Too Much Drama Defining Film in UK Copyright Law

: In Norowzian v Arks Ltd. (No.2) the Court of Appeal determined that the Copyright, Designs and Patents Act 1988 protects films as dramatic works. What, conceptually and in practice, this means is not clear. This article examines and compares the history of film with the definitions of film in the Berne Convention and UK copyright laws to argue that practical and legal definitions of film were already diverging when the Copyright Act 1911 was enacted. It contends the continuing divergence between film and its legal classification in copyright law develops from the underscoring aesthetic theory on which classifications from the 1911 Act onwards depend. Establishing the classifications in CDPA 1988 on an alternative aesthetic theory could better accommodate filmic expression.

protected in Part I.' 16 Films can be more than fixations of antecedent works, they can be original works.
By limiting film to Part II works in the 1956 Act, legislators aimed to eliminate the restricted classification of film in the 1911 Act. The 1952 Gregory Report, which informed the 1956 Act and responded to the 1948 Brussels Act of the Berne Convention, notes that The Copyright Act of 1911 in Section 35 (1) includes 'any cinematographic production' in its definition of a 'dramatic work' but apparently only 'where the arrangement or acting form or the combination of incidents represented give the work an original character'. The difficulty of deciding what constitutes originality in such cases must be manifest; on any definition some types of film, e.g., newsreels, would seem to be deprived of copyright protection, though there seems to be no equitable reason why they should be. 17 The Gregory Report recommended removing film from Part I works, reasoning that films and gramophone records align 'more closely to industrial products than to original literary or musical works'. 18 'At the best, the record or film has called forth in its production a measure of artistic skill, but there is always a great measure of what is only technical and industrial in its manufacture'. 19 It proposed protecting film only as the material artefact, and assigning ownership to the entrepreneur, or producer, following The Cinematograph Films Acts of movements, irrespective of the technique by which this movement is retrieved or expressed, this communication in movement being the "performance".' 24 Kamina concludes 'the final cinematic work is not the mere performance of the script, but its visual translation, interpretation, that is, a new derivative work.' 25 This definition distinguishes between a film as a recording of a dramatic work and a film as a dramatic work. But what is this 'new derivative work'? Film is not just a means to 'retrieve or express' movement, it is itself the constructed artefact of which all of its formal properties are available to compose an expression. A film may not necessarily be a derivative work nor rely on 'action and movement' for its expressive content. Such redefinitions as those by Nourse LJ and Kamina alter the terms of the debate without resolving the problem.
Buxton LJ's comments in Norowzian (No.2) are helpful. He agrees with Nourse LJ that CDPA 1988 protects films as dramatic works, but follows different reasoning. 26 Echoing The Gregory Report, he contends that classifying films as dramatic works risks excluding works that should be protected, yet he accepts this classification pragmatically.
[I]f the 1988 Act is to be interpreted consistently with this country's international obligations under the [Berne] Convention, the cinematographic works referred to in the convention have all to be included within the Act's category of dramatic works: even in cases where the natural meaning of 'dramatic work' does not or might not embrace the particular film in question. Nourse LJ, Buxton LJ, and Rattee J disagree about whether the meaning of 'dramatic work', as it applies to films in CDPA 1988, is 'natural and ordinary' or 'forced'. This is hardly surprising. The Whitford Report warned about the precision of language in Copyright Acts, which legislators appear not to have heeded.
[T]he general words of description in the Copyright Act should relate more closely to the way in which those words are commonly used. As we have already mentioned in the Introduction, it is plainly not understood by a good many people that many of the words used in the Copyright Act have a meaning, arising from definition and interpretation, rather different from that which would probably be given to them by most people. This sort of misdescription can lead to misconception as to the scope and extent of copyright protection. 28 A layperson would likely see as 'natural and ordinary' narrative feature films as dramas or dramatic works. This understanding differs from Nourse LJ's 'action and performance' and Buxton LJ's universal protection required by Berne. But whether one pursues a lay or legal understanding of film as a dramatic work, the classification leads to ambiguity.

