Monday, 27 April 2015

Virtual restoration of Mosul Museum to help track looted items

An EU-led initiative plans to virtually restore the artefacts damaged by ISIS at Iraq’s Mosul Museum. Using crowd-sourced images to recreate lost and destroyed items, researchers hope that these 3D ‘virtual museums’ will aid efforts to identify and track down looted items.

Project Mosul is a collaborative effort between researchers from the ITN-DCH (Initial Training Network for Digital Cultural Heritage: Projecting our Past to the Future), EUROPEANA SPACE and 4D-CH-WORLD projects. The project was launched two weeks after a video was released on Youtube showing the sacking of Iraq’s 300-year old Mosul Museum by Islamic State. Extremists filmed themselves using sledgehammers to destroy a series of ancient sculptures - some almost 3,000 years old and dating from the Assyrian Empire.

Screen shot of the video released by Islamic State (Image: YouTube)
The project website reads: “We assume that much of the museum's contents were looted, and anything small enough to be easily removed will be appearing soon on the antiquities market. Anything too large to remove for sale, appears to have met a violent end at the hand of ISIS extremists. In both cases, it is possible to virtually recreate the lost items through the application of photogrammetry and crowdsourcing. Given enough photographs, digital or scans of analogues, it is possible to reconstruct the artefacts and create digital surrogates of those artefacts. This provides two immediate benefits: helping to identify looted items and recreating destroyed items.”

Importantly, the project team also points out the importance of keeping the memory of these objects and their meaning alive, rather than seeing virtual reconstruction as an end in itself. For communities faced with loss of their cultural heritage, this project will provide a tool to preserve, disseminate and re-engage with their history.

However, the Mosul Museum has been closed since the outbreak of the Iraq war in 2003, meaning that relevant images can prove very difficult to locate. Pictures of the destroyed museum objects, including Assyrian and Hatrene artefacts, will be retrieved from Open Access repositories of FLICKR and PICASA, the EU digital library Europeana and anyone else willing to contribute images of their own. These 3D reconstructions will then be presented in an online museum where the data will be freely accessible to the public. 

Reconstruction of lion statue destroyed by the Islamic State
(Image: ingg/Sketchfab)
The team is calling on volunteers to help them with a variety of tasks: finding photos, processing data, contributing to the website and generally helping out with organising the effort to identify the museum artefacts.
To get involved, visit the Project Mosul website:

Tuesday, 21 April 2015

The dirty side of artistic copyright: septic tank technical drawings are artistic works says the UK privy council

It's all hands to the pump if the septic tank stops working...
Judges are not art critics.  For that reason, the definition of an 'artistic' work has traditionally been given a fairly generous interpretation by the courts, the view being that it should not be for a judge to decide what is and is not 'art'.  That said, not everyone would suspect that even the drawings for something as prosaic as a septic tank could become a battleground for testing the limits of artistic copyright.

For various historical reasons the final court of appeal for the Bahamas (and much of the Caribbean) is still the UK's privy council. This means that various UK judges occasionally provide the final word on cases which involve different laws and parties located thousands of miles away. Gold Rock Corp Ltd v Hylton is such a case.

The first instance judge made a pretty unequivocal finding of copying but Hylton had successfully argued (at his first appeal) that he could not have infringed copyright as technical drawings of septic tanks were not artistic works within the meaning of the Bahamian Copyright Act.

The relevant sections of the act are set out below.

Section 2(1) defines "artistic works" as follows:
'artistic works' include two-dimensional and three-dimensional work of fine, graphic and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, architectural plans and technical drawings.
Section 2(1) contains a further definition:
'useful article' means an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or convey information and an article that is [not] normally a part of a useful article is considered a 'useful article'
Section 2(1) also says"the terms 'including' and 'such as' are illustrative and not limiting."

Finally section 2(3) states that:
The term 'artistic works' as defined in subsection (1) shall include works of artistic craftsmanship in so far as their form but not their mechanical or utilitarian aspects are concerned; and the design of a useful article, as defined in this section, shall be considered an artistic work only if, and only to the extent that, such design incorporates artistic features that can be identified separately from and are capable of existing independently of, the utilitarian aspects of the article.

A lot of time appears to have been spent debating whether or not technical drawings for a septic tank were a 'useful article' within the meaning of section 2(3).

The privy council noted that a technical drawing is not a useful article in itself (although septic tanks are undeniably useful items!) and thus would not fall within section 2(3).  Their view was that:
  1. section 2(3) concerned three dimensional objects like works of artistic craftsmanship and non-utilitarian design; and 
  2. the section actually widened the definition of artistic works by including things like works of artistic craftsmanship which were not explicitly set out in the definition of artistic works at section 2(1). 
As septic tank drawings fit squarely within the definition of 'technical drawings', and no other exceptions applied, they were protected by Bahamian copyright law.  The finding of infringement then easily followed (amongst other things the Hylton copy had reproduced spelling mistakes in the original drawings).

Whilst the decision may not have a direct bearing on other jurisdictions, the board did take into account various US authorities for the proposition that even if a septic tanks' technical plans do not offer the author protection to stop reproduction of the septic tank itself, they do offer protection against copying of the plans themselves.  The rationale for looking at US case law was that both US and Bahamian law are derived from the Berne Convention and implement it in a similar way.

It is also worth bearing in mind that there is considerable overlap between the members of the privy council and the UK's Supreme Court and Court of Appeal.  So whilst the Bahamian Copyright Act is different to the UK's Copyright Designs and Patents Act it offers an insight into the court's possible interpretation of technical drawings in the the future.

Saturday, 11 April 2015

Henderskelfe: Back from the dead

The long-running tax dispute over Sir Joshua Reynolds' Portrait of Omai, sold at auction for £9.4 million in 2001, finally came to an end earlier this year. The last judgment found for the taxpayer, confirming that no capital gains tax was payable in respect of the sale. Later HMRC was refused permission to appeal the decision – and the story was over.

The result was a valuable win for that particular taxpayer. But, perhaps more concerning for HMRC, it also left the door open for other owners of artworks to create, or take advantage of, a scenario similar to that of Henderskelfe. If an owner loaned an artwork to a business (such as a gallery or stately home open to the public) and, some time later, ended the loan and sold the art work, they too might be able to avoid giving rise to a liability for capital gains tax on the sale. This is because the art work, being in long-term or permanent use by a business, could qualify as "plant" under case law tests, which in turn would mean that it qualified as a "wasting asset" for capital gains tax purposes - and sales of wasting assets do not give rise to capital gains tax. While this specific scenario might not be commonly used, the amount of tax at stake could be high as a result of the high value such an artwork might carry.

But with the publication of Finance Act 2015, it looks as though HMRC has risen from the dead to block this possibility. As of 6 April 2015 a change to the law will aim to prevent a recurrence of Henderskelfe. The key to the change is that the owner of an artwork can no longer loan the artwork to a third party business and benefit from the wasting asset exemption. "To qualify for the capital gains tax exemption for gains accruing on the disposal of certain wasting assets," HMRC states, "an asset must have been used in the business of the person disposing of it".

This means that if an art owner ran their own business of (say) opening their stately home to the public, and a painting they owned was on display in that house for the public to see, then the wasting asset exemption might still be available. But loans to other businesses will not be enough to give rise to a capital gains tax exemption.