From the discipline of copyright law, it is possible to question the scope that the regulations establish to define what types of human intellectual creations are susceptible to protection. This article aims to address architectural works as works protected by copyright.
To begin with, the legal nature of copyright, within which architectural works are situated, must first be addressed. Unlike property or ownership rights over material things, when ownership pertains to an intangible asset such as an intellectual creation—such as literary, scientific, or artistic works—important characteristics can be identified regarding the rights held by their owners.
Firstly, intellectual creations, like any other asset from which a right arises, can be economically valued, but they are also conceived as a projection of the author's personality, an intrinsic value of the human being that has constitutional protection and grants the creator a series of special conditions to protect their creation.
Consequently, a distinction must be made between the rights arising from the dimension of the work that can be economically valued—economic rights—and the dimension of the work considered as a projection of the author's personality, i.e., moral rights. The former will have a duration defined by law, while the latter, defined as a fundamental right, will last for the entire life of the author.
When referring to copyright, it specifically concerns intellectual works in the literary, scientific, and artistic fields, "product of the creative effort inherent to human beings, and their respective author"[1], which must be suitable for dissemination or reproduction by any means to the public.
Regarding the moral rights that the author holds over their work, they may decide when to disclose it to the public, always require that any disclosure of the work be associated with their name, and oppose what they consider a distortion of their work when an adaptation authorized by a third party is carried out.
With respect to economic rights, which can be defined as the faculties that allow the creator of the work to exploit it economically on an exclusive basis, mention must be made of those prerogatives that will allow the holder to reproduce or fix the work in question in a medium of their choice, provided it is suitable for reflecting the essence of the work; distribute the reproductions made of the work; transform the intellectual creation, in the sense of taking its essence and making new contributions to it; and also communicate it to the public by any means deemed appropriate, provided that the relevant material conditions are created for a plurality of persons to access the intellectual creation.
Economic rights, due to their patrimonial nature, may be assigned to third parties, with respect to one or several of the described faculties, and on a permanent or temporary basis.
Once the nature of intellectual property has been defined, with greater emphasis on copyright as an integral species thereof, one can delve into the architectural work as an original intellectual creation protected by the copyright regime.
At the international level, in the revision of the Berne Convention of 1886, undertaken in Paris in 1971, based on the act drawn up there, Article 2 formally extended protection to productions in the literary, scientific, and artistic domain, regardless of the mode or form of expression (…) works of drawing, painting, or architecture”[2].
Within the Andean territory, comprising Colombia and Ecuador, Andean Convention 351 of 1993, in its Article 1, recognizes works of intellect in the literary, artistic, or scientific fields regardless of the form of expression, merit, or purpose of the work, bringing the provisions of the Berne Convention to the South American level, but also complementing that determination with the provisions of Article 4, literal h, which includes architectural works as recognized protected works. As a corollary, at the local level, Law 23 of 1982, in its Article 2, likewise included architectural works as protected works.
Thus, the architectural work was protected as an original development that combined art and technique simultaneously, starting from the conception of the work through drawings, plans, and sketches, to its development in the material or physical plane. Thus, the author begins with a planning of their work through various tools, and subsequently, together with the use of technical measures, raises their defined, original, and unique creation.
In this way, the architectural work, as susceptible to protection, must exhibit palpable originality in the texture, dimensions, forms, segments, and, in general, the complete structure of the creation through which it is defined and characterized.
The fundamental aspect, undoubtedly, will be the author's ability to capture originality in the final phase of the architectural work through the creation and combination of lines and volumes derived from the technique used by the architect, from which it is possible for the viewer to tangibly perceive the originality of the work, and consequently, to reproduce it and make it available to the public by any means.
[1] National Copyright Directorate, Subdirectorate of Jurisdictional Affairs. Process with reference number 1-2018-38570 of August 13, 2019, Adjudicator Carlos Andrés Corredor Blanco
[2] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, Paris Act, July 24, 1971
Andrés Ogonaga. – AZC CONSULTING ATTORNEY