The CJEU and the Autonomous Concept of Original Works
Recent European copyright directives and case law establish a supranational autonomous concept of a work across EU member states, which appears to challenge the closed list of classifications of works in UK copyright law. Central to this issue are the Information Society Directive 29 and the Infopaq case. 30 In Infopaq, the CJEU ruled that Article 2 of Infosoc harmonised across the EU 'an autonomous and uniform interpretation' of 28 Cmnd 6732 para 36. original, protected works as those that 'are the expression of the intellectual creation of their author'. 31 Paul Torremans, amongst others, argues that this ruling alters the notion of originality in UK law, from a work originating in its author to being 'the author's own intellectual creation.' 32 This has two notable consequences. First, any work that meets this definition of originality must be protected, regardless whether it fits within a category specified in CDPA 1988. 33 Second, the threshold of originality changes from skill and labour to an expression of the author's intellectual creation. An author must exercise 'free and Buxton LJ insisted that film content must fall within the scope of Article 2 of Berne and relied on the category of dramatic work to do so, even if this required stretching the definition beyond its 'natural meaning'.
As a result of Norowzian (No. 2), CDPA 1988 therefore appears to protect all original films in the UK because by fiat they fall within a protected category. However, classifying films as dramatic works, whatever definition of the category one adopts, limits which qualities justify protection, regardless whether those qualities form any given work's expressive content. This classification is too narrow to account for the possibilities for expression in film. This problem with CDPA 1988 begins with the 1908 Berlin Act. The Berlin Act introduced protection to 'cinematograph productions' in Article 14: Authors of literary, scientific or artistic works shall have the exclusive right of authorising the reproduction and public representation of their works by cinematography.
Cinematograph productions shall be protected as literary or artistic works if, by the arrangement of the acting form or the combinations of the incidents represented, the author has given the work a personal and original character.
Without prejudice to the rights of the author of the original work, the reproduction by cinematography of a literary, scientific, or artistic work shall be protected as an original work.
The above provisions apply to reproduction or production effected by any other process analogous to cinematography.
To consider the implications of the Berlin Act for UK copyright law, the UK Parliament published, dramatic works contain actions that are performed, and publishing and performance differ fundamentally. 42 What may at the time seem to have been an innocent word choice begins to illuminate the historical perception of film as a recording medium.
Commercial filmmaking in the UK was only about 15 years old when the 1911 Act was enacted. During this period film content varied remarkably, but films shared a common property: filmmakers recorded, whether actual events or scenes performed for the camera. By 1908 fictional content was increasingly popular, but these films were still typically scenes performed for a camera, whether adapted from existing works or produced solely for film.
Experimentation with the medium's formal properties for narrative and expressive purposes was nascent. To borrow Kendall Walton's term, the medium was transparent; audiences saw the drama through the cinematographic images. 43 The Dramatic Literary Property Act (1833) established protection of dramatic works in the UK. The 1911 Act extended infringement to the recording of others' dramatic works, and included in the category of dramatic works scenes composed to be recorded on film.
By 1910 the nascent developments in the expressive capacities of film started to stretch the conception of film written into the Berlin Act and the 1911 Act. While film was still used to record antecedent dramas, filmmakers increasing conceived and produced works that integrated film form and dramatic content. 44 Audré Gaudreault elucidates this shift in film, and its implications for audience address. Film is not a singular cultural practice emerging from the technology exhibited in the 1890s and developing into the movies, he argues, but two distinct cultural formations. Early commercial film to around 1915, a period he calls 'kinematography,' was principally a recording medium integrated into other contemporaneous cultural practices, including photography, fairground attractions, and the range of stage entertainments. 45 By 1915 this intermedial basis of film had largely transformed into an institutional system of commercial narrative films, characterised by internally coherent stories, narrative points of view, and continuity editing. Press 2011) 64-7. Gaudreault uses the term "kine-attractography" to highlight that this was a period of cinematographic attractions, rather than narrative coherence. I instead use the term "kinematography," the term he opted for in the title of his book, for its relative simplicity. Tonbilder films, produced by Deutsche Bioscope around 1907-1909, although such sound films were also produced in France, the US, and the UK. 47 The prevalence of these niche films was not the issue. Rather, the Gorell Committee debated film's capacity to infringe the rights in antecedent works, emphasising its understanding of film as a copying technology rather than a medium for crafting original works. 48 The Committee recognised Sarpy's concern, but felt that no special measures beyond those in the Berlin Act were required.
