and across the world. This part of the study will review available literature both locally and internationally, to find out the research gap and ways that can be of help in terms of contributing to the body of knowledge. Below are some of the views of the issue at hand.
Munsunka Silungwe,19 in his words has mentioned that the concept of copyright ownership of architectural works is very clear in itself but not clearly defined in the law.20 This basically entails that in as much as protection of architectural works is provided for under the law, it is difficult for creators of architectural works such as engineers and architects to understand the laws. This leads to the lack of knowledge to protect and enforce intellectual property rights in the event of any unauthorized copying of architectural works.
Based on the idea and expression dichotomy, it has been debated upon, that copyright law does not protect ideas, however it protects the expression of the ideas themselves.21 This principle of law was established by the courts in the classical case of University of London Press Ltd v University Tuitorial Press Ltd,22 among many other cases. It can then be said that the reasons why copyright law does not protect ideas is that, if the first person to produce a work based on an idea has a monopoly over it, then the spread of knowledge , invention and innovation would be greatly impeded.23 This reason is shared by Fishman, who states that if authors are allowed to obtain a monopoly over the ideas, the copyright law could end up discouraging new authorship and the progress knowledge.
Furthermore, according to Barret, 24 the law must ensure that the basic building blocks of expression (ideas, facts and elements that are standard or routine in connection with a given kind of work) remain in the public domain free from the copyright owner’s control, in order to ensure a continuing flow of new authorship in future. The copyright doctrine assures the authors, the right
to their original expression but encourages others to build freely upon the ideas and information conveyed by a work.25
Phebe Mann and Janice Denoncourt, argued that the principle established by the idea and expression dichotomy can be problematic for artistic works of architecture.26 Whilst copyright law protects original architectural drawings and plans as literary works, it does not protect the ideas and concepts embodied in them.27 An architect or engineer, when creating an artistic architectural work, may embody a number of ideas, including his own skill, labour and effort, combined in a particular way. However, the decision in kenrick & Co v Lawrence & Co,28 suggests that the more general the idea expressed in the artistic architectural work, the more difficult it will be to establish infringement.29 Therefore, it can be argued that in this way, the development of architectural ideas and concepts is encouraged without restriction.30 Since copyright only subsists in the form of the expression of ideas, the underlying policy is to prevent the monopoly of the common stock of architectural ideas.31
David E. Shipley, 32 argued that the common understanding of copy is a reproduction or duplication that comes so near to the original as to give every person seeing it the idea created by the original. An architect’s plans represent how the completed structure will appear. Conversely, the structure gives the person seeing it the idea created by the plans, a client will recognize the
structure as the three-dimensional reproduction of the plans.33 Furthermore, the copyright act grants the copyright owner the exclusive right to reproduce his work in copies, which, as defined in the act, include not only two-dimensional plans and drawings, but also completed structures derived from those plans and drawings. From the aforesaid it is quite clear that copyright prohibits copying in any medium, and subject to its useful article limitations, however, no fundamental principles such as the idea and expression dichotomy are offended by ruling that plans are infringed when they are used.34 This infringement may be through the copying of the plans into a structure without authorization. Basically, this means that although architectural plans and other architectural works do not qualify for copyright protection, they do come within the subject matter addressed by the Copyright Act with regard to protection against any unauthorized copying.35 Elizabeth A. Brainard, 36 has argued that, three legal doctrines afford limited protection to architectural designs are copyright law, the design patent provisions of the patent Act, and the common law tort of unfair competition. The forgoing analysis suggests that the appropriate level of protection for architectural works depends on the particular form of copying involved. From the aforesaid it can be established that assessing the extent to which current law promotes progress in architecture requires an evaluation of the protection now available against each form of copying. Raphael Winick,37argued that Pre-Architectural Works Copyright Protection Act, case law firmly established that architectural plans, drawings, and models are subject to copyright. However three-
dimensional completed structures could not be copyrighted. The troubling result was that unauthorized construction of a building from copyrightable plans did not constitute infringement. This article illustrates that although architectural works such as plans are protected under the law, their unauthorized copying does not amount to infringement. It can be opined that the enforcement of the rights and interests of creators of architectural works in terms of infringement is still a thorny issue which needs to be addressed. Thus the law written in the statutes is contrary to the law in practice.
