Regarding legal and technical impediments to doing an exact copy of a course:
--first, my sense is that if you have permission from the owner of the course to be copied, with enough $$ (and forgetting about copying "background visuals" and climate conditions,including wind), it would be very possible to do a copy that could be close to a duplicate of the original. Of course, what owner would ever give that permission?
--IF you could somehow do the above without either permission or trespassing (could drones outfitted with radar of other sensing devices create a "map" of the surface" at night without being detected?), I would be surprised if the courts would uphold precedent given the changes in available technology.
Again, golf course architecture is simply not covered by copyright, so it's not a matter of upholding precedent, it's just literally not illegal to copy most utilitarian things. E.g. clothing designs cannot be copyrighted, recipes cannot be copyrighted, games cannot be copyrighted. Lot's of
things that people need to live life cannot be copyrighted. Golf course architecture is simply not covered by copyright, so you're allowed to copy it if you want to. It's important to remember that copyright was created as a way to
increase the amount of artistic creation in the world, not as some sort of private property ownership, and the original term was just 14 years.
Copyright for the architecture for structures got passed back in 1990. I can't say I'm excited about that. There was a mild push to add golf course architecture to that law last year, but it hasn't gone anywhere, and like I said before, the copyrightable elements of golf course architecture would only be the artistic elements of the design, not the design itself, so you could still effectively copy the course, just not the artistic elements.
I know it's not going to make me many allies in this forum, but
I've already articulated my concerns about extending copyright to earth-moving for golf courses, and I think it's probably a bad idea. Much like the fashion industry, most of the market for golf courses is about creating something new and interesting. Trademark is how the fashion industry handles copying to a large extent, and it works very well, and can work well for golf.
The biggest reason why I think it's unnecessary is that golf course creation is not scalable. Unlike the written word or film, copying golf courses quickly and en masse just can't happen. A publisher could copy tens of thousands of books in a day, but it still takes a construction company months (likely more time and more earth-moving than the original site), to copy a golf course. In a very practical sense, golf course design needs to be built around the land.
I'm not set in stone here, and if copycats started hurting the industry on a regular basis, my mind could be changed. However, if we were to embrace copyright for golf architecture, we'd potentially be giving up -- justifiably or not -- template culture. The threat of lawsuit, even if the artistic elements are changed, would probably have a chilling effect on architects from iterating on the same idea. With discussions of modern templates, I don't think it's unthinkable that we would bring a non-trivial amount of additional litigation to golf course development, and that's going to make a difficult industry even more difficult.
The
vast majority of the courses that people want might want make copies of are already in the public domain. That those who inherited historic courses might not want to share them, well, that's just not how copyright is supposed to work. Even if those courses had been covered for the initial period, most golden age courses would have been free to copy decades ago. Copyright projection is there to protect the artist, not the art collector.