Introduction

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This paper on digital art and intellectual property has been commissioned and published by Canadian Heritage Information Network (CHIN), a special operating agency of the Department of Canadian Heritage. This paper is part of a larger series of papers on intellectual property and cultural heritage that have been commissioned by CHIN.Footnote 1 This paper is not intended to duplicate the information found in those papers, but will focus on intellectual property issues that are specific to or arise in relation to digital art and will form an additional layer to the broad range of legal, theoretical, and practical knowledge found in other papers in the series.

Copyright is not the only form of intellectual property that might be relevant to digital art. Technology often falls under the umbrella of patent law and cultural organizations often deal with trademark law. It will be important for the cultural heritage community to monitor developments in these fields as well as other legal fields that may relate to digital art such as privacy law and specific laws covering art. However, in the arena of intellectual property, artistic production and artistic works usually fall in the realm of copyright law and most of the case studies and interviews cited in this paper emphasize copyright. So, in order to focus and provide some depth to the discussion, this paper will focus on copyright law in CanadaFootnote 2 and the United StatesFootnote 3 in relation to digital art.

Digital art, defined purely for the purposes of this paper, is any art that is produced and experienced using digital media. Except for establishing background, this paper will not emphasize issues around digital reproductions of traditional media art such as when museums provide online access to digital images of paintings in their collection. This paper will focus on "born-digital" works of fine art. Nonetheless, it is not the purpose of this paper to narrowly define digital art, nor would that be helpful to this discussion because many of the copyright issues and cases that apply to digital art also apply to related experimental art forms such as video, performance, conceptual and installation art. In fact, one primary feature of digital media art is that it often incorporates elements of all the forms mentioned above. So, this paper will not attempt to draw clear boundaries around digital art, but instead will focus on intellectual property issues that seem to cluster around it.

This paper is not written from a legal perspective, but from a cultural heritage community perspective. This perspective is informed by legal professionals and publications and by direct experience with intellectual property issues that arise out of the daily practice of cultural professionals. One could say that this paper is an attempt to create a snapshot of the cultural heritage community's response to intellectual property law and practice regarding (digital) art. This paper is meant to ground that response not in terms of broad theories or abstract philosophies, but in terms of daily practice and real-world case studies. For that reason, the sources used for this paper are not mainly books, but instead more topical, conversational, and immediate sources such as digital art community websitesFootnote 4, blogsFootnote 5, email discussion listsFootnote 6 and extensive interviews with cultural heritage professionals in Canada and the United States ranging from artists to curators to educators (a list of those interviewed appears at the end of this paper). The intended audience for this paper is primarily the cultural heritage community who may benefit from the discussion and analysis of the issues and proposed paths of action. The legal community may also benefit from the case studies and articulation of how one area of law is playing out in the larger society whether it reaches the courts or not.

Lastly, the purpose of this paper is to provide an introduction to and current overview of the intersection of intellectual property and digital art. This paper attempts to provide useful information to those cultural professionals who deal with such issues on an increasingly frequent basis. A secondary yet compelling reason for this paper is to broaden this conversation to the larger cultural heritage community because intellectual property may well be the battleground for the next "culture wars" of the information age and thus it is of concern to all.

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This resource was published by the Canadian Heritage Information Network (CHIN). For comments or questions regarding this content, please contact CHIN directly. To find other online resources for museum professionals, visit the CHIN homepage or the Museology and conservation topic page on Canada.ca.

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