Setting the Stage

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Though this paper will focus on digital art, it is useful to briefly consider the larger picture of how cultural organizations have been impacted by the rise of digital media with regards to intellectual property issues. One area that illustrates this impact well is that of digital reproductions of traditional museum objects and archival manuscripts, a subject of many papers, symposium sessions, and indeed entire conferences in the cultural sector. Following are examples of how digital imaging issues affect cultural organizations in ways that reveal precedents and implications for digital art.

The Centre for Research and Documentation at the Daniel Langlois Foundation in Montreal includes extensive archives of contemporary and media artists. Alain Depocas, Director of the Centre, said in his interview that one of the most pressing intellectual property questions facing his work is whether he can digitally reproduce archival material to aid access for researchers or perhaps to aid preservation. He must even determine whether he is allowed to show researchers the original physical manuscript sometimes. Part of the reason for such concern is that archival material is by definition the unself-conscious by-product of the activities of a person or organization and is thus has not necessarily been filtered or vetted by all stakeholders. These manuscripts may include private details of people's lives or industrial secrets. To compound the problem, the archive may include material about people other than the primary subject of the archive. For instance, in the Centre's Woody Vasulka collection there are personal letters from Vasulka, but also letters from others to the artist. Though this may be the "Vasulka Archive", the lives of others are intertwined in the archive. Depocas has to sort out whose privacy is at stake and whose permissions would be needed in order to digitally reproduce the archive, much less publish such reproductions online or in print. This dilemma speaks to a similar problem that arises around collecting digital art works that are often made by multiple collaborators, only some of whom may be the artists who end up dealing directly with a collecting organization.

Jill Sterrett, Head of Collections at the San Francisco Museum of Modern Art, outlined a project to digitally reproduce posters in the museum's design collection. These posters include commercial promotions for music concerts that took place in San Francisco in the 1960's and 70's. Because of the nature of the posters, SFMOMA must determine not only the multiple rights already inherent in commercial graphics productions, but also the subjects of the posters including promoters and musicians. This will take the museum into the realm of the music industry and that industry's own practices regarding advertising, publication, and reproduction. This journey is one that will be followed by others collecting digital art that is often a hybrid of media (images, music, moving image) and thus a complex hybrid of laws and practices relating to several different professional fields.

The Franklin Furnace Archive in New York provides online access to images and records of performance artists who have performed at Franklin Furnace. It is the practice of Archivist Michael Katchen to ask permission from each artist individually to mount such images and records online. Keeping close relationships to the artists, Katchen has also received requests from artists to change the online image and/or text (even though staff at Franklin Furnace and not the artist wrote the record as a factual account of the event). The reason for at least one of these requests was because the performance in question on the Franklin Furnace website included challenging material about gender and pornography. At this later stage in their career, the artist no longer wanted to be associated with that earlier work. Though the concept of "moral rights" does not exist in United States law as such, this example demonstrates consideration for the artist's wishes after the fact, whether that consideration is mandated by law or simply required by an ethical relationship with the artist. This specific request to alter the work or record of the work long after the act of documentation or collection has special implications for digital media art in that such alterations are not only easier, but are often required by the ongoing acts of preservation and future exhibition. These activities will require an ongoing conversation with the digital artist whether or not it is required by law and may signal a new way of operating especially in those countries without the precedent of moral rights.

On the topic of morals and ethics (leaving behind moral rights as a specific legal concept for now), it may be useful to tease apart the different concerns surrounding intellectual property for cultural organizations. As mentioned earlier, cultural organizations have recently become highly interested in digital intellectual property. The motivation behind this interest is often implied in professional papers and conferences to be either practical (avoiding legal trouble) or economic because cultural organizations themselves sometimes earn income from licensing images of works in their collection. But these motivations do not account for the level of interest and, frankly, the heat surrounding such professional conversations. On the economic front, income derived from image licensing by the vast majority of museums in North America is scant; usually a small fraction of the museum's operating budget. Avoiding legal trouble is always of course advisable but since not much is at stake economically, this goal is easily reached by simply making the conservative and risk-averse choice every time. The motivation, the source of the fire that often goes unacknowledged is not legal or economic at all; it lies in the moral and social values of cultural organizations. One set of social values is evident in the current debate about open culture and unencumbered access to information. Other, perhaps countervailing, values that are less often openly addressed position cultural organizations as the protectors or moral guardians of culture and by extension of cultural artifacts and their representations. These values make museum professionals frown at the idea of licensing their images for use in commercial advertising for cigarettes for instance. The organizations that hold these values are aware that much of the art they steward was created in critique of mainstream or mass culture and that to co-opt those images in the service of said culture is more vulgar than ironic. For whatever specific reasons, many cultural organizations operate as moral stewards of the works in their collection and representations of those works. This value implies a need for control of such images; the kind of control it is hard to imagine in the digital frontier. While this paper will not dwell overmuch here, cultural values are part of the larger social conversation and must be part of a cultural response to intellectual property law. It is useful to make explicit non-legal elements that would otherwise obfuscate a clear discussion of intellectual property in cultural heritage.