Discussing the Dramatic Sub-Committee's conclusions, the Committee reported that 'the reproduction by cinematography of […] dramatic pieces should be under the exclusive control of the dramatists as in clause [Article] 14 is provided [sic].' It accepts also that Article 13 grants dramatic authors 'exclusive control' to 'dramatic performances reproduced by phonograph'. 49 Neither the Berlin Act nor The Gorell Report considers the expressive qualities of film. That which is seen through the film attracts protection as a dramatic work. William Heinemann, who spoke on behalf of the Publishers' Association of Great Britain and Ireland, recommended the wording 'mechanical and other means' rather than '"mechanical instruments." This would probably protect copyright matter against future and still undeveloped forms of reproduction in which mechanism is not employed (such, for instance, as is photographic sun-printing) and would prevent the grave injustice done to copyright owners during recent years through the free use of copyright matter by such instruments as gramophones, phonographs, cinematographs, &c.' Minutes (n 42) 192. industry, a mechanical and especially commercial profession'. 52 The second rejects reducing film to its component technologies. Like other artworks, films originate in the minds of those who make them. This applies to dramatic scenes, but extends well beyond. 'When it comes to landscapes, travelogues, even current events, is it not necessary that the operator put down his camera and choose the vista, take in the effect of light, evaluate the scenery and choose the framing? In short, does he not give the work he will produce his direction and personality?' 53 Havermans also highlighted editing, scriptwriting, and acting as tasks dependent upon the thoughts of human agents. He made no grand claims for the quality of films. Rather, he noted analogies with works such as statuettes and newspaper illustrations. 'Even if a work is modest, it is nonetheless art, even if we need the aid of an instrument to create and experience Something is a work of art only if it 'presents a personal and original character,' but, he claimed, locating originality in films cannot be restricted to 'staging devices or the combination of incidents.' The conditional 'if' in the last sentence means 'the question of artistic value will be left to the discretion of the magistrates, which is a formidable danger we have always attempted to eliminate.' Article 14 also sets a different threshold for 'personal and original character' between dramatic films and 'the reproduction by cinematography of a literary, scientific or artistic work.' The former requires a discernible original quality evident in acting, staging, and incidents, while the latter, lacking this form of originality, is likely to have protection refused. 56 Havermans lamented the poor understanding of film in the law. 'Cinematography is an art of which the secrets are still greatly unknown, which leads to the misconceptions that we have encountered in certain judicial decisions.' 57 It is bad enough judges needed to make aesthetic judgements; it is worse they did not recognise, or could not consider, a film's expressive qualities beyond those taken from stage performances. Havemans did not stop there. Article 14 was all the more problematic because Article 3 of the Berlin Act resolved the question whether photography was mere mechanical reproduction or capable of a 'personal or original character' by protecting fully 'photographic works and […] works produced by a process analogous to photography.' 58 He questioned why the Berlin Act did not treat film similarly. To achieve this parity, he proposed to the Congress a motion requesting the Berne Convention omit from paragraph two of Article 14 all words following 56 Ibid. 57  In 1911, Haverman's comments the previous year were timely. What we now understand as cinema was emerging. Previously, Gaudreault explains, films were fundamentally different. Edison and the Lumières, amongst others, invented apparatuses, not cultural practices.