Intellectual Property Law
Intellectual property (IP) law is concerned with the legal rights of creative effort of the human intellect.39Basically intellectual property law deals with the creations of the human mind.40 It is also associated with the commercial reputation and goodwill of a business enterprise.41Intellectual Property rights are like any other property rights. They confer rights on the creators or owners of patents, trademarks or copyrighted works to benefit from their own work or investment in a creation.42 These Rights are outlined in Article 27 of the Universal Declaration of Human Rights, which provides for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions.43 Intellectual property law deters others from copying or taking unfair advantage of the work or reputation of another and provides remedies should this happen.44
Intellectual property rights are by their character international as they cover all geographical barriers. However, this may be subject to the law of each country for instance, protection of trademarks is territorial according to the Zambian courts. Thus although being abstract in nature, the subject matter of intellectual property is of universal application. 45 The importance of intellectual property was first recognized in the Paris Convention for the protection of industrial property (1883) and the Berne Convention for the protection of literary and artistic works (1886).46Intellectual property law is divided into two branches namely corporate and related rights and industrial property. Corporate and related rights are concerned with the protection of literary and artistic works.47 Industrial property deals with the protection of patents, trademarks, industrial designs, utility models and unfair competition.48 This research primarily focuses on the artistic field of corporate and related rights.
The first intellectual property office was established in Zambia in 1968 at the end of the federation of Rhodesia and Nyasaland under the Ministry of commerce Trade and industry.49 Prior to this, intellectual property matters were administered under the portfolio of the federation in Southern Rhodesia in Salisbury now Harare.50 The office continued to be under the Ministry of Commerce Trade and Industry as a department, Patents and Companies Registration Office (PACRO) until 1998 when it was renamed Patents and Companies Registration Agency (PACRA), when the Patents and Companies Registration Agency Act No. 15 of 2010 was enacted.51 At that time PACRA was mandated to administer five Acts namely, the Companies Act, Business Names Act,
Patents Act, Trademarks Act and Registered Industrial Designs Act.52 At that time matters of intellectual property were vested in two ministries namely, the Ministry of Commerce Trade and Industry and the Ministry of Information and Broadcasting.53 The registrar of companies and industrial property dealt with intellectual property issues whereas the registrar of copyright dealt with copyright issues under the Ministry of Information and Broadcasting.54 Prior to 2010, Zambia had no intellectual property policy.55This made it difficult to coordinate and monitor intellectual property activities in the country.56 In 2010, a policy was formulated and adopted. The policy aims at providing guidance and policy direction on matters related to intellectual property administration in Zambia. 57 This now relatively makes it easy for PACRA to administer Intellectual Property in Zambia.58
In 1994 the World Intellectual Property Organization (WIPO) general assembly passed a resolution by which the international bureau should be at the disposal of any state that expressly asks for their advice on matters of compatibility of its existing national intellectual property legislation not only with treaties administered by WIPO, however with other international norms and trends including the Trade Related Aspects of Intellectual Property Agreement (TRIPS).59 In 1995 during the WIPO general assembly, a new resolution on the subject matter was adopted.60 WIPO now recognizes that there is need for compatibility between the national intellectual property legislation and the international conventions and treaties.61
Copyright Law Copyright is a right granted for the protection of literacy, dramatic, musical and artistic works and other works resulting from the authors own intellectual creation.62 Basically Copyright is the right to stop the copying and distribution of different categories of work.63 The copyright system seeks to protect creative or intellectual effort by conferring exclusive rights on the owner in respect of the exploitation of a protected work.64The World’s first copyright statute on intellectual property was the Statute of Anne which was enacted in the United Kingdom in 1709.65