The importance of social values in a discussion of intellectual property was underscored by Zainub Verjee, formerly a Program Officer for Media Arts at the Canada Council for the Arts, when she said that what is at issue is not so much digital art as dealing with intellectual property in a digital culture. Verjee suggests that the cultural notion of "property making" is itself in question. Framing the issues in terms of relative global cultures, Verjee urges cultural professionals to watch and learn about views on property from cultures outside North America (referring to the emerging "global south") and cultures within (referring to traditional knowledge of native peoples).

Susan Miller, outgoing director of New Langton Arts, an experimental media artists space in San Francisco, agrees that it is critical to keep in mind that when discussing intellectual property, larger cultural values are always at play. Miller argues that cultural organizations should provide a forum for identifying and engaging the "owners and stakeholders" in society, giving equal voice to each and not necessarily limiting the discussion to a pre-existing legal framework. Miller noted that what should be only part of the discussion, intellectual property law, often has a way of rising up to stifle the entire conversation unilaterally. She warns that a danger in providing this social debate forum includes legal trouble from hosting artists who challenge intellectual property. Conversation closers also include funders and cultural organizations who censor artists that deal with such issues as animal rights, child abuse, pornography and racism - all topics that are relevant to the discussion of social ownership and social stakeholders. Miller contends that these dangers should not dissuade cultural organizations, especially cultural organizations on the "fringe" of the art world, from engendering this cultural debate because no one else will take the risk.

David Clark, Associate Professor at the Nova Scotia College of Art and Design, sees an answer to Verjee and Miller's call for cultural debate coming from another sector; education. Clark is most interested in the areas of intellectual property known as Fair Use (U.S.)Footnote 7 or Fair Dealing (Canada).Footnote 8 It is these concepts that may allow the cultural debate to take place by creating a protected space even within the seeming legal minefield of intellectual property. Clark mentioned that Fair Dealing/Fair Use can be helpful in bringing the debate to students both by allowing him, as an educator, to bring copyrighted cultural materials to the class and by allowing students to engage in the issues directly by creating, re-mixing and critiquing cultural productions themselves. He added that Fair Use/Dealing is not a complete solution to the problems arising from intellectual property for cultural heritage. In fact, he mentions, most educators do not exercise their Fair Use/Dealing rights because they do not know of them and would rather err on the safe side. Problems have also come up for him when attempting to share, publish, or exhibit the cultural critiques and productions created by his class in part by re-mixing the creations of others.

Jon Ippolito is Assistant Professor of New Media at the University of Maine and Associate Curator of Media Arts at the Guggenheim Museum. As a fellow educator, Jon sees the cultural values implicit in intellectual property play out in academia as well. Ippolito spoke about a commercial web service called turnitin.com.Footnote 9 Turnitin.com is a fee-based service for university professors where they can submit their student papers and have them checked against a huge database of other student papers and other sources to ensure against plagiarism. The database of student papers is not openly available to the user. Turnitin.com claims to encourage originality, but Ippolito is highly critical of the service and states that it hypocritically makes money co-opting students' words without giving them due credit, permission to opt out, or compensation. He argues that university funds would be better spent creating a huge database of openly shared student papers. An open system would encourage collaboration and would also encourage originality because everyone's papers would be public and openly available. Plagiarism might actually be useful, and when not, at least hard to hide. Ippolito rightfully sees this example as a microcosm of the larger question surrounding intellectual property, "Will limiting access or will opening access better promote originality?"

Moving outside (but never really leaving) the discussion of cultural values around intellectual property, we consider an additional discipline with implications for digital art and intellectual property; namely performing arts. Diane Zorich is an information management consultant based in the United States who has worked with cultural organizations in the United States and Canada. Zorich suggested in her interview that visual arts organizations wrestling with models for applying intellectual property to media art forms might look across the cultural heritage landscape to the performing arts. Specifically, Zorich noted, the performing arts have a richer model for detailing the separate rights inherent in one work. For instance, filmmakers and theater producers manage separate rights for copyright of the original script, performance rights, broadcast rights, and many more. Both the U.S. and Canada have different and very limited implementations of "exhibition" or "display" rights for art works, but these separate rights are nowhere near the sophisticated rights matrix used in performing or cinematic arts. Although it seems that a more complex model is antithetical to making intellectual property easier for cultural heritage professionals to deal with, in fact it may make sense to develop an intellectual property model for digital art that more accurately reflects the manifold nature of the medium.

An additional factor contributing to the increased interest specifically in digital intellectual property from the cultural sector is mainstream media attention to the issue at large. Cultural organizations that for decades may have not given much thought to securing rights and permissions to use images of art in their monthly print newsletters are now highly sensitive to using those same images on their websites. So, at least in the US, some of the prickly heat that arises for cultural heritage around digital copyright may be caused by media stoking the flames of infamous cases like Napster or by C-net television coverage of Disney arguing before the U.S. Congress to extend copyright. The image of Mickey Mouse pleading with Uncle Sam not to set him free seems one the media cannot turn away from. In the digital realm not only is copying easier, but so is policing infringement. These contradicting activities combine in an escalating arms race that results in ever more panicked sounding "duck-and-cover" drills from the media. These alarms cannot help but ring in the ears of the cultural heritage community.

Clearly many intellectual property issues surrounding digital art are not entirely unique or new but are inflected with external considerations and influences. Many of the finer points raised in this section will show up again later in the paper as they are applied directly to digital art. Still, digital art can put an unusual magnetic spin on intellectual property issues and to see that we must focus a little closer now.

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