http://ipkitten.blogspot.com/2019/07/has-cat-got-your-copyright-dilemma-of.html
Our Kats have keenly reported on copyright disputes involving creations by animals, only to find that each time the claim stumbles over the same issue: there can be no copyright ownership without human authorship. Kat friends Bhavik Shukla and Iravati Singh share with us possible ways around this hurdle by proposing a model which aims to grant sui generis protection to animal-made works. Here is what they write:
Creative works made by animals and discussions on their copyright ownership have frequently featured on the IPKat, be it Ella, the extensively covered selfie-taking black macaque [here, here] or the animal orchestra and its related questions of copyright ownership [here]. Noting the increasing attention paid to animal-created works, we consider whether such creations can and should be folded within the copyright system. We argue that, in some circumstances, animal-created works can be protected by a form of sui generis protection, which does not involve the strict standards of the conventional copyright regime.
We suggest that animal-created works have a spectrum of their own, on which independent creativity of the animal lies on one end while a degree of human agency interaction lies on the other. For the purposes of further discussion, we divide animal-created works into two categories: works created by animals acting independently, and works created by an animal under some form of human intervention. We propose a different framework of protection for each type of animal-made works. The welfare of the animal is a concern at the centre of each framework.
Independent animal-created works: sui generis protection for animals in zoos or national parks
There are examples in nature of independent animal-created works involving no human participation. One example is the courtship “bower” made by Bowerbirds. These bowers are beautiful, intricately decorated structures, each of them having distinct colours and patterns that express the bird’s creativity (here). Similarly, artists regard beehives and their labyrinthine structures as highly artistic pieces due to their detailed and uniform hexagonal mazes (here and here).
Although generally no claims for copyright arise in these works, it may be in the interest of animals to further a sui generis protection to their ‘natural’ creations. We argue that the provision of this protection be dependent on the animal’s habitat. Where an animal is a denizen of a national park or zoo, such animal’s natural creation should be granted protection via a trustee, being the respective national park or zoo.
Granting such protection would ensure that the natural creations of animals could be commercially traded with a mark indicating the place of origin of that particular work. For example, bowerbirds are found in abundance in the Nitmiluk National Park in Australia. Granting sui generis protection to the used nests of these birds and selling them commercially, together with an indication of source, will certainly be a feather in the cap of an earnest zoologist or an avid explorer. The proceeds arising from these works should be utilized for the conservation of the animals or birds, as the case may be.
We are of course aware that most animals cannot be traced to a national park or a zoo, in which case no such sui generis protection is appropriate.
Works created by animals under the guidance of humans: copyright for the trainer + sui generis protection for the animal
| Ella, Selfie by Ella…and Slater? |
Animals in most national parks and zoos are trained, guided, or taught, to a degree, to execute certain functions (here). Zoo and parks appoint zookeepers to simulate the artistic flair of animals. Painting, as an activity, can be stimulated by offering animals puzzles to solve or teaching them to paint (here). Indeed painting has become a widespread activity across zoos and parks wherein humans provide specific training and guidance to animals. Questions about ownership of these paintings arise in contexts of such human involvement, especially when the works are sold commercially.
A paragon of human involvement in animal creation was showcased through the Monkey Selfie case, where Slater, the photographer, took the creative decisions such as the choice of lens, film, film exposure or camera to be employed against the setting of the Indonesian forest, but the monkey, Naruto, took the selfie.
A more conventional example of human involvement in guiding animals is that of artist Ladislav Hanka, who has recently started putting his etchings into hives, so that the bees can add their exquisite maze-work to it (here). In this setting, Hanka does everything except for producing the beautiful maze-like structures around the main art piece.
In the aforementioned cases of human involvement, we argue that copyright should be awarded to the persons involved in training, guiding or facilitating the art-making. In so doing, the trainer may impart his own artistic characteristics to the animal. For example, when the trainer teaches a chimpanzee to paint, he might hold the brush in a particular way, which may influence the strokes being made on the canvas.
Still, most jurisdictions require that works be created by human beings to attract copyright protection. For example, the US Copyright Office will refuse to register works for copyright protection if the work was not create by a human being (see, Section 306 and Section 313.2 of Compendium of U.S. copyright office practices (3rd edition). US federal copyright law is premised on a human creator, and the law has been so interpreted by the courts (see, 17 U.S.C. § 102(a); Burrow-Giles Lithographic Co., 111 U.S. 53, at 58, referring to machine authorship). In the UK, a similar interpretation may arise from Section 9 of the Copyright, Designs and Patents Act 1988, since the statute refers to the author as the person who creates the work.
Adopting our approach would have led to the Monkey Selfie case reaching a different outcome. Slater had arranged the camera, its lens and the film exposure in a certain way, enough to satisfy the creativity threshold, commonly the “modicum of creativity” that copyright laws in the Feist-influenced jurisdictions require. Yet Slater was denied copyright because he did not press the “click” button. The interpretation we propose would address this problem and grant Slater the copyright in the photograph.
At the same time, our model aims at acknowledging the animal as a “creator” of the work, and intends to offer it sui generis protection. Accordingly, we argue that our model would ensure the grant of copyright to the trainer who acts like an agent, subject to a sui generis protection in favour of the animal to account for the fact that the animal is the actual creator of the work. The need for this model is due to the non-recognition of animals as authors of works for copyright protection. This sui generis protection conferred on the animal should afford that an equitable share of the revenue generated by the work be used to fund the animal’s welfare.
The question of defining what would amount to an ‘equitable share’ in practice is beyond the scope of this post, but it seems reasonable to take into account the degree of human involvement in this calculation. The degree of human involvement may usually be determined by the level of training being imparted or the guidance being offered. To explain this in terms of an example, human involvement will be more substantial in teaching a chimpanzee to paint by gripping the brush than in placing an etching in a bee’s hive to guide the insect’s work. In practice, “human involvement” will be fact-sensitive and will have to be evaluated on a case-by-case basis.
This model would not require an overhaul of national copyright laws or jurisprudence to be implemented as regards the rights of the human agent. But subsidiary legislation to introduce sui generis protection in favour of animals will be required. This can be done by introducing new provisions applicable to animal-created works.
The framework we propose should not be construed as condoning cruelty in connection with the training of animals. It is important that an exception to the grant of copyright in favour of the trainer should be made if the animal has suffered abuse in connection with the creation of the work, whereby copyright and sui generis protection vesting in animals will be excluded, with the result that the work will be in the public domain.
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