[Guest post] Czech court rules that placement of advertisements on a building constitutes a moral rights infringement

The IPKat has become aware of an interesting moral rights judgment recently issued in the Czech Republic. Katfriends Juraj Vivoda and Martin Loučka (both at Taylor Wessing) explain what happened. Here’s what they write:

In 2016, Czech media reported that an enormous side-wall billboard and a 100-square-meters-large roof front digital banner attached to a 1980s brutalist architecture building in Czechia’s Prague had been causing headaches to Prague’s citizens and the city’ authorities for 10+ years. Albeit unsuccessfully, Prague’s officials, architectural conservationists, neighbouring citizens and apparently even the building’s owner have fought long bureaucratic battles to have the billboard and the banner removed from the building.

As further reported, the current owner of the building has acquired the building in insolvency (from previous owner) and claims that he has merely “inherited” the lease agreement that enables placement of both the billboard and the banner. “The lease agreement is impossible to terminate,” said the current owner to the Czech media and noted that he would rather wait for the contract to terminate by a lapse of time (in two to three years) than risking potential actions for damages for breach of contract should he try to remove the advertisements himself.

It has also been reported that the tenant to the lease agreement and the actual owner of the advertisements in question is a company seated in Panama’s Mossack Fonseca law-firm as a “shell company” with anonymous owners. “The owner pays rent and upholds the agreement” reported the Czech media.

In 2019, Mr Jan Hančl, the buildings’ architect, decided to bring an action against the building’s owner before the Municipal Court in Prague. Mr. Hančl claimed that the placement of the advertisements on the building infringed his author’s moral right in the building as an architectural work and requested the court to order the buildings’ owner: (i) to remove the advertisements from the building at his own expense; and (ii) to pay the claimant an adequate monetary compensation for the moral harm.

As noted in the judgment of the High Court in Prague, the building is apparently highly praised by the architectural community as an example of quality design of administrative buildings during the 1980s. In particular, the building is appreciated for the architectural solution of its roof front and for the building’s special setting in the surrounding environment.The building’s architectural design received recognition back in 1984 as well as in 2006 and is praised from both historical and current architectural perspective.

The Municipal Court in Prague, as the first instance court, ruled in favour of the defendant and dismissed the action as unfounded. The court focused, in particular, on the fact that the advertisements were placed on a scaffolding which the court assumed is independent of the building. Therefore, even if the scaffolding is covered with advertisements, this does not interfere with the architectural work.

Regarding payment of compensation for moral rights’ harm, the court noted that the building as an architectural work had not been disrupted and the fact that the building is momentarily not visible would not be relevant. The court concluded that the issue must be evaluated from an objective point of view and that objectively there had been no interference with the building a such; the subjective perception of the author that he had been “harmed” due to the fact that the building not being momentarily visible would not be relevant.

On appeal, the claimant noted that the billboard was attached to the scaffolding and the scaffolding was firmly attached to the building. Put it differently, the first instance court had been wrong in holding that the scaffolding would stand independently on the footpath in front of the building. Similarly, the digital banner on the roof front was firmly attached to the building.

The High Court in Prague, as the court of appeal, ruled in favour of the claimant this time. The court disagreed with the reasoning of the first instance court that covering a substantial part of a building by advertisements does not constitute a mutilation of a work. The court noted that attaching a billboard to a significant part of the building represents a devaluation of the work in the same way as the placement of a digital banner on its roof front.

On the issue of compensation for moral rights infringement, the court annulled the decision of the court at first instance and ordered it to examine again the intensity and duration of the infringement and to further evaluate the legitimacy and extent of the compensation claim.

This judgment is particularly interesting because it was grounded on a right of the author not to have his work used in a manner detrimental to its value, and not on the right to give consent with alteration or modification of the work. This distinction is important since the copyright act (at least the Czech one) provides several exceptions to the latter right, but not to the former.

According to the judgment, covering a substantial part of a building with a canvas for advertising purposes is likely to reduce the value of the work expressed by that building. How would the court assess the same situation in terms of the right to give consent with alteration or modification of the work, if the claimant would have chosen this line of argumentation? Can affixing an advertising medium (containing another work) to a building amount to “combining of a work with another work or element” and thus invoke the author’s right to give consent with such activity concerning such architectural work? This argumentation does not seem entirely odd either, because the resulting effect for the observer is that the overall perception of the work is different from the author’s intention.

Both Czechia and Slovakia have struggled to fight illegal (or even legal) placement of city-street advertisements. The issue of “visual smog” is also becoming a political topic. The Czech ban on placement of advertisements near highways adopted two years ago has led to the removal of some billboards but new have still appeared. In Bratislava, the capital of Slovakia, its newly elected major has been working to remove illegal advertisements after years of little to no interest of his predecessors. In the fight against illegal or obnoxious public advertisements, public regulation should be the norm. But if this proves ineffective, could copyright or author’s rights play any role or serve as a tool to achieve (public interest) goals? As this case demonstrates, the answer might be ‘yes’.