IP Like an Egyptian

(with apologies to Susanna Hoffs and The Bangles)

Both the IPKat and William Patry reported recently that the Egyptian government is moving to enact legislation that would impose a royalty obligation on those who reproduce ancient Egyptian monuments.  In effect, the Eygptians want to copyright the pyramids.

Jokes about popular music and comedy aside, this is only the latest move to “protect” very, very old and very public structures via copyright claims.  Last Summer, the Church of England complained that Sony failed to obtain permission to use Manchester Cathedral as a backdrop in the videogame “Resistance: The Fall of Man.”  And several years ago, it was reported that Trinity College, Dublin looked into pursuing a claim that the Jedi Library in Star Wars II: Attack of the Clones was a copy of the College Library.

It is easy to be dismissive of this sort of thing.  It is difficult to imagine how the would-be Egyptian claims would be enforceable in Las Vegas or Memphis.  Under the standard incentive-based copyright rubric, it’s difficult to construct a viable theory justifying copyright protection for monumental structures that were built centuries ago, often based largely on “standard” design shapes, styles, dimensions, and proportions, and publicly accessible ever since.  The public interest in a determination that the buildings lie in copyright’s public domain seems overwhelming.

Yet IP Like an Egyptian, as I’ll call this impulse, deserves a second look, even if it should get rejected in the end.  In at least one way, the Egyptian situation is unlike the English and Irish claims.  If the Egyptian monuments are part of the world’s heritage (they are), and if it costs a substantial amount of money to preserve them and continue to make them available and accessible (it does), then is it so clear that a copyright or pseudo-copyright mechanism is worse than any alternative mechanism for assessing and collecting that money from the citizens of the world?  Coming as they do from industrialized Western countries, the English and Irish claims lack the developed/undeveloped world theme that plays into the Egyptian case. 

Still, the English and Irish claims strike as implausible copyright matters but as interesting candidates for trademark analysis.  Not as questions of trademark doctrine (I know nothing of English or Irish trademark law, but I would be surprised if either country’s law were broad enough to apply here), but as questions of trademark interests.  The Church and the College may not have been interested in restricting unauthorized copying.  Rather, they may have been motivated by the desire to protect the distinctiveness — uniqueness, even — of a specific cultural asset.  In the US, the anti-dilution statute aims at something of the same object, though as the Rock ‘n’ Roll Hall of Fame and Museum learned, managing the structure of a building as a mark can be a tricky thing.  The cultural distinctiveness of the building itself isn’t necessarily the same thing as the distinctiveness of the building’s appearance.