The public display right in section 6(1)(g) of the Copyright and Neighbouring Rights Act 2000 would otherwise mean that hanging a purchased painting in a public place required the artist’s permission. Section 16 prevents that.
Section 16 — public display
Notwithstanding section 6(1)(g), the public display of originals or copies of works may be made without the authorization of the author, provided —
(a) that the display is made other than by means of a film, slide, television image or otherwise on screen or by means of any other device or process; and
(b) that the work has been published, or the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title.
Condition (a) — direct display only
Look at the definition of public display in section 2. It covers showing the original or a copy (a) directly; (b) by means of a film, slide, television image or otherwise on screen; or (c) by means of any other device or process — and, for an audiovisual work, showing individual images non-sequentially.
Section 16(a) excepts everything except limb (a) of that definition. In other words, only direct display is permitted. Any display by film, slide, television image, on screen, or by any other device or process remains within the owner’s exclusive right.
| Display | Within section 16? |
|---|---|
| Hanging a purchased painting in a hotel foyer | Yes — direct display of a transferred original |
| Exhibiting a bought sculpture in a public garden | Yes |
| Displaying a published poster on an office wall | Yes — the work has been published |
| Projecting an image of the same painting on a screen | No — excluded by condition (a) |
| Showing a photograph in a slide presentation | No |
| Putting an image on a digital display board | No — on screen |
| Putting an image on a website | No — and separately a communication to the public under s 6(1)(j), which s 16 does not except |
| Displaying an unpublished manuscript never transferred by the author | No — condition (b) fails |
A physical original or copy can be in one place at a time, and the audience is limited by the room. A screen display can be reproduced, enlarged, repeated indefinitely and shown to any number of people, and it is usually preceded by a reproduction in digital form — itself an act within section 6(1)(a).
Note that section 9 may cover the incidental copies made in the process of displaying a digitally stored work — but only where the person is entitled to make that transmission or making perceptible. Section 16 does not supply that entitlement for screen display, because it expressly excludes it.
Condition (b) — published, or the copy transferred
The work has been published — defined in section 2 as tangible copies made available to the public in a reasonable quantity for sale, rental, public lending or other transfer, with the consent of the author or owner; or
the original or the copy displayed has been sold, given away or otherwise transferred to another person by the author or his successor in title.
Most paintings, carvings and sculptures are never published in the section 2 sense — there are no tangible copies made available in a reasonable quantity. They are single works.
Condition (b) therefore turns on the second limb: the original or copy must have been sold, given away or otherwise transferred by the author or his successor in title. Once the artist has parted with the physical work, the person who has it may display it directly in public.
The corollary is that a work the author has not parted with cannot be publicly displayed without permission — which protects an artist against unauthorised exhibition of works still in their hands, or taken without transfer.
Buying a painting transfers the physical object. It does not transfer copyright: under section 20(2), an assignment must be in writing signed by both parties, and under section 20(3) nothing passes that is not explicitly referred to.
So the purchaser of a painting may display it under section 16, but may not reproduce it (s 6(1)(a)), adapt it (s 6(1)(c)), put photographs of it online (s 6(1)(j)), or make and sell prints of it. Those remain with the artist.
Moral rights still apply
The moral rights in section 7 are unaffected, and under section 7(2) they apply whether or not a person no longer owns the rights in the work.
Section 7(1)(a) — the author has the right to have their name indicated prominently in connection with any public use of the work. Public display is a public use, so a displayed work should carry the artist’s name.
Section 7(1)(d) — the author may object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the work which would be prejudicial to his honour or reputation. That reaches the manner of display, not only alteration of the work: exhibiting a work in a demeaning setting, or altered, cropped or defaced, may engage the integrity right even though section 16 permits the display itself.
These rights can be waived, but only by a writing that complies with section 7(4) and (5) — specifying the rights waived, the circumstances, and for the integrity right the nature and extent of the modification permitted.
A different rule for folklore
Section 16 applies to works. Expressions of folklore are protected under Part V, and section 30(1) protects them against reproduction, communication to the public by performance, broadcasting, distribution by cable or other means, and adaptation, translation and other transformation where those uses are made for commercial purposes or outside their traditional or customary context.
The exceptions in section 30(2) are narrower than the Part II free uses: personal use, short excerpts for reporting current events, and face-to-face teaching or scientific research. Anyone displaying carvings, textiles, masks or other traditional material commercially should work through Part V and the consent of the competent authority under section 30(4), not section 16.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 6, 7, 9, 16, 20, 30
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.