Guy Heath and Jonathan Radcliffe
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Faith is the Church of England's stock in trade. But the C of E's recourse last week to copyright in its "gunfight" battle with Sony epitomises a particular kind of faith - in the power of intellectual property (IP) laws. Clearly the Church is banking on the law's capacity to deal with moral or societal issues, at least where a private or institutional interest is directly challenged. Even Tony Blair gave the Church his backing when he told Parliament that there was a need for large organisations such as Sony to have both "some sense of responsibility and some sensitivity to the feelings of communities".
But IP laws are generally designed to protect economic interests and are ill-suited to the role of moral guardian. They tend to be morally ambivalent and to err on the side of freedom of expression.
In the Manchester Cathedral controversy, the Church is demanding that Sony pull scenes from its computer game Resistance: The Fall of Man that features a gunfight allegedly set in the cathedral. The Dean’s letter of complaint describes this use of the interior as “virtual desecration”, and asks Sony for “a substantial donation”.
Although it is the sanctity of the cathedral that is allegedly threatened by the imagery, the legal complaint invokes copyright in the architectural features around which the battle rages. Framing this moral concern in the dry language of copyright law risks narrowing the debate and offering easy responses. If the relevant architectural works are too old, copyright will no longer subsist. Even if it does, who owns the copyright - Church or architect? And in any event the Church has to overcome the statutory freedom of expression given by Section 62 of the Copyright Act. This expressly states that any copyrights, in buildings and in sculptures and works of artistic craftsmanship if permanently situated in a public place or in premises open to the public, are not infringed by making a photograph or film of them. Nor are those copyrights infringed by issuing to the public copies of anything whose making was based on such a photograph or film.
The lesson for this debate is that if the Church’s intention is to have a moral debate, it would be better to have a proper one that avoids this minefield.
Ultimately, for all the value that now resides - and is recognised to reside - in IP, the courts are reluctant to extend the reach of IP laws beyond the economic needs that they are meant to serve. Thus Caterpillar failed in its attempt to use its trademarks to restrict footage of diggers made by it uprooting the Amazon rainforest.
Despite this general rule, modern IP laws - at least in Europe - embrace a special suite of "moral rights" alongside copyright. But these rights take a very narrow view of morality. The rights protect no more than the artistic integrity of the author, artist or architect. The most celebrated use of moral rights occurred recently in Germany when the Berlin court ordered Deutsche Bahn to rebuild sections of the new Hauptbahnhof because it had not followed the architect's plans - and thus violated artistic integrity. Unfortunately for the architects of Manchester Cathedral, even if there were any copyrights still in force, in the UK architects cannot generally object to derogatory treatment of buildings.
What some saw in the Deutsche Bahn ruling as a triumph of artistic integrity, most saw as utterly disproportionate and symptomatic of a world going quietly mad. Frankly, IP law struggles to deal effectively with balancing economic and "moral" issues - whatever their compass - and it is often best to keep the two quite separate.
Guy Heath and Jonathan Radcliffe are intellectual property partners at Nabarro
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