In the intertwining of different interests and protected rights, the most difficult, but also crucial goal of legal science, regulation and practice is to find a balance and decide which will prevail in a particular case. In addition, the task is to predict as many possible situations in practice as possible that can affect the dominance or possible problems in this “seesaw” relationship.
One of the relationships between rights where it is necessary, but also complex, to find a balance in order to successfully coexist is the relationship between property rights and copyright. These are two rights guaranteed by the Constitution of the Republic of Croatia as the highest act of our legal order, so their protection and freedom of exercise is at a very high level. Nevertheless, one of them sometimes has to suffer limitations in order to enable the realization of the other, but the mentioned balance in the relationship and equivalence in practice, as well as “on paper”, must be in the first place.
1. Equal force of rights and proportionate restrictions
Ownership and copyright are both exclusive rights, which means that their holders have the full right to dispose of it freely and to do whatever they want with the object of the right, as well as to exclude all third parties from those actions.
When we acquire the right of ownership over a movable or immovable object by purchase or sale, if it represents someone else’s author’s work and work, the copyright continues to belong to its owner and does not pass to us together with the right of ownership.
The fundamental rule that applies in this relationship is that copyright is independent of the right of ownership of things or the medium on which the work is fixed, and the same applies in the opposite direction, so the right of ownership of things exists independently of copyright. Changes of ownership or changes in copyright holders do not in themselves have any effect on the other right. However, the right of ownership must not be exercised contrary to copyright, which nevertheless represents a kind of limitation of the right of ownership.
When limiting any right, one should always have the principle of proportionality.
In accordance with the principle of proportionality, it is important that when restricting a right, it is proportionate and appropriate to the goal that is to be achieved, and that difficulties greater than those necessary to achieve that goal are not caused. Limitations of both rights can be realized and implemented only if they are previously prescribed by law.
General and special restrictions on property rights are prescribed by the Law on Property and Other Real Rights, while substantive, temporal and spatial restrictions on copyright are prescribed by the Law on Copyright and Related Rights.
Both rights are “elastic” and while there may be different types of loads on them, such as, for example, the publisher’s right to reproduce and distribute someone’s literary work, or a lien on real estate, after the end of those burdens or restrictions, it elastically returns to its original form and scope. Changes in copyright ownership, as well as changes in ownership, do not affect the other right.
Copyright consists of two components – property and moral rights. The moral rights of the author, such as the right to recognition of authorship by citing the author, the right to integrity, which includes the prohibition of mutilation and destruction of a part, the right to honor and reputation, and other moral rights, are inalienable and non-deniable. The author’s property rights can only be entrusted for exploitation or realization. The only transfer of both components occurs upon the death of the author when the right is inherited. Accordingly, the right of ownership never limits or abolishes the author’s moral rights, but sometimes possibly property rights.
Copyright subjects are really diverse. They include works from the fields of work, from literature, music and visual arts, through scientific works to works of architecture, while this is a small part of possible examples… As a result of the above, author’s works can be fixed on truly different objects and substrates, among which there are those used in everyday life, such as architectural works, but also various works of applied art and industrial design. When the ownership of the author’s work is on the author’s side, there is no problem, as with most works where these two rights do not overlap or conflict in any sense, so they can exist freely and untouched on the same thing. However, questions are raised when it comes to some types of works that, by their very nature, imply a more frequent change of ownership.
2. Visual arts as a special category
It is precisely with works of fine arts, photography, applied arts and, especially, architecture, that we encounter a lot of challenges in the sometimes necessary choice between limiting one or the other right. The question is how to achieve a fair and sustainable balance between these two highly protected and valued rights.
The question of a fair relationship arises most often in three cases, namely when it comes to works of fine art, architecture, and applied arts, especially since such works, in addition to being artistic, also have a certain utility value in everyday life.
The most common rule is that content restrictions of copyright are justified by some logical, practical, or conditionally speaking higher goals, but on the basis of such restrictions commercial profit must not be realized.
