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Abstract

The AWCPA has been in effect for thirteen years, enough time for an evaluation of its effect on those who have been working within its framework. Has the Architectural Works Copyright Protection Act of 1990 (AWCPA) met the public's interests by encouraging original and innovative design? U.S. intellectual property laws are founded on balancing benefit to the public with reward and incentive to the author, while the standards of protection under the Berne Convention are grounded in the principle that copyright is a natural right of the author. The AWCPA of 1990 adopted the Berne Standard of according protection to architectural works, but excluded the right of the architects to control additions or corrections to their buildings after their completion. protection for an artist's work against subsequent modification, distortion, or destruction specifically does not apply in the field of architecture. Because it specifically excludes this protection against modification or destruction, the AWCPA is only in partial compliance with the Berne Convention. Can a building be protected as such, and if so, could trademark protection belong to the building's owner or the building's architect? In this respect, the protection is one of property rather than creativity. Could trademark laws provide a better basis for protection? Intellectual property protection traditionally balances the interests of the public and the authors or inventors. The AWCPA also recognizes the interests of the building owner. This variance from the Berne Convention achieves a balance between the property interests of the building owner and the intellectual property interests of the copyright owner. Unlike the Berne Convention, the AWCPA does not include the architect's exclusive right to make or authorize two-dimensional representations of the copyrighted work, which some argue is a violation of the Berne Convention and an unfair restriction on architects' rights to profit from other forms of their architectural works. the very purpose of extending copyright protection, to spur more creativity and provide the public with a greater variety of architectural design, would be compromised by the broad scope of protection. In determining the scope of protection, the courts refer to the two-step test to distinguish between architecture and mere construction: First, an architectural work should be examined to determine whether there are original, artistic elements present. If so, a second step examines whether the original, artistic elements are functionally required. If the elements are not absolutely functionally required, the work is protectable. How the courts will interpret functionality versus the artistic aspects of architectural elements has yet to be decided. These are the types of concerns that will continue to be voiced as long as a clearly defined scope of protection is unavailable. Since its enactment the AWCPA has been interpreted as having a broad scope of protection. The AWCPA is successfully being used to provide some copyright protection for bread-and-butter architects. The need for compliance with the Berne Convention has been met in the least restrictive, yet still conformable compromise the legislature could enact. Unless the courts veer radically from the scope of protection they have thus far chosen to employ, there is no need for Congress to address additional legislative action to expand architectural copyright protection under the AWCPA at this time.

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