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Works of Artistic Craftsmanship in the High Court of Australia: The Exception as Paradigm Copyright Work

In Burge v Swarbrick, the High Court of Australia delivered an important decision on the most elusive of works protected by copyright: the work of artistic craftsmanship (WAC). Drawing on the history and reasons for that protection, and adopting the analysis of Lord Simon in Hensher, the Court affirmed the orthodox view that such works have 'special status' in law on account of their 'real artistic quality'. In its judgment, whether a work has that quality depends on whether it is a work of craftsmanship the artistic form of expression of which is sufficiently 'unconstrained by functional considerations'. In this paper I consider that view, and other aspects of the Court's decision. I suggest the requirement for artistic quality is simply a requirement for a WAC 'not imaginary, unreal or apparent only'. Further, the properties of this type of work are better conceived in historical terms than the formal aesthetic terms of the Court. On this view, whether an object is a WAC depends on both its properties of form and the history of its individual production, meaning the (subjective) intent of its individual author and view of society with respect to its nature. The same view finds support in the reasoning in Burge, and is consistent, too, with the judgment in Hensher, as well as more recent UK cases. As those cases reflect, even conceived in historical terms, WACs are not exceptional works but rather paradigmatic works, contrary to the orthodox view above. The fact that they are functional too does not lessen their need for artistic quality, undermining the support of previous cases, including Desktop Marketing Systems, for extending the statutory categories of works to ensure that functional considerations do not constrain the scope for legal protection.