Digital Art and Intellectual Property

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This section outlines first the general summary of research findings for this paper, followed by specific findings. This paper attempts to maintain a balance between differing perspectives on copyright, but it is also a goal of this paper to accurately represent the specific responses from the cultural community to copyright and digital art as derived from the published, unpublished, and direct interview sources. Based on these sources, it can be clearly stated that a significant portion of the cultural community agrees that copyright law as currently practiced in Canada and the U.S. is not friendly to artists and the cultural community. Rather these laws act to inhibit creativity, serve as an obstacle for reasonable and desirable cultural activities, and put artists and organizations at risk. This finding is pointed because most also felt that the original intention behind copyright was to foster creativity and protect creators. Bruce Grenville gave an example of how copyright can slow creativity instead of invigorate it. He argued that large media corporations mine public domain or "open-source" stories from the brothers Grimm and other folklore sources for instance. But once they put their imprint on a story that should continue to serve the public, they make it very difficult for other creators to, say, make an animated film of Beauty and the Beast. Content should flow from private to public domain and not the reverse. Michael Katchen noted that Benjamin Franklin and others wrote that early copyright was intended to protect the author's ability to earn a profit from their creativity during their lifetime, and that society should benefit after that. However, with numerous extensions to U.S. copyright in the past few decades (11 over the past 40 years in the U.S.Footnote 45), it is now perceived by many artists and cultural professionals in the U.S. that third parties such as MPAAFootnote 46, RIAAFootnote 47, VAGA, ARS, BMIFootnote 48 or artist estates that often derive the most profit while delaying public benefit. Though copyright law is seen as restrictive enough, it was noted that the trend of technology/entertainment industries is increasingly to enforce licenses or contracts that are even more restrictive than the law allows. For instance when one purchases digital music under Apples iTunes store contract, one is allowed to make seven copies of the digital song for personal, private enjoyment. Apple created this contract despite the fact that under the 1992 Audio Home Recording ActFootnote 49, consumers are permitted to make unlimited private use of legally purchased music and other media content stored on CD.

Most interviewees agreed that copyright is a social conversation in which several viewpoints must be balanced. Most expressed frustration however that not all viewpoints are adequately represented at the highest levels of government and society. One cultural professional interviewed for this paper framed the conversation, at least in the U.S., as a triad including private parties advocating for more protections, parties like the American Library Association advocating for the public interest and looser protections, with the national governments taking the role of the neutral mediator. This interviewee wondered if the government, as a public agency, should consider representing the public interests more actively. Jon Ippolito attended the American Assembly on Art, Technology, and Intellectual Property.Footnote 50 He noted that, despite the title of the high-level meeting to inform government policy, in attendance were only one artist, one programmer, and fifty eight legal experts. When Ippolito inquired about this imbalance, he was told that the meeting included groups like BMI and ASCAPFootnote 51 that would represent the needs and concerns of artists. A few noted that smaller cultural organizations like Franklin Furnace or New Langton Arts were created to operate outside the mainstream art world. This distance and their small size has allowed them to ‘fly under the radar' of the property fixation of the art market and many intellectual property concerns. While this distance has allowed highly experimental practice and uncensored commentary, one has to wonder if it has also unwittingly contributed to a balkanization or dilution of the art community's advocacy on intellectual property.

Following are listed, in no particular order, further specific findings of the interviews and research for this paper.

  • Most interviewees felt an urgency to learn more about intellectual property as these concerns have been arising in daily practice with increasing frequency over the last ten to twenty years. Most also felt that there are too few professional opportunities for learning in this area.
  • It would seem that knowledge of and active engagement with intellectual property issues was much higher among those professionals who deal almost exclusively with digital art, and strongest among those dealing with Internet art specifically.
  • There were mixed opinions about whether artists or the arts community could push the envelope of intellectual property law. Many felt that artists should take this risk, but some also felt that cultural organizations like museums would not.
  • Canadian interviewees generally proposed intellectual property solutions that included an active governmental role. U.S. interviewees proposed either private or cultural community lead solutions. Some U.S. interviewees and sources argued that government could help most by staying out; regulating, legislating and restricting less.
  • Canadian interviewees generally were aware of and understood Moral Rights. Moreover, many felt those rights placed an additional burden on cultural organizations, but that it was a necessary burden and that Moral Rights serve the greater good.
  • Most were aware of traditional art world economic models, and that digital media art is currently now being exchanged and funded using these old models even when it seemed inappropriate. Most interviewees and sources were not aware of new economic models that were being tried or that were successful for media artists, especially digital media artists.

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