45 work – not the concept behind it,” says Mark Pearce. “Copyrighting a Cape hole is impossible; the concept is not protected. It is the actual design that is protected. To an extent, when you are working with what is on the ground, no matter how many bulldozers you use, you are copying a concept rather than the expression. And to be protected by copyright, a work has to be original, and copyright only subsists in those parts that are original. European copyright law protects an artistic work for 70 years after the death of the creator. So, Harry Colt’s courses went out of copyright three years ago, given that he died in 1951!” Given the 1990 cut-off date, and the sheer quantity of Redans, Edens, Biarritzes and the like that were built before that date, it is patently obvious that lovers of such classic holes should have no fears that the construction of new ones might be banned!” A recent example featuring a classicera course does illustrate the kind of issues that copyright protection of golf course designs might prevent. The reconstruction of CB Macdonald’s Lido course by a team headed by Tom Doak, using detailed data of the original contours – which was programmed into GPS-controlled machinery to shape the new course – would be extremely problematic had the original course been designed after the 1990 cut-off date. “I think it’s difficult to copy something exact in most cases. I would never want to do that, but I have done interpretations of template holes as have most GCAs,” says Jim Wagner of the newly-formed Curley Wagner firm. “Lido is obviously a case of copying something in its entirety but was done in the greater good of the game and to allow golfers to experience that all these years later is simply incredible. Tech is great in that sense. “Let’s say a developer says, ‘I like this course’, goes and flies a drone over it, and replicates it somewhere else in the world: that would be actionable,” says Forrest Richardson. This seems uncontroversial, but perhaps slightly unlikely: there has not, as far as I am aware, been any flood of such courses, though replica courses do exist in reasonable numbers, and these would presumably be impossible to build under the proposed law, unless the developer negotiated a satisfactory deal with the copyright holders. “If I owned a classic course, and I wanted to get protection, I would trademark the name, and not worry so much about copyrighting the design,” says Pearce. The replica Lido course at Sand Valley would not be impacted by the Birdie Act Photo: Kevin Murray BIRDIE BILL
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