In Zambia the piece of legislation governing copyright and performance rights is the Copyright Act.66This Act is created to protect original literary, dramatic, musical and artistic works under which architectural works fall. In addition, the Copyright Act seeks to encourage the creation of art and culture by rewarding authors and artists with a set of exclusive rights. Section 8 of the Copyright Act provides for the categories of works in which copyright subsists.67 Generally a piece of work that does not fall in any categories of work mentioned in Section 8 of the Copyright Act cannot qualify as a copyright and may not be registered as such.68Copyright is automatic, it does not need to be registered and the only protection is that it has to be reduced in some permanent material form.69 This principle can be seen in the case of Hot FM v Changwe and YAR FM Limited.70 In this case the plaintiff , a radio broadcasting company , issued a writ out of the Commercial Registry endorsed with a claim for an injunction to restrain the first and second defendants jointly and severally whether by themselves , or by their servants or agents or otherwise from making any use of such or any copyright material consisting of news bulletins whatsoever, information as aforesaid or any part thereof for any purpose whatsoever.71 Basically this was a declaration that the copyright subsisting in the news bulletins aforesaid communicated by the first defendant to the second defendant were and are intellectual property belonging to and constitute confidential information being the property of the plaintiff’s. 72 The defendants denied the plaintiff’s claim and contended that the plaintiff was not the owner of the copyright material in the radio news programmes consisting of news bulletins and recordings of government, political and prominent personalities as alleged.73The first defendant also contended that he was not aware and had no reasonable grounds for suspecting either that copyright subsisted in such records, knowledge and information or that the plaintiff was the exclusive licensee thereof.74
The High Court held that the sound recordings and news stories transmitted by the first defendant to the second defendant were and are intellectual properties belonging to the plaintiff, because they were made and recorded for the plaintiff by its journalists and reporters including the first defendant in the course of their employment.75 Furthermore, the High Court held that the copyright in the sound recordings and news editions vested in the plaintiff.76 The High Court ruled that the plaintiff was entitled to damages from the second defendant occasioned by the defendant’s infringement of its intellectual property. 77According to Section 12 (1) of the Copyright Act, Copyright subsists in the authors’ works during the lifetime of the author and continues for a period of fifty years after the author’s death.78 The duration of copyright depends on the type of work in question. In Zambia, based on the provisions of Section 24(3) of the Copyright Act, moral rights are attached to the life of the author hence expire at the death of the author, however this is not the case in other jurisdictions such as the United Kingdom.79
An architectural work is the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings.80 Copyright also exists in the architect’s plans as drawings.81Works of architecture are provided for as a subcategory of artistic works listed under Section 2(d) of the Copyright Act.82However , copyright protection does not encompass general concepts or standard features. 83 The purpose of this is to filter out the unoriginal , unprotected elements that were not independently made by the inventor and that possesses no minimal degree of creativity.84 The protected elements of an architectural work include the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features such as common windows, doors, and other staple building components , which are instead ideas exempt from copyright protection.85 This still remains a thorny issue in the architectural realm in terms of the protection of architectural works against unauthorized copying.
To obtain copyright protection in architectural works, a work must be original i.e. the author must have used his own skill, and effort to create the work.86 This principle can be seen in the case of Interlego AG v Tyco Industries Inc, 87 were the courts held that originality is equated with the
degree of skill, labor and judgment that went into the creation of the work. Similarly originality entails that the work should not be copied but should originate from the author as established in the case of Ladbroke (Football) Ltd v William Hill (Football) Ltd.88 Not only must intellectual activity produce the right kind of work , but also the input must show a minimum standard of effort.89Artistic quality is not needed, however, works of architecture or models must have some artistic quality to qualify. The threshold is low i.e. a building or structure must demonstrate at least something apart from the common stock of ideas to demonstrate artistic quality. 90 In the case of Catnic Components Ltd Robert Stevenson v Hill & Smith Ltd,91 the court held that what is protected is the artistic work and not any ideas or information which it may be designed to convey. However, what is protected is the skill and labor devoted to making the artistic work itself, not the skill and labor devoted to developing some idea or invention communicated or depicted by the artistic work.
