Recommendations for the Cultural Heritage Community

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Although copyright law seems to define best what we cannot do, it is the purpose of this paper to suggest what we can do. Below is a list of recommended actions and practices for the cultural heritage community including artists, collectors, digital art communities, educators, funders, art centres, festivals, and museums. Most of these recommendations have been discussed in more detail in previous sections and are presented below in thematic rather than priority order.

  • Although copyright law would seem to be a set of clear rules set in stone, in fact law is often about interpretation. This is especially true in the arena of digital copyright, which lacks a long history of case law or precedent. Lacking precedent, courts may judge a case based on established community practice. That means that in an unclear case, a defendant that was merely following the practice of their peers, in good faith, would be judged with more leniency. Since cultural community practice is still emerging, it would be of mutual benefit to establish liberal rather than restrictive common copyright practices. This means that every individual artist or museum that makes a liberal copyright decision helps shield themselves and others in the future. This is illustrated in a Canadian court decision. The Supreme Court of Canada, in its decision in Law Society of Upper Canada v CCH Publishing found that the establishment of a written fair dealing policy that was consistently applied was prima facie evidence of the practice of fair dealing and that the burden of proof was placed upon the plaintiff publishers to dissuade the courts otherwise.
  • Diane Zorich said that laws are shaped by precedent and social pressure. She added that museums are naturally conservative organizations that may not exert such pressure, but artists are more free to do so. She concluded that the artist, as the paragon of "original creativity", might be more protected or sympathetic to the courts and public mind. Jon Ippolito also exhorted artists, as society's critical apparatus, to take up the challenge. Susan Miller thought that if the cultural target were big enough, as copyright is becoming, artists will aim true anyway.
  • Cultural agents, such as artists, are encouraged to actively share and promote sharing original content as often as they protect it. Artists might consider innovative sharing schemes like a Creative Commons or Libre Commons license or consider releasing some of their content into the public domain as a kind of "shareware" calling card.
  • Artists are encouraged to consider innovate means of legal protection as well as sharing. Michael Katchen suggested that individual artists might form limited liability corporations (LLC) that separate the assets of their artistic practice or "business" and would protect their personal assets from copyright suits. San Francisco attorney Sanh Tran confirmed that to be legit, LLC's require both adequate funding and insurance. Funding for an individual artistic practice need cover only the costs of production, and Rina Pantalony suggested that arts organizations already retain insurance from insurers that might be convinced to extend their services.
  • Museums, academia, and cultural organizations are encouraged to equally share as well as protect cultural content. Museums are encouraged to respect artist wishes and to share their original museum content (cataloging, scholarly texts) openly in the public interest.
  • Organizations that commission digital art are encouraged to include mechanisms for ensuring that their investment serves the public while protecting the artist. For instance, university galleries might commission art and require that the resulting digital work be open for re-use by local students (similar to the V2 lab example above).
  • Neeru Paharia of the Creative Commons noted that public attention centres on large concentrations of content, and suggests that the arts community offer one or more aggregate digital art resources licensed under innovative licensing schemas. For instance, the arts community could create a visual version of the Creative Commons CC Mixter music resource.
  • Funders are encouraged to drive awareness of copyright without stifling artistic experimentation or choice. For instance, Zainub Verjee said that the Canadian Council for the Arts includes funding in their grants for artists to consult with a lawyer regarding copyright for the funded work.
  • Copyright balances the right of creators to gain income from their work with public interest in reusing the work. Funders could address both interests quickly by considering funding art works that would go immediately into the public domain. This might be similar to funders who require that funded activities remain free and accessible to the public, offsetting the up front compensation of the creator to ensure greater public use.
  • Collectors, including individuals and museums, are discouraged from relying on older collection and copyright policies when collecting digital art. They are encouraged to consider the nature of the media and related recent cultural practices when updating said policies.
  • Collectors are encouraged to ascertain relevant rights in underlying infrastructure, such as software, when collecting digital art.
  • Collectors are encouraged to prepare to negotiate more complex rights for digital art, including different rights in different components of manifold works, and the rights of collaborators and participants.