[T]he kinematograph was seen by its first users as a simple 'reproduction' device, one capable not of producing things, but of reproducing them as they are, as products of pre-existing cultural series. The kinematograph was used to record vaudeville numbers, magic acts, everyday scenes, living portraits, stage acts, fairy plays, and the like. 61 It is a mistake, he argues, to view kinematography as experimentation leading teleologically to cinema's natural narrative state. Doing so misconstrues the medium's first twenty years, undervalues the ways in which practitioners integrated the technology with extant culture, and mistakes subsequent contingent narrative form and institutional practices for the medium's essential properties. Méliès used the camera to enhance the fairy theatre, the Lumières to advance their photography. Neither produced cinema because it did not yet exist. 62 59 Ibid 16. 60 I do not claim the Congress' motion caused the amendment to Article 14 in the Brussels Act 1948. 61 Gaudreault (n 45) 84. Kinematographers did not merely record. They explored the capacities of the medium and developed numerous techniques such as stop motion animation and superimposition. However, they deployed these techniques to produce films that referred externally to established cultural practices rather than internally to autonomous narratives.
The shift towards institutional cinema, Gaudreault contends, began around 1907-8. substantive, protection. Article 14 bis of the current form of the Berne Convention no longer specifies the means by which a cinematographic work achieves originality. CDPA 1988, though, does not obviously follow Article 14 bis fully, since protection applies only to the aspects of a cinematographic work that meet some understanding of dramatic content, even if that content does not constitute its expressive content.

Aesthetics
Buxton LJ's comments in Norowzian (No.2) exemplify this problem. He reasons that the film 'as a whole' needs to be considered, yet he focuses on the acting and combinations of incidents.
The theme and originality of Joy was, as Mr. Norowzian's evidence stressed, a representation in stylised form of a young man hesitating with tension when coming amongst a group of unknown people but gradually gaining confidence.
That essence and originality of Joy is however, not reproduced at all in Anticipation. The drinker is not hesitant, but impatient. The only tension from which he suffers is not that of introspection, but of separation from his drink: as the advertiser of the drink no doubt wished to convey. 79 This account of these two films strips them of much of their expressive content. One could take Buxton LJ's description of Joy and produce a play, novel, or dance routine which reproduces it. Yet such a work would be so unlike Joy it would seem much further from infringement than Anticipation. Editing, lens choice, framing, frame rates, mise-en-scène, and colour are as integral to Joy as the dance. The simple story represented by the dance cannot be singled out as the film's original content with the remaining elements relegated to style 79 Norowzian (No.2) (n 4) 77. and technique. Collectively, these elements form the work's expression. Acting (including mime or dance), an arrangement of incidents, or action are neither necessary for, nor definitive of, films. In films in which these are present, they can be little more than incidental. 80 Filmic and dramatic content differ significantly. A dramatic work is typically complete at the point of composition, often but not necessarily in written form. Two companies performing the same play perform the same dramatic work, even if the performances diverge significantly. Films differ. Two films can be made from the same independent screenplay but remain discrete works. A film is not its script, nor is it a mere performance of it, but the completed work. It shares properties such as framing, composition, colour, and perspective with painting and photography; rhythm with music; narrative and narration with literature; and temporality, kinesis, and performance styles with dramatic works. Nourse LJ's assertion that a film is a dramatic work because it is a 'work of action […] capable of being performed before an audience' does not clarify matters. To say a film is 'performed' departs from the word's natural meaning. Performance results from the actions of an agent. Noël Carroll explains that the projection of a film is a mechanical task, not a performance, whereas the performance of a theatrical work is an interpretation. 81 Every film projection reproduces the same work, but every theatrical performance uniquely interprets an 80 Koyaanisqatsi (1982), for instance, has no significant combination of incidents or action. It expresses its theme of industrial society's dehumanisation through graphic, often metaphorical means, utilising devices such as long lenses and fast motion cinematography. 81 There are exceptions. For instance, Ken Jacobs uses analytical film projectors to perform live projections. However, even in such cases Jacobs does not perform films, but projects films in performances. Similarly, early kinematographic projectionists performed with films, juxtaposing films, slides, and other media, sometimes to produce thematic shows. Even here film is an element of a performance, not itself performed. antecedent work. The performance of a theatrical work is itself a work of art; the projection of a film is not, even if the film itself may be. 82 Additionally, section 180(2) of CDPA 1988 lists those activities that constitute performance, but does not obviously include film projection. It specifies that performance is 'a live performance given by one or more for time. Any distance, including no distance, an object, camera, or lens covers over a set time constitutes an action. Even a film of a photograph, taken from a fixed camera, is a work of action because it has duration. It is not a mere copy of the photograph because it determines a temporal and optical viewing experience of the photograph, as if to say 'consider this photograph under these conditions.' Frame rates allow the representation of time in all three forms of movement to be altered. Recording at a greater frame rate than the playback rate (overcranking) produces slow motion, while recording at a slower frame rate (undercranking) produces fast motion. 83 Films also can have implied action. An edit between two actions, such as getting into a car in one shot, and out at a different location in the next, 84 For more on the cinematic apparatus and perception, see Münsterberg (n 1). 85 Although I will use the term 'artworks' I do not imply works need to be works of art, only that are the kind of works protected by Article 2 of Berne.