In contrast to other types of artistic work, there is no requirement that architectural works should be protected irrespective of artistic quality.92 This seems to suggest that, when deciding whether the subject matter qualifies as an architectural work, we should consider whether it is sufficiently artistic.93 While the courts have accepted that a work of artistic craftsmanship must, by its very nature , be sufficiently artistic to attract copyright , the position in relation to architectural works is less clear.94If buildings are protected only if they are artistic, it is unlikely that designs for things such as swimming pools would be protected.
The owner of a copyright work has the exclusive right to do certain specific acts in relation to that work.95 This entails that , the owner has the right to prevent others from doing those acts. 96 Therefore the owner of copyright in a protected work may use the work as he wishes, however not without regard to the legally recognized rights and interests of others and may exclude others from using it without his authorization.97 The owner can either grant a license of permission to a third party to perform those acts or bring an action for infringement against any unauthorized performance of those acts, and he can obtain remedies such as damages, an injunction or the right to delivery up of infringing copies.98Copyright is not a monopoly but merely a right to prevent others from copying.99 This is simply because it is possible for two people to come up with the same work as long as the work is created independently, it can be protected under copyright law even if it is a work similar to a work already in existence.100
It should not be assumed, however, that the Zambian copyright law does not only protect those works resulting from great creativity. Due to lack of such knowledge by creators of architectural works, there is need for proper and adequate awareness of copyright infringement of architectural works in Zambia. Basically from the time in memorial, the threshold for the protection of architectural works across the world, has always been limited, seeing that architectural works were not always recognized as worthy of legal protection or any form of copyright protection until the Berne Convention of 1908 was revised.
The Idea and Expression Dichotomy in Architectural Works
It has been greatly debated upon that copyright law does not protect the idea of a person per se but it protects the expression of ideas.101 The principle of idea and expression is provided for in Article 2 of the Berne Convention. The rationale behind the idea and expression dichotomy is that it would be absurd if copyright law was also to protect an idea. The boundary between the idea and expression is difficult to draw. It can then be said that the reasons why copyright law does not protect ideas is that, if the first person to produce a work based on an idea has monopoly over it, then the spread of knowledge, invention and innovation would be greatly impeded.102
Thus the expression of the idea encompasses the creativity involved in the arrangement of the work, choice of words, musical notes , colors and shape among other things. 103 Therefore, copyright law protects the owner of a copyrighted work against those people who take and use the form in which the original work was expressed by the author. A practical example is Pk Chishala, a Zambian musician who did not have monopoly in Kalindula songs, since the concept of such songs is an idea and hence not protected by copyright.104 As such, anyone else is free to sing a Kalindula song.105 However, singing a Kalindula song by taking a substantial part or parts from his songs will infringe on his copyright.106
The protection of the expression of ideas and not the idea itself by copyright is also provided for under Section 8(3) of the Copyright Act.107The concept of idea and expression was later reaffirmed in Article 9(1) of TRIPS.108 In the case of Designer Guild v Russell Williams,109 Lord Hoffman
made a distinction between expression and ideas. 110 He stated plainly that there can be no copyright in an idea which is merely in the head, which has not been expressed in copyrightable form as a literary, dramatic, musical or artistic work.111 Similarly in the classical case of University of London Press Ltd v University Tutorial press Ltd,112 Peterson J stated that for a work to be original it must not be copied from another work, that is, it should originate from the author. Therefore, copyright is not concerned with the originality of ideas but with the expression of thought.
