Skill and Judgement
A formed walking track made through the bush is an artistic work in Australia, and hence subject to copyright, because the creativity, skill and judgement exercised in selecting its route makes it a sculpture or engraving, and is a work of artistic craftsmanship.In creating a walking track, one doesn't simply follow a bearing from start to end point, but rather actively chooses a route over terrain. The choices made by a walker are conditioned by the topography, surface area, ground cover and a desire to arrive at certain points of interest.
The formation of a bush track satisfies all of the criteria enunciated by the Federal Court in the Sensis Case (Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCA 44 (8 February 2010)): the expenditure of “independent intellectual effort” involving a “creative spark” and the exercise of a requisite “skill and judgment”.
Such works could be considered Land Art, and many famous examples of such works exist.
Case: Folly Point.
We can consider a specific case, the formation of the Folly Point track in the Budawangs. John Evans gives an excellent account of walking the track in 2010, and includes maps, kml tracks, photos and videos.At the end-point of Folly Point track there's a pass named Watsons Pass leading from the cliff line into a deep gorge. The pass was named for Colin Watson, who is held to have discovered it. Colin Watson says, in his autobiography (pp 163):
I decided to explore farther below Folly Point and to start cutting a track to this point with machetes. Glen Wilson, Bruce Ingram and Howard Dries left on Bank Holiday, 1962, weekend and took a day exploring the best way out to Folly Point, a distance of about five miles.We are given the date of creation, the authors' names, and the statement that they had to explore to find the "best way" for the track to be cut. This is a creative work requiring substantial skill and judgement, which is further proven by the fact that an entirely novel and original pass was found as part of the exploration.
State Copyright Claims
The Corang topographic map sheet contains a reproduction of the Folly Point track, over a claim of copyright by the State of NSW.I think, in view of the Sensis case, any claim to owning the copyright of Watson's track would have to fail in view of the clearly demonstrable provenance of the work. The mere compilation of the track does not confer on the publisher of the map any copyright recognised by the law of the Commonwealth.
Tracks of Ancient Provenance
Most of the tracks in the Budawangs can be traced back through the literature to Aboriginal walking tracks, bridal paths (many of which followed the Aboriginal tracks,) roads formed by timber getters in the early 1900s (and before.)In none of these can any authorship be asserted by the map making authority on behalf of the state.
The Cartographer's Art
While there is, no doubt, an art of cartography, and while I believe that a great deal of skill and judgement may be exercised in the recognition and recording of geomorphological features such as cliff lines and swamps, and land cover, it is certain that a map maker cannot claim authorship of all features recorded on a map they draw - even more so when the systems used to produce the map are "designed to limit originality, not provide for it" (Federal Court Judgement, above.)When we subtract (from a topo map) contours (derived from DEM models) water features (derived from DEM and hydrological models) tracks and trails (created by someone other than the map maker) there's not a whole lot left.
Indeed, anyone having the necessary permissions from landowners should be free to go out and resurvey, drawing his own map (and presumably exercising skill and judgment to the extent that a cartographer does so. (Certainly the choices of colour, the nuances of hillshading, and the placement of labels all affect the esthetics and function of a map.) The underlying facts are not the proper subject matter of copyright.
ReplyDeleteA track is a matter of function at least as much as it is of artistic expression (if we ignore such things as corn mazes, which are intended as works of art). I'd question the extent to which its route is the proper subject matter of copyright; obviously, any creative expression in describing or mapping it is much more likely to be copyrightable.
There is a bit of a sticky area in the law concerning the rights that vest in the owners of otherwise unprotectible works. If the owner of a public-domain work (for instance, a painting) allows access to it only on condition that the viewer not attempt to make copy, and then asserts that there is original creative expression in copies that the owner offers for sale, can he claim copyright in the copies - thus extending the period of protection of the original? (Can such an owner even destroy the original, to reset the clock entirely?) If a trail be a work of art, could a landowner similarly grant access only if the hiker promises not to create a derived work such as a map or a narrative description?
Might a cut or fill that alters the topography of the land be a work of art? Is a DEM model showing that artefact a derivative work thereof?
I'm afraid I've more questions than answers.
The Oz copyright act defines a work of art in terms like "a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not" so the tests appear to be independent intellectual effort, creative spark, exercise of requisite skill and judgement. This neatly avoids questions of aesthetic merit. Insofar as the track as made modifies the environment, I think it could be argued to be a sculpture. Insofar as the route-maker has a choice, I would argue it is an exercise of skill, and at least as creative as choosing a particular colour for the track's representation on paper in map form.
ReplyDeleteIf a hiker walks a track, then they are engaged in a performance, much as a dancer performs a choreographed work. One could presumably say that a GPS track derived from that performance is a recording, and covered by its own copyright.