to the law' judging the worth of works because they lack expert knowledge in the arts. If artworks 'command the interest of any public, they have commercial value […] and the taste of any public is not to be treated with contempt.' 86 In principle, legislators, like justices, intend aesthetic neutrality. In practice, they struggle to achieve aesthetic neutrality because aesthetic judgements, and therefore aesthetic theory, are unavoidable. By engaging in aesthetic judgements, Holmes J argued, those trained in the law risk conservative assessments of works based on their understandings of historical practices rather than evolving conventions. By restricting the legal understanding of film to dramatic content in 1911 and 1988, UK legislators also, even if inadvertently, classified film conservatively. is a unique combination of certain elements (the specifiable plastic ones) in their relations.' For instance, the defining property of painting 'is significant form, i.e., certain combinations of lines, colors, shapes, volumeseverything on the canvas except the representational elements.' 88 But LDMA categories derive principally from presumed function rather than form. The category of literary works requires words and other symbols, whether written, spoken, or sung, to be comprehended as things like stories, theories, or instructions, but excludes as dramatic works written works produced for performance, such as stage plays, even though they are also read and studied like works of literature. The category of artistic works includes a range of media but is limited to two-and three-dimensional static works to be presented for contemplation and aesthetic appreciation. Stasis, though, is a property of form, not itself a formal element. Moreover, this category co-opts the term 'artistic', which conventionally applies across all LDMA media. Lastly, the ambiguous definition of dramatic works and the tautological definition of musical works offer no clear means by which expression can be located in form, only function. But functionalism has an important limitation. Beardsley argues that for something to be an artwork it must be produced intentionally to appeal to aesthetic interests and experiences. Some works, though, are presented as artworks but lack the appropriate intentions. Beardsley distinguishes between 'producing art and kidding art,' the latter he contends produces no art at all. The paradigm case of kidding art is Duchamp's Fountain.
First, the intention behind its manufacture differs from its intended meaning as an artwork.
The object Duchamp repurposed was produced solely as sanitaryware. Second, Duchamp did not appeal to aesthetic interests and experiences through the work. He aimed only to comment on art and the artworld. Commentaries, Beardsley insists, are not artworks. An artist declaring something to be an artwork does not make it so. 92 Stephen Davies argues this conclusion undermines the functionalist's account. Denying Fountain art status dismisses both the extent to which artists, art historians and art critics have accepted it as a seminal work of modern art, and the influence it has had on art production. By limiting the boundaries of art, rather than addressing that which is accepted to be art, the functionalist 'cuts across the prevailing practice in a way that would appear to be legislative rather than descriptive.' 93 Beardsley provides a conservative account that aims to meet the demands of established aesthetic interests and experiences, but his theory struggles with non-standard, evolutionary, and especially revolutionary, artworks.
The 1911 Act provided historically contingent functional classifications for film, but filmmakers' intentions and practices, and therefore films themselves, were changing. By 1915 this change was largely complete. Gaudreault calls the result 'institutional cinema.' 92 Ibid 57-60.

