Responses from the Legal Community

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Though this paper focuses on responses to copyright from the cultural heritage community, it would be remiss to omit the other side of the conversation in the form of legal community projects that address or reach out to the creative communities. Creative Commons is probably the best known such project that concerns digital culture. Neeru Paharia, Assistant Director of Creative Commons, reiterated that the purpose of copyright is to promote creativity by granting creators a temporary monopoly on uses of their content. That period consists of the life of the creator plus 50 years in Canada, life plus 70 in the U.S. There are variants and exceptions on the terms (corporate creators get a different term for instance), but the basic purpose is the same. Paharia went on to say that copyright aims to aid the progress of society by releasing the work for use by the larger culture after this period ends. Paharia went on to explain that many digital artists feel their creativity inhibited by copyright law as it is currently practiced (a fact confirmed by nearly every interview and source for this paper). Many more artists do not know their full rights. Lastly, and most important to the formation of Creative Commons, is the fact that copyright is now automatic; it applies automatically the moment a work is created, requiring neither marking nor registration. This means that it is relatively clear how artists' works are protected but less clear how they can remove all or part of those protections when they want to share their work. Creative Commons is a project and a group that develops legal licenses that creators can use to share their works in various ways. Creative Commons separates out various rights and allows creators to choose which to retain and which to give away. For instance, one license may retain the right of credit for the artist, but release the right to make derivative works.

The Artist Rights Society (ARS) and the Visual Arts and Galleries Association (VAGA)Footnote 42 are long-standing organizations that act to protect the intellectual property rights of their respective artist clients and members. Groups like ARS and VAGAFootnote 43 rely on fairly strict interpretations of current copyright laws in order to protect their artists. In comparison, Creative Commons has focused mainly on music and is a much newer organization, but is nonetheless invoked by digital artists much more often than either of the aforementioned organizations. Creative Commons' open approach to copyright seems to engender media artists' loyalty to digital culture rather than to their own artist member organizations. For some however, the Creative Commons does not go far enough in opening up copyright for the fine artist. Libre Commons is one project that purports to better serve fine artists . They point out that Creative Commons may not be completely compatible with other digital licensing schemes, specifically certain open-source software licenses. One way in which the cultural heritage community could take a direct role in copyright is by coordinating among the various experiments and ensuring that innovations continue in the areas of economic and copyright models applicable to digital art.Footnote 44

One area of intellectual property that remains of great interest to artists is fair use (U.S.) or fair dealing (Canada). Fair use and fair dealing are not laws themselves, but rather defenses against infringement outlined in the law. Fair use considers the purpose, nature, extent, and effect of infringement. Fair dealing is similar. It considers whether or not the use falls into one of five categories, and if it does, considers factors similar to U.S. fair use but also considers whether or not there are available alternatives to infringement. There are many questions that arise in applying fair use and fair dealing to art, questions that have as much to do with artistic and cultural concepts as legal ones. In Canada, it is the criticism clause of fair dealing that is often invoked by artists (in the U.S. it is the similar satire or parody clause though critique is perhaps a better word as it removes inaccurate and purely comical connotations). Since all art can be considered a form of social criticism, parody, or satire, (critique) is this defense too broad? Or does the breadth of these clauses make them the perfect umbrella under which the arts can operate safely under lessened copyright restrictions? With regards to digital art, fair use and fair dealing remain legal areas to be tested. For instance, it is unclear how fair use or fair dealing applies to code and software. If an artist infringes by using copyrighted code to generate a new work and then claims fair use, how would the courts measure the "extent" to which the original was used? If the new work was asserted to be a criticism or satire of the original, who is qualified to determine that satiric capabilities of code instead of the usual pictorial or textual modes of satire?

While Creative Commons remains an important experiment at the intersection of digital art and copyright, it remains one of the few with such high visibility and participation. More such projects are needed. For instance, fair use and fair dealing are another example of a fairly discrete area of law that could be the focus of a joint project between the legal and cultural communities.

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