Annaliese Wren, PhD Candidate and Graduate Teacher, University of Bristol

When we think about art in relation to copyright in the UK, there may be a temptation to restrict what we perceive as artistic to a literal interpretation of the categories contained in s.4 of the Copyright, Design and Patents Act 1988 (‘CDPA’). These include mediums such as graphic works, sculpture or a work of architecture. These categories have largely been interpreted as ‘closed’ by both academics and the UK judiciary.[1] UK copyright, therefore, risks marginalising certain creative individuals due to its lack of clarity surrounding the CDPA, alongside a closed list which may exclude more contemporary mediums from protection. An example are tactile artistic works. These are works which are created with the intention of touch; the artistic experience comes from touching, rather than visually observing the artistic work.

S.4’s closed categorisation has historically been regarded as incompatible with CJEU case law.[2] Until 31^st December 2023, the UK Courts had begun to interpret s.4 broadly due to CJEU cases such as Infopaq, Cofemel and Levola. The CJEU’s more open interpretation of a ‘work’ had the potential to encompass a variety of artistic expressions, such as tactile works. However, the Retained EU Law (Revocation and Reform) Act came into force on 1^st January 2024. Any retained EU Law must now be read in a manner which is compatible with domestic law.[3] This seems to suggest perhaps a move toward a more rigid, pre-Infopaq, closed categorisation of s.4. This is an issue for more novel forms of artistic expression, and effects not only tactile artists but also conceptual and performance artists etc by analogy.

At the SLSA Conference 2024 I introduced the Portsmouth artist Clarke Reynolds’ ‘Journey By Dots’ (2022) as an example of a work which incorporates Braille.[4] The visual result of this work is unique pattern of coloured Braille dots. This element of the work falls into the genus of the types of graphic works listed in s.4(1)(a), being the addition of something to a surface. However, certain parts of the Braille are painted black, meaning only when the work is touched can the full artist’s intention and story be understood. It is more than just a visual work. John Latham’s ‘Full Stop’ as adapted for the Tate Sensorium Exhibition at the Tate Britain in 2015 provides another example.[5] The canvas in this work comfortably fits within s.4(1) as a graphic work, being a painting. The tactile sensations transmitted via the plinth in front of the work, like the Braille in Clarke’s work, do not necessarily fall within the types of work listed in s.4(2)(a) or (b).

Tactile sensations transmitted onto the skin, either by running a body part over Braille or via haptic sensations, have the effect of creating a small indentation on the skin which transmits a tactile experience to the brain. It may be better to argue that tactile artistic works fall under s.4(2)(b), holding analogies with works that requires the removal of a surface. In Hi-Tech Autoparts the removal of the metal from the plate created a permanent indentation upon the surface.[6] Likewise, the tactile sensation from Clarke and Latham’s work creates an indentation, albeit only a temporary one. This shows tactile elements of the works may have the potential to exist under s.4(2)(b).

The issue with the above analysis, and the CDPA’s catergorisation, is that it appears to split Clarke and Latham’s work depending upon which elements are to be protected. It would be illogical to suggest a tactile artist should have two copyrightable works within their piece: one visual and one tactile.

In Interlego, Lord Oliver stated the essence of an artistic work is that which is visual significance.[7] This sentiment was applied by H.H.J. Birss (as he then was) in Abraham Moon who held that the configuration of numbers and words in the ticket stamp was a ‘record of the visual appearance’ of the fabric design.[8] It was a tangible expression of the artists idea. Birss added in a stipulation that this expression must be the artists visual idea, demonstrating a visual bias within artistic copyright.[9] If we are looking for a work which conveys ‘visual significance’ or serves ‘to record the visual appearance’ or impression an artist wanted to create this excludes the tactile element of a work from copyright protection.[10] This idea of a visual requirement was affirmed in THJ, where Arnold LJ held that ‘the enquiry concerns the visual appearance of the charts’.[11] To suggest that tactile artists create a visual image in the mind of someone with a visual impairment, akin to the ticket stamp in the hands of a fabric designer in Abraham, would involve taking an able-bodied approach to the issue. Tactile works should not be interpreted in line with amounting to a visual record when that goes against the essence of their creation and being.

The implications of these cases are that only the visual elements of a work seem to be capable of amounting to a copyrightable work. Current copyright provisions post-REULA are therefore not sufficient to protect an artistic work, being a graphic work, which is either both visual and tactile or purely tactile. For works such as Full Stop, the tactile element of this work was temporary as it existed only within the Tate Sensorium Exhibition. In this case the work can be appropriately divided: the 1961 painting which is a graphic work under s.4, and the tactile 2015 version which cannot be protected currently. Both are intellectual creations and there appears to be no good reason why one should fail to exist as a copyright work simply due to its tactile nature.

The argument for extending copyright protection to tactile artistic works is not just a theoretical debate but the desire to strive for inclusion and equal participation in cultural life for all. By recognising tactile artistic works within copyright law, and opening the s.4 categories, we may take a step toward a more inclusive and equitable legal landscape that values and embraces the diverse expressions and perspectives of all individuals.

Thumbnail Picture: Image of Clark Reynolds and his work (credit Clark Reynolds and Aspex Gallery).

[1] See Jason Haynes, ‘Subject Matter of Copyright Protection in the UK: A Road Map to Effectuating Statutory Reform’ (2013) 39 Commonwealth Law Bulletin 319; Eleonora Rosati, Copyright and the Court of Justice of the European Union (2023); Neil Yap, ‘The proof is in the plating: copyright protection of culinary arts and reform for the categories of authorial works’ [2017] EIPR 226; Anne Barron, ‘Copyright Law And The Claims Of Art’ (2002) 4 Intellectual Property Quarterly; Simon Stokes, Art and Copyright (Bloomsbury Publishing 2021.

However, Mysoor disagrees with this perception. Poorna Mysoor, ‘Does UK Really Have a “Closed” List of Works Protected by Copyright?’ (2019) 41 European Intellectual Property Review.

[2] Rosati, 322-323; Response Clothing Ltd v Edinburgh Woollen Mill Ltd [2020] EWHC 148 (IPEC), [27].

[3] S.3(1) Retained EU Law (Revocation and Reform) Act 2023.

[4]  ‘Journey By Dots, Clarke Reynolds’ (Aspex Portsmouth, 2022) https://aspex.org.uk/exhibition/journey-by-dots-clarke-reynolds/ accessed 12 January 2023.

[5] Nicola Davis, ‘Don’t just look- smell, feel, and hear art. Tate’s new way of experiencing paintings’ (The Guardian, 22 August 2015) https://www.theguardian.com/artanddesign/2015/aug/22/tate-sensorium-art-soundscapes-chocolates-invisible-rain accessed 17 February 2023.

[6] Hi-Tech Autoparts v Towergate Two Ltd [2002] F.S.R. 15, [6].

[7] Interlego AG v Tyco Industries Inc [1988] 3 W.L.R. 678, 258.

[8] Abraham Moon & Sons Ltd v Thornber & Ors [2012] EWPCC 37, [103].

[9] Ibid, [102].

[10] Ibid, [103].

[11] THJ Systems v Sheridan [2023] EWCA Civ 1354, [24].