Notes on the evolutionary tract of Copyright, making special reference to the works of the plastic arts.
1.1 General considerations
In order to refer to the legal protection that works of the intellect have held in the sphere of the plastic arts, it is necessary to attend to the evolution of Copyright itself, which protects under its legal protection different creations derived from intellectual activity.
The history of man as a social being and the creative need for it, mark an important guideline in the evolution of artistic praxis and consequently, the establishment of legal norms that support the rights of authors.
An obligatory reference is the invention of the printing press by Gutenberg in Europe in approximately 1455, which was a momentous moment in the history of Intellectual Property and to which many link the origin of Copyright. The emergence of this mechanical medium allowed the printing and reproduction of books in large quantities that were previously impossible to obtain in manuscript form; in addition to constituting a means to provide a wider dissemination of literary creations and break the monopoly of the ideas of the dominant sectors, as well as granting authors the possibility of obtaining some economic income derived from their creative work.
However, it is valid to point out that even when it is argued that Copyright takes as its starting point the emergence of the printing press, which brings with it - given the new phenomenon of the reproducibility of works mechanically - the need for regulations Legal rights designed to protect creators, as early as Classical Antiquity, in Greece and Rome, protected their rights somewhat, as "plagiarism" was considered dishonorable and protection was governed by general norms of common property law.
Furthermore, although the protection of authors had not been systematized in written norms since ancient times, there was a notion of the importance of the recognition of rights of a moral nature. In this sense, Dock pronounces himself, stating that: “(…) the Roman authors were aware of the fact that the publication and exploitation of the work puts spiritual and moral interests at stake. It was the author who had the power to decide the disclosure of his work and plagiarists were frowned upon by public opinion. ”
In the context of visual creations, it is stated that prior to the emergence of the printing of mobile metal types by GUTENBERG, the technique of printing had been used in China and Korea for centuries, based on printing characters carved in tables of wood and other methods subsequently used; and in Germany, from the beginning of the XV century, cards for games and religious stamps were created by this procedure.
The discovery of engraving brings with it, likewise, important transformations regarding the possibility of accessing the works by a larger circle of people.
All this revolutionizes the idea of deserved protection and brings about the origin of the privilege regime, which although it was a form of protection for incipient intellectual work and at the beginning not aimed at protecting precisely the interests of the authors, it did turn out to be a recourse to suppress behaviors that affected printers, given the existence of those who reprinted books without any authorization and, in turn, against the competition that took place when certain works were republished by other printers that hindered obtaining a profit from the sale of the exemplary. As Fremiort Ortiz Pierpaoli points outIn this way, a new period began that affected the Copyright and that was called the cycle of monopolies. These privileges were granted by public authority and allowed publishers to reproduce the works, granting them exclusive rights for a limited time.
Protection was gradually extended to some authors who, given their celebrity, received this benefit as a reward. In these cases the legal protection turned out to be for a longer period of time than that for which the editors enjoyed it and it even covered, in some cases, the author's entire life.
Privileges were erected in favor of literary creations in particular. However, some are recognized in favor of plastic artists. An example of them are those granted to the engravers Kolb and Titian in 1500 and 1508 respectively. Its exceptional nature and its object, directed not at the protection of the work itself but at its reproduction on a large scale, are a sample of the limits of recognition of the rights that the authors deserved for their own creation.
At the end of the 17th century, a movement took off that, influenced by liberal ideas, pronounced itself in favor of freedom of the press and the rights of authors. This brings with it the collapse of the stage of privileges and the promulgation of what is known as the Queen Anne Statute on September 10, 1710 by the English Parliament. This regulation is the first express recognition of Copyright which grants the creator exclusive rights over his works. However, it only covered literary works without referring, therefore, to other areas of creation. In the words of Claude Colombet “(…) it constituted a formalist legislation; registration of the work was essential and only provided very limited protection over time. ”
Regarding protection in the sphere of the plastic arts, in France regulations were issued such as the Decrees of June 28, 1714 and October 11, 1719, which despite being addressed to academics only, resulted in progress in the protection of intellectual interests. These regulations rigorously protected the reproduction of works by means of engraving and their sales, even establishing sanctions such as a fine and confiscation of violators.
