Interview with Kristina Matvejenkaitė, the Lawyer
Have you ever faced the issue of plagiarism in architecture?
As far as I’ve checked and faced this issue in practice, it is not regulated in detail and analysed in legal documents. First of all, the problem is that plagiarism in architecture is not separately named as such and appropriately defined in legislation. While speaking about legal regulation, this subject is not described structurally in one place, but rather there are quite many legal acts to appeal to in such cases. The initial reference point is the Law on Copyright and Related Rights, which defines the copyrights and describes the ways of their protection. There are also other legal acts covering the issue only partially: some parts of the Law on Construction, Construction Technical Regulation. The Civil Code also mentions the general principles and ways of copyright protection, which may be applied in case of suspicion of plagiarism or copyright violation. Then there are international documents. The EU legislation, mostly the directives, besides other things, regulates the copyright area; some international treaties cover the issue of copyright protection. So, we can state we have really many legal documents. But the problem is that legislation and life often go the opposite directions or people fail to take advantage of the law, which is designed for them and entrenched in the documents. The latter is especially true of Lithuania, not only in the area of architecture, but also other fields of art. The problem, when someone has breached the copyright and thus committed a violation against the author, often is discussed within a small community. People discuss the issue and calm down without bringing it into the public sphere. Thus solving the problem officially is failed. It is good, if after a breach of the copyright law, the issue is successfully settled among architects, inside the community. If this is the reason why we hear or know nothing of copyright legal disputes, I am really glad, because in this case it means people can find a good-willed agreement. But I’m afraid of other thing – people just say: “Nothing to be done, my rights have been violated, but I don’t want to conflict, I just can’t afford it.” It seems people do not think it is important that one’s rights must be cherished and protected. They just bear with the situation and do not try to change it. So, I have never had such cases (of plagiarism) in my practice, although I really miss them. Of course, some lawyers specialise in the copyright area (and I do not), so they can possibly tell you much more about this. But just by looking at the judicial practice and passed rulings, I can tell there are none of them.
I can agree that architects or even artists on the whole fall short of protecting their own copyrights. But on the other hand, this maybe related to the fact that the area of copyright regulation is quite complicated. We were interested in international cases of plagiarism, but also did not find too many examples of copyright protection.
The copyright area in general is very extensive, so in order to see the possibilities for copyright protection, each area of violation should be analysed separately. I mean, the copyright area is not homogenous, it covers property and non-property rights; each branch has its own sub-branches and is divided into smaller rights. Each of them should be looked upon separately, so each of them could be separately breached, or in some cases, a few copyrights may be breached at once. Their protection is another issue. Speaking of architects’ non-property copyrights, we understand them as the authorship, right to the author’s name and immunity of the (architectural) work. Thus architects have quite a lot of possibilities to protect their works and defend themselves against possible breaches; to do this would be fairly simple. For example, before signing a contract for making a work of architecture with the client, an architect could demand to insert a clause providing for indicating the author’s name in any public use of the work (e.g., in posters, fliers, visualisations, etc.). As far as I took interest, I have never seen a reference to architect’s name in such cases. Thus, quite simple solution could be the inclusion of certain conditions to specify architects (co-authors’) names in the contract. This could actually protect the author’s non-property copyrights against possible further breaches.
Architects’ professional organisations have certain techniques, commissions of ethics, which can solve some disputable questions inside the organization within the framework of their competences. But is it possible to solve the case not exactly related to protection of the author’s copyright, but rather when statements are made that a work of architecture looks similar to the analogue by foreign authors? The question is how much works should look similar, so that one of them could be named as a copy, plagiarism and, finally, breach of copyright? What should be the legal mechanism for establishment of plagiarism?
It is one of the most complicated tasks. When the case grows into a judicial dispute, there are no detailed specifications, how to distinguish the plagiarism from the original.
So, what would the court do, which documents could it follow in such a case?
The reference point would be the description of the work, what is the original work, what is its tangible expression. The criterion of originality is essential. If in case of assumed copy it would be found it is not the original, it could be a sufficient ground for declaring it the case of plagiarism and breach of copyright of the original. On the other hand, the case of accidental making of similar work without seeing its original prototype is also possible. I imagine it is possible and believe such things do happen. It is quite often in music. But usually there are no possibilities to prove that you have not seen or heard such another work before making your own work.