Whilst copyright law protects original architectural works such as drawings and plans as literary works, it does not protect the ideas and concepts embodied in them.113The idea and expression dichotomy can be problematic for artistic works of architecture. An architect or engineer when creating an artistic architectural work, may embody a number of ideas, including his own skill labor and effort, combined in a particular way.114However , the decision held by the courts in the case of Kenrick & Co v Lawrence & Co,115 suggests that the more general the idea expressed in the artistic architectural work, the more difficult it will be to establish infringement. It can be argued that in this way , the development of architectural ideas and concepts is encouraged without restriction. 116 Therefore it can be deduced that the underlying concept behind the idea and expression dichotomy is to prevent common stock of architectural ideas.117
The difficulty arises however when the courts are called upon to draw a distinction between a general idea, which is not protected, and its expression which is. Due to the limited statutory protection of architectural plans, designs and drawings, hence an architect’s rights under statutory copyright are limited. It is for this very reason that a few claims of infringement of architectural works are brought before the courts. An architect does not have the exclusive right to execute his technical writings.118 He most probably has the right to complete, execute, and finish the structure which is based upon his copyrighted model or design.119 In all other cases, other persons may build the structures he has designed. However, they must build these structures without copying his copyrighted plans, drawings, and designs.120 This is the sole effective measure of protection to the architect.121
Conclusion
It is evident from the forgoing that the current system of copyright protection provides limited protection to modern architects and engineers in respect of their architectural plans, drawings, buildings or models of buildings in several respects. The features of architectural plans or buildings which are original, even if they are functional, should be rewarded with legal protection against unauthorized copying.
ABOUT AUTHORS
CHOLA MUSONDA MUSATWE
LLB (UNZA), LLM (ZCAS UNIVERSITY), PGD (POSTGRADUATE DIPLOMA IN TEACHING METHODOLOGY) (NIPA)
Lecturer in Law and Business Studies
COUNSEL COLLINS NKUMBWA, Esq.
CIP (NIPA), LLB (UNZA), LLM (UNZA), AHCZ, ASCZ, PhD Cand. Lecturer of law and Commissioner of Oaths
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88 [1964] WLR 273.
89 Cornish, W, Llewelyn, D, & Aplin, T, Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, Eighth Edition (United Kingdom: Thomson Reuters, 2013),6.
90 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),26.
91 (1982) R.P.C. 183.
92 Lionel Bently Brad Sherman, Intellectual Property Law, Fourth Edition (United Kingdom: Oxford University Press, 2009), 79.
93 Lionel Bently Brad Sherman, Intellectual Property Law, Fourth Edition (United Kingdom: Oxford University Press, 2009), 79.
94 Lionel Bently Brad Sherman, Intellectual Property Law, Fourth Edition (United Kingdom: Oxford University Press, 2009), 79.
95 Lionel Bently Brad Sherman, Intellectual Property Law, Fourth Edition (United Kingdom: Oxford University Press, 2009), 79.
96 Lionel Bently Brad Sherman, Intellectual Property Law, Fourth Edition (United Kingdom: Oxford University Press, 2009), 79.
97 Justice Zikonda: WIPO Collogiuym on the Protection & Enforcement of Intellectual Property, (2004), 8.
98 Justice Zikonda: WIPO Collogiuym on the Protection & Enforcement of Intellectual Property, (2004), 8.
99 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),4.
100 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),4.
101 Sangwani Patrick Ng’ambi, Intellectual Property Law, Module LL37, First Edition (Lusaka: Zambian Open University, 2008), 18.
102 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),15.
103 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),15.
104 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),10.
105 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),10.
106 Mwansa, C, Mulenga, Intellectual Property Law Module (Kitwe: The Copperbelt University, 2018),10.
107 Chapter 406 of The Laws of Zambia.
108 Trade Related Aspects of Intellectual Property Agreements.
109 {2000} TWLR 2416.
110 Cornish, W, Llewelyn, D, & Aplin, T, Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, Eighth Edition (United Kingdom: Thomson Reuters, 2013), 9.
111 Cornish, W, Llewelyn, D, & Aplin, T, Intellectual Property: Patents, Copyright, Trade Marks & Allied Rights, Eighth Edition (United Kingdom: Thomson Reuters, 2013), 9.
112 [1916] 2 Ch. 601.
113 Mann Phebe and Denncourt Janice, Copyright issues on the property
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