They also played an important role in the materialization and realization of authors' rights in this area, the development of the silk industry in Lyon. This led to the establishment of regulations to defend manufacturers (in the same way that had already happened with book printers) between the years 1712 -1717 and in 1744. In these cases, creation was itself worthy of protection, without temporarily restricting ownership of the designs and without requiring compliance with formalities; but the limitations came given by circumscribing said norms to the mentioned city. Subsequently, unitary legislation was passed in 1787 under the reign of Louis XIV, and the protection became national; although this provision was never really applied.
Also taking place, on April 21, 1766, the Declaration of the Community of Founders and Engravers, who spoke in favor of the prohibition of usurping the molds of the master smelters and printing using their models.
On the other hand, in England a law was enacted in 1735 that protected the interests of plastic artists and especially of engravers, which also meant an advance in the protection of their rights.
In this way, the protection that in the beginning only included literary works was gradually being extended, incorporating musical works as well as works of art. This scope is reflected in the French Decrees 13-19 January 1791 and 19-24 July 1793. The latter was a more general regulation that "expressly recognized artistic and literary property, which determined in an organic and orderly way the defense comprehensive copyright law. "
These norms allowed the recognition of the creator's singular right to his work to be strengthened, as did the laws enacted in the United States at the end of the 18th century, which, enacted prior to the aforementioned legal provisions, exerted a notable influence on the formulation of those. In this way, the American Constitution of 1787 in its Article 1, Section Eight, gave Congress the power to "promote the progress of science and useful arts, guaranteeing for a limited time to authors and inventors an exclusive right over their respective writings and discoveries ”.
Copyright thus acquires a definitely modern meaning and gradually, the different countries were establishing laws to ensure the rights of creators. Likewise, many inserted within their national constitutions copyright in the fundamental rights of the individual.
1.2 A view from the field of international protection
The development of international relations, the increasingly widespread dissemination given by the new media to the creations resulting from intellectual work, and the reproduction, use and commercialization of works, led to the urgent need to grant rights to authors. beyond the territorial limits of its borders.
In principle, the first forms of international protection were verified through the drafting of bilateral agreements between States, especially between European countries. Said agreements were limited in scope and, therefore, it became necessary to regulate matters concerning copyright in a norm that would standardize and establish a minimum limit of protection regarding the exercise of these powers.
The Berne Convention - concluded on September 9, 1886 - was then born as a result of these requirements; still in force, despite the successive modifications it has undergone. This multilateral treaty grants a high level of protection and has become a fundamental instrument to provide authors with the most effective guarantees. In turn, it served as a trigger for a series of regulations that are subsequently issued. In the inter-American framework, for example, are the Montevideo Treaty (1889), the Mexico Convention (1902), the Rio de Janeiro Convention (1906) and the Havana Convention (1928).
In 1952, the Universal Copyright Convention created on the initiative of the United Nations Educational, Scientific and Cultural Organization (UNESCO) was signed. This regulation currently in force -after being revised in July 1971- and which today has a large number of adherents, was necessary in the context of its emergence because many countries considered that the level of protection established by the Convention of Bern was very high.
In addition, the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) was adopted in 1994, as a result of the negotiations carried out in the so-called "Uruguay Round", which includes rules related to international trade in the sphere of Intellectual Property.
On the other hand, the text of a treaty was approved in 1996 in Geneva, which without contradicting the provisions of the Berne Convention, gives the authors a broader spectrum of rights: the Treaty of the World Intellectual Property Organization (WIPO) on Copyright.
All these regulations protect the rights of intellectual creators, and within these, those relating to artistic property, thus including visual creators.
