Robert Graham Merkel wrote:
With regards to copyright protection of photos in
Australian law, I've just been reading the Copyright Act. Under the
act, an "artistic work" is defined as:
(a) a painting, sculpture, drawing, engraving or photograph,
whether the work is of artistic quality or not;
and several other things.
Section 31 of the act then goes on to state that:
For the purposes of this Act, unless the contrary intention appears,
copyright, in relation to a work, is the exclusive right to...
(b) in the case of an artistic work, to do all or any of the following
(i) to reproduce the work in a material form;
(ii) to publish the work;
(iii) to communicate the work to the public;
If you took the above literally, that would appear to award copyright
protection to photographs of artworks.
However, one little bit of law I picked up recently is that whatever the
literal meaning of specific words in legislation, there is something called
the doctrine of purposive construction, where judges try and figure out
what the law was *intended* to say rather than what it actually *says*.
You might be able to mount an argument that the clear intention of that
reproductions was to protect works where some creative effort was made,
rather than merely protect an exact facsimilie of a creative work now
in the public domain.
IANAL either but I'm sure that I can be just as argumentative. :-)
I can take the above quoted statutory text and arrive at the contrary
conclusion. Notably "the exclusive right ... to reproduce the work in a
material form" suggests that this right is one held by the original
artist. When the original painting goes into the public domain that
"exclusive" right would go there along with it.
Of course, I've always felt that the "public domain" was something more
than a copyright free-for-all. I make the distinction that rather than
representing rights owned by nobody, it is really rights owned by
everybody. This has implications in terms of being able to be
represented in the courts. "Nobody" cannot have interests to be
represented, while "everybody" can.