Copyright, Art and Originality: Comparative and Policy Issues

In: Global Journal of Comparative Law
Lucie Tréguier Graduate Lawyer at Herbert Smith Freehills, Paris, France; previously with Holman Webb, Sydney; IP Law Masters (Université Paris 2, Panthéon-Assas); Art History Bachelor (Université Paris-Sorbonne, Paris 4)

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William van Caenegem Professor of Law, Bond University, Australia; llm, PhD (Cambridge)

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This article reviews the laws of France and of Australia in relation to artistic works copyright for useful articles. Australian law applies a different subsistence test to ‘applied art’ than to fine art, whereas French law makes no such distinction, applying the principle of ‘Unité de l’art’. The decision of the High Court of Australia in IceTV Pty Limited v Nine Network Australia Pty Limited [2009] 239 clr 458, which aligns the standard of originality more closely with that applied in European copyright law, invites reconsideration of the Australian approach in favour of a universal standard for all artistic works. A more contemporary understanding of what constitutes ‘art’ points in the same direction. In the result, there is no longer any need to apply a restrictive ‘artistic quality’ standard to works of applied art in Australia. Such an approach better aligns the tests of artistic copyright subsistence in different jurisdictions.

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