For example, when works of authorship are owned by cultural heritage institutions (museums, libraries, film archives), educational, charitable and other institutions, they have the right to reproduce them for the purpose of preserving the material and for internal needs, but also for other purposes, and to communicate it to the public with naming author, but they may not make a profit from it.
Furthermore, the organizers of exhibitions and auctions can print posters, catalogs and other materials for the promotion and marketing of these events and reproduce on them – by photographing and printing works of architecture, painting, photography, applied art and design. In this case, given that the sale of tickets and the sale of the works themselves makes a profit, the factor of commercial profit is not excluded. It is an open question who can be the organizer of such an exhibition or auction.
A work in private ownership, for private use, may be reproduced without permission, but only for one’s own needs and without the goal or actual realization of any commercial profit. This is where, for example, about photocopying a book or photo, duplicating a music album for use on multiple devices and the like. Compensation for these cases is realized in a specific way, through fees that are calculated in the import or distribution of the devices used for the mentioned actions.
The work of fine art becomes the property of the acquirer upon sale. The general rule of copyright related to distribution is as follows: with the first distribution of the original, which means its placing on the market and sale, the author loses his previously exclusive right of distribution with respect to that original or copy of the work.
However, with painting, the situation is different because there is a right of succession. It refers to the resale of original works, or copies made by the author himself in a limited number or made under his supervision. When the resale is carried out by galleries, auction houses or any entities that deal with it professionally, the author has the right to a share of the sales price that is realized by each resale. This is a special case when the right of first distribution is not exhausted. Law in Article 35. prescribes the percentages in the price to which the author is necessarily entitled, as well as the amount of the maximum share, but within these frameworks it is always possible to agree otherwise. Despite this, the author cannot even contractually waive this right.
Furthermore, there are specific provisions in the law that prescribe how to treat the relationship of ownership and authorship in certain situations.
As a rule, the owner of the original work has the right to destroy that work, but only if this is preceded by a certain procedure, i.e. a kind of author’s approval. If the author or one of the co-authors has a “special interest” in the work and this can be known to the owner in some way, he must inform the author/co-author about this and offer him a purchase in the amount of the real value of the work. If the author does not want to buy the work, after allowing him to record and photograph it, the owner may destroy it.
It may happen that the author’s work is fixed on someone else’s property without the owner’s permission, as is the case with drawing graffiti or other types of street art on buildings without prior agreement with their owners. In such situations, the owner has the right to destroy the work.
The same does not apply when it comes to works of architecture. If the architectural work needs to be destroyed, the author only has to be informed about it, allowed to photograph or record it, and hand over the blueprint, if possible.
As far as changes and renovations of works of architecture are concerned, the interests of the owners still prevail over the authors, considering the real needs and possible dangers. It is allowed to carry out necessary changes to the building, including the use of other materials if this is necessary considering the requirements of economy and expediency. In that case, the author has the right to demand that his name be removed from the building or, if the name is indicated, that a note be added to it about the changed materials and general design.
4. Further limitations of the owner’s copyright rights; first access to the work and prohibition of exhibition
If the author needs to study the original or a copy of his work in order to be able to make another copy or a specific delivery of the work, the owner or possessor is obliged to enable him to access the work, unless this conflicts with some of his legitimate interests.
Finally, the author can forbid the exhibition of his work to its owner, but only in the case of alienation itself and if it is not an art gallery or similar entity as the acquirer. There is also an obligation on the part of the author or his heirs to issue a certificate of authorship to the owner.
In order not to find yourself in unwanted situations or unnecessary disputes, our suggestion is that everything in connection with which there is contractual freedom of the parties be regulated by contract in advance. Our Agency is therefore at your disposal for advice and inquiries, representation and assistance in concluding contracts, whether you are the author of the work or the acquirer of ownership rights over the copyrighted work, as well as for representation in case of disputed relations if they do arise.