33
The institutionalization of a medium is the product of a slow process. It is an evolutionary and diachronic process that supposes the regulation, regularization, and consolidation of the relationship between those who work in it (stability); the choice of practices that are proper to the medium in question, thereby distinguishing it from other media (specificity); and the setting up of discourses and mechanisms that sanction those relationships and practices (legitimacy). 94 have little, if any, dramatic content, however defined, to infringe. Certainly one can manufacture an account of such a work's 'dramatic' content, but doing so misses its point. It is like judging a hammer on how well it functions as a door stop. CDPA 1988 effectively excludes protection of such works prescriptively by assigning them to a category that cannot accommodate their purposes and modes of expression. Yet as UK copyright law protects all films as dramatic works, it appears to conform with Berne and Infosoc. The fault lies in assuming moving image technologies have necessarily and predominantly a dramatic capacity and function.
A more responsive theory of art on which to base evaluations of the expressive qualities of works is needed. Davies defends procedural theories of art over functional theories, the former best characterised by the institutional theory of art.
[T]he defender of the institutional view of the definition of art holds that, whether or not it meets the point of art in general, a piece is or is not an artwork in accordance with its having that status conferred upon it by someone with the authority to do that conferring. Whereas a proponent of the functional view of the definition of art holds that only a piece that could serve the point of art could become a work of art, whatever procedures were followed and whatever the artistic authority of the person following them. 99 Like the functional theory the institutional theory offers no means to evaluate the merit of a work. Rather, it explains how something qualifies as an artwork. 100 Artworks, Davies contends, are social practices within social institutions. Artists express themselves by 99 Davies (n 89) 39. utilising, and challenging, conventions recognised as belonging to a sphere of artworks. 101 Originality in art therefore necessarily builds on established conventions. Davies' criterion that a work's status is 'conferred … by someone with the authority to do that conferring' requires simply that those sufficiently knowledgeable of a sphere of artworks recognise a work as belonging to that sphere. George Dickie, a key proponent of the institutional theory, argues the theory accounts well for evolution in cultural practices. He postulates a tripart relation which constitutes an artworld. First, 'an artist is a person who participates with understanding in the making of a work of art.' Second, 'a work of art is an artefact of a kind created to be presented to an artworld public.' Third, 'a public is a set of persons the members of which are prepared in some degree to understand an object which is presented to them.' This public has '(1) a general idea of art and (2) a minimal understanding of the medium or media of a particular art form.' 102 Moreover, artworlds evolve because they incorporate social negotiations between those who produce and engage with artworks.
Davies explains that classifications can be both procedural and functional, but radical uses of conventions can cause works to diverge from established functions while still adhering to recognisable procedures. As radicality subsides, new functional understandings emerge. The 1911 Act prescriptively classified film consistently with functionalism. By protecting the dramatic works in films, it adhered to the purpose to which many films had been put, although subsequently this function and emerging cinematic practices diverged.
The re-inclusion of films into the category of dramatic works in CDPA 1988 was, as Buxton LJ indicated, fundamentally pragmatic: as a means to meet obligations to the Berne Convention. Little sense, though, has been made of the contention that films can be dramatic works, either now or prior to 1911. However, the 1911 inclusion of film in the category of artistic works, in virtue of film being a photographic technology, suggests a solution. It will be recalled that section 35 of the 1911 Act included photographs as artistic works, alongside 'works of painting, drawing, sculpture, and artistic craftsmanship', and that the definition of photograph included 'works produced by any process analogous to photography'. 103 CDPA 1988 could realign films with the category of artistic works by removing in the latter exclusions which limit consideration of that which constitutes a film's expressive content.
This proposal follows Havermans' request that Berne remove the restriction in Article 14 of the Berlin Act, which limited any film's 'personal and original character' to 'the arrangement of the acting form or the combination of the incidents represented', in order to incorporate film into Article 2 fully as a form of 'literary and artistic work', which it did in the Brussels