Does copyright prevent Notre-Dame de Paris to be rebuilt after its devastating fire?
The fire at the Notre-Dame de Paris Cathedral is an international tragedy. The blaze destroyed the remarkable creations of the human genius, the incarnation of the historic continuity of generations.
Addressing the French nation, President Emmanuel Macron announced that the cathedral would be restored and said that its restauration was “part of the historic destiny of France”.
A full reconstruction of the entire cathedral up to the smallest details is a complex process not only from the point of view of architecture and history, but also from the point of view of intellectual property law.
The construction of the cathedral started in 1163 and took almost two hundred years to complete. Certain elements of the structure, including those damaged by the fire, were added or modified later, up to the XXI century.
The restauration of the burnt down parts of the cathedral will be most probably based on their detailed description by art experts, architects and writers, in particular, by Victor Hugo in his novel Notre-Dame de Paris.
Some parts of the cathedral may be restored with the help of photographs and videos shot by the custodians and the visitors of the cathedral in the years preceding the fire.
In addition, at least two digital copies of the cathedral that reproduce the finest details of the structure exist today.
One of these digital copies was created by Dr. Andrew Tallon, art historian. Using 3D laser scanning, he obtained a three-dimensional digital copy of the building which, he claims, contains all the smallest elements of the surface and the internal structure of the cathedral.
The other copy is the work of Caroline Miousse, assistent artistic director a Ubisoft, developed for Assassin’s Creed Unity computer game.
Media sources point out certain discrepancies between the electronic copies and the original design of the cathedral. For instance, in order to make the game more entertaining, some visual changes were made to the model used in Assassin’s Creed Unity.
For the purposes of the game, the cathedral was not simply re-created in a digital form, but adjusted for the players navigation. For example, they can get on the very spire of the virtual cathedral, the one that was destroyed by the recent fire.
From a gameplay perspective, we had to change the inside a bit just to add several layers of navigation. It’s not enough to simply re-create the monument. People need to be able to have fun when they play around on and in it. We’re making a game. It has to be enjoyable. It was very important for us to adapt a monument like Notre Dame into a positive gameplay experience so the players can have some truly incredible moments.
From the interview with Caroline Miousse [http://blog.ubi.com/en-GB/assassins-creed-unity-notre-dame/].
Other details, such as the central organ of the cathedral, were modified due to the copyright limitations that existed at the time the digital copies were created.
For instance, the way the central organ looked at the time of the fire dates back to the XX century.
The main property law issue is the following: do the restorers who seek to re-create the cathedral up to the smallest details with the help of the digital copies have to obtain a permission or consent of the authors of digital copies?
Another question is whether the visitors of Paris will have to get a permission to take pictures of the cathedral as a newly designed object once the reconstruction will have been completed.
This issue concerns tourist merchandise producers, too: will they have to get a license to use the image of the restored cathedral on the pins and magnets produced after the completion of the reconstruction?
The answers to both questions are quite complicated. Let us try to figure them out.
Concerning the parts of the Notre-Dame that were spared by the blaze and that will not be modified during reconstruction, no restrictions under the current legislation will apply.
As for the elements that were partially damaged, the issue of copyright and rights for the design will only arise if the appearance of these elements is modified, and provided that these modifications require the use of the digital copies of the cathedral, of the descriptions provided by experts or photographs made by visitors before the fire.
Two- and three-dimensional copies (digital images, descriptions, photographs, and videos) will be required for the restoration of the parts of the cathedral that were annihilated by the fire.
Do the creators of such copies hold copyright that might prevent the restorers from using the copies?
It depends on which copies will be used by the restorers.
As a rule, copies created by experts or visitors might be recognized as copyright or design right items provided that the making of the copy is an act of creation.
For instance, the photograph of the cathedral’s structure from a specific angle or with specific light that conveys a definite meaning to the author or the viewer might be recognized as an act of creation.
Similarly, the exterior of the cathedral and its parts contained in a three-dimensional digital copy will be protected by copyright only if the images of the structures were creatively processed (by adding graphic elements, including modified ones; text or any other objects).
This means that the restorers will only need the consent of the authors of the copies if:
(1) the authors completed an act of creation when making the copy;
(2) the restorers plan to use graphic and design elements added by the authors of the copies.
If as the result of the cathedral destruction no proof is preserved as to what a particular element of the structure looked like, the author of the copy may claim that the appearance of the copy is the fruit of the author’s personal creation, with copyright of the author presumed.
The restorers will probably use individual images and designs from several sources (copies of the cathedral), process and re-create them.
At the same time, if one or few copies of the edifice are selected as the basis for the reconstruction, there is a risk of infringing on a different kind of intellectual property: neighbouring rights.
The European legislation, which is in force on the territories of the EU member-states, recognizes the neighbouring rights of the creators of databases. Databases are most often defined as considerable volumes of information collected by specific authors who have put significant effort in their creation. A full digital copy of the cathedral put together over several years may well be seen as an object of neighbouring rights of the author such a copy.
Generally, the use of a significant part of such a “database” requires a permission of the author. From this perspective, if the cathedral is restored with the help of the detailed description of the edifice contained in the game Assassin’s Creed Unity, then the permission of the creators of the game will most probably be necessary.
Thus, the restorers will have to demand the permission of the authors of the digital copies only if they need to use a major part of such a copy for the restoration of Notre-Dame de Paris. For example, this will be the case if the spire of the cathedral that perished in the fire is restored solely based on the description and the appearance contained in one of the digital copies.
A similar approach may be applied for the recreation of the stain-glass windows destroyed by the flames.
According to the latest news, the central rosette of Notre-Dame de Paris was luckily only slightly damaged, and most of it was preserved.
If this information is confirmed, no permission will be required for its restoration.
The approach described above can be applied to the production of tourist merchandise featuring the restored cathedral. If such items bear the images of the elements of the edifice that reflect the partial creative idea of the authors of the copies, or the images of complex parts of the cathedral that required considerable effort of the authors of the copies or of the parts of the cathedral that were preserved, provided that they were created in the XX-XXI centuries and are still protected by intellectual property right, then the use of such elements for merchandise might require getting the permission of the authors.
But if merchandise items present just the exterior view of the cathedral (the two towers that were left undamaged, preserved parts of the façade), no permission will be required.
The Notre-Dame de Paris Cathedral will be restored whatever licenses or official permissions might be needed.
Notwithstanding the copyright or neighbouring rights that might protect its image.
It will be restored simply because it represents so much more than just a personification of the history and the love of the millions of people across the globe, it is the very essence of History and Love.
But it is doomed the age of the cathedrals.
At the gates of Paris fair.
Oh let them in, these pagans and these vandals.
A wise man once said.
In two thousand, this world ends.
[Le temps des cathédrales/ ‘The Age of the Cathedrals’, Notre Dame de Paris musical]
Text except quotations: Igor Nevzorov, Translation: Ekaterina Bereznikova