Can we state in conclusion that the concept of plagiarism is not defined in the legal acts? In compliance with the acts, the property or non-property damage can be evaluated, but is finally the issue readdressed to expert architects, who are the ones who evaluate the issue of similarity or identicalness?
Probably you are right: similar procedure is applied in another area, more comprehensively considered by courts – protection of trademark copyrights. Commercial interests are of more importance in this area, so the judicial practice is more extensive and quite a lot of court judgements have been passed. In such numerous judgements, the courts have formed certain practice and rules, what issues demand special attention, what evaluation criteria should apply for a breach, etc. They consider, whether a trademark looks just similar to another trademark; does a copy look misleading to a consumer, so that he/she could think he/ she is buying a product by another (more famous and popular) manufacturer. Thus this area has similar problem, but the judicial practice is more developed, which makes easier to analyse the problems and violations made.
So, how the distinction is made in the trademark area? How the similarity crossing the dangerous line (of copying or plagiarism) is identified in this case?
Different things are analysed. First of all, the level of similarity is identified between the appearance, colour, graphical part and description of the trademarks. Even some statistical information is considered. For example, the consumers’ survey on the street is performed (by presenting to their attention similar trademarks) and asking whether they think it is of the same manufacturer. If the majority of respondents confirm such similarity, this has some influence on the evaluation of the court of whether the violation has been committed or not.
Interesting precedent; but it can be stated that all people are consumers and in architecture or art some expert or critic’s opinion should be taken into consideration…
Yes, this example can be used in architecture only in this aspect that more disputes and judicial practice is needed. The criteria for separating a copy or plagiarism from the original work must be developed through everyday activities. There is no other way out. If a few law experts are asked to define this, this practice would be meaningless and possibly even undermining. Lithuania is a state of normative legal heritage; the regulations first of all must be entrenched in legislation. In difference from America or UK, where the precedent law is applied and legal practice is developed by courts, no court in Lithuania can allow itself to go beyond the limits of any applicable legal act. But, I think, courts have been given sufficient tools, the common principles of justice, integrity and reason do apply and the significance of judicial practice is acknowledged. If, for example, the Supreme Court of Lithuania has formed the position on a certain issue, its application is mandatory for courts of the lower instances. Therefore, we need legal disputes, although they are costly and painful; I myself am not a supporter of legal procedures. I also believe it is important to give a chance and value to self-government institutions, which is still rare in Lithuania. Architects’ self-governance is also weak in our country; responsible institutions are not capable of performing certain functions ascribed to their competence, including the copyright protection. Attempts are being made by the Lithuanian Chamber of Architects, but as far as it has no mandatory membership, it has no possibilities of making architects-non-members to implement the directions of the Chamber, observe the standards of professional ethics and consider the copyright issues.
In some cases, copying may also be artistic, intentional, for example, remixes and mash-ups in music. Is the legal evaluation of such cases possible? I mean, when a new piece of art is made by recomposing the existing ones.
Yes, the law does discuss these issues and authors’ interests are protected in cases of remade works. Specific clauses of the Law on Copyright and Related Rights provide for a possibility to make derivative pieces of art, adapt and arrange them. These activities must be undertaken by taking into consideration the rights of the initial author. In order to remake a piece of art, consent by the initial author is necessary. Another thing – in public announcement and distribution of a derivative work, it is obligatory to indicate that such work has been created by using the initial work by another author. When works are copied and remade without such consent, the author is entitled to defend his/ her interests by legal remedies and argue that his/ her work has been used in a derivative work. This process requires some expert evaluation. In such a case, the initial author has to collect the sufficient number of evidence in proof that his/ her work has been actually used. According to the legal academic literature, regardless of the value of the new piece of art (its artistic value may be even higher than that of the initial work), the copyright of the initial author cannot be negated. Such remade work may be even more popular, sometimes it may be even awarded, but nevertheless the initial copyright must be respected.
Interviewed and prepared by Martynas Mankus