  • Collectors are encouraged to plan for the fact that digital media works in their collection will change over time. Collectors should define and gather appropriate permissions to make changes to preserve the work. This may entail a detailed artist interview at the time of acquisition or video documentation of an artist walk-through. This may entail obtaining rights to reverse-engineer or break encryptions present in the work for preservation purposes.
  • Collectors who will be preserving the work for the long term are encouraged to obtain the version of the art work closest to the source. This means obtaining source code for software art when possible. When not possible, obtaining the digital files most able to produce new versions of the work (for example, .fla files instead of .swf files for Flash art). Collectors should avoid fixed or locked format versions of works such as movie DVDs. Collectors will need to reassure artists of their protected rights in the work by deploying the aforementioned deferred rights or limited use agreements.
  • Museums and other digital art collectors are discouraged from demanding exclusive ownership. They are encouraged to allow multiple copies of the art work to be collected by different agents, thus distributing the load of preserving the work. Jon Ippolito exhorted museums to consider the long term interests of the works in their care before considering their own reputation built around their unique collections. In fact, museums might consider the purchase as funding to release the work into the public domain with strict requirements to credit the artist and collector. Society would benefit from immediate use of the work without depriving the museum of their copy of the work for exhibition and research. Artist and museum alike would benefit from the notoriety and public service.
  • Since documentation is critical to preserving and using digital art, collectors are encouraged to acquire ancillary documentation (email between collaborators, early iterations of code) along with the work. Collectors should determine or negotiate the copyright and privacy status of such documentation early so that it can be accessible and useful.
  • Collectors should prepare for more detailed cataloging and documentation of digital media art. They might employ a proposed metadata standard for digital art such as the Media Art Notation System proposed in the Archiving the Avant Garde project.
  • The cultural heritage community is encouraged to continue and further professional development opportunities related to digital copyright. In the area relevant to this paper, cultural organizations are encourage to take the conversation beyond digital reproductions of physical objects to include born digital art. These discussions should include digital artists and representatives from related legal and industrial communities.
  • The cultural heritage community is further encouraged to provide additional forums for larger public debates around issues of copyright and "property making". This discussion may take the form of commissioned new works, exhibitions, educational programs, professional papers or popular papers. At the very least, the larger cultural community is encouraged to provide feedback to ongoing projects like Creative Commons or the Open Art Network.
  • Since fair use and fair dealing are copyright concepts that come up repeatedly in the arts, a single research project or paper dealing with this specific topic would greatly serve the community.
  • Artists and especially arts organizations are encouraged to become involved in developing and testing innovative economic models for the digital arts. These models include art commissions, sales of digital art to museums (but according to newer practices outlined above), distributed online income models, etc. Cultural organizations are encouraged in particular to explore the notion of funding artistic process over products, and ensuring that the creator benefits directly.
  • Museums and other cultural organizations are encouraged to make explicit what interests they protect not only in terms of law, but also in terms of policies and social values. Is the museum a protector not only of copyrights, but also of the image of the artist or artwork in society? If so, what uses of the art are acceptable and which not? Is there a real economic interest in licensing that the museum should protect for itself? Does the income from licensing balance any imperative to make the work as accessible and visible as possible? Rather than leave such vagaries implicit in the decisions of one or two staff upon each licensing request, the museum should make explicit their policy and values regarding intellectual uses of the art in their care. This would not only increase public accountability, but would also serve as a form of discourse and advocacy in the cultural sector.
  • The cultural sector needs to demonstrate why decision-makers should listen to their opinions on intellectual property. It is safe to say that the art market is not a powerful enough industry to affect copyright law on the strength of size alone. However, artists and arts organizations are on the leading edge of "content creation" and are seen as models by other content creators be they commercial or not. Moreover, artists and the arts community speak directly to the core social imperative behind copyright, "to promote innovation and creativity". Artists and arts organizations may not be economically powerful, but they are trusted institutions that could have a voice in the social debate around intellectual property.

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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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