Source Codes

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Amid the variability and portability, there is one aspect of digital media that separate them from traditional art media and even other electronic art media; source code. Source code is usually a text file written by a programmer in a standard programming language like C++. Using a separate piece of software called a compiler, this source code is compiled into a full fledged piece of software such as MS Word. Since source code is one of the few elements that is truly unique to digital media, it is worth discussing its specific implications for digital media art and intellectual property.

One implication is the fact that digital media includes intellectual property rights not just in the content of any specific art work, but also in the underlying infrastructure. For instance, when a collector buys a painting they must negotiate all the rights in that painting, but they do not need to separately negotiate the rights pertaining to the paint material itself, to the canvas and stretcher bars, etc. They do not need to obtain permission from Rembrandt Paints to conserve the work by re-touching areas of the paint with another brand in future years. This is not always the case with digital media art. With digital art, the artist may have produced their own code or may have used a commercial software program like Flash (compiled code) to produce their art. In either case, the collector may need to reverse-engineer and then reproduce the underlying code to preserve the work by porting it from its original platform to a newer one. To do this, they would need to have obtained the permission of the rights holder to the software, independent of the rights holder to the art work. Unlike most art materials, most software is licensed and not sold outright to the buyer. The buyer does not own the digital material outright; they own the right to use the material in specific and limited ways. Artists and collectors must consider these underlying infrastructure rights when negotiating the intellectual property of an art work.

Additionally, source code can play many roles in a work of art. Sometimes source code is used to produce a work of art in the form of a compiled program that can run on its own. In this case, the rights in the original source code versus the compiled program may be separate. Sometimes source code does not produce the art (a separate program or media instance), but instead the code itself is the art. This may be because the artist considers the code more important than anything it produces, or it maybe that the code is written in a language that needs no compiling to run (JavaScript for instance).

Source code for a digital artwork can come from many sources, each of which has separate intellectual property implications. First are instances where the artist writes the source code. In this case, the collector may negotiate directly with the artist for all rights. Sometimes the artist engages a collaborator or hires a programmer to write the code. In this case, the collector may negotiate with the artist only when the artist has cleared all rights issues themselves and indemnified the collector against future claims by the collaborator or hired programmer.

Source code may bear an exclusive one-to-one relationship with a work of art where an entire piece of code has but one purpose; to produce the work of art in question. It may not always be so simple. For example, Shor, the creator of Landslide, hired a programmer to write much of her code for her. Her source code is used to produce Landslide, but parts of the same source code are also used to produce other artworks. For another example, Japanese Artist Akira Hasegawa created a digital artwork, Digital Kakejiku, where never-repeating abstract images are projected on buildings and large outdoor areas at night.Footnote 20 The code that is used to produce this fine art work has also been licensed to a commercial manufacturer of massage chairs who uses the code to sync the chair's vibrations with the audio visual signals coming from the sitter's home entertainment system.Footnote 21 The same code has is being used by designer Issey Miyake to produce one-of-a-kind textile patterns for fashion design.

Considering the complexities in thinking through the separate intellectual property rights for custom software developed by artists in relation to the work, Jon Ippolito and others have formed the Open Art Network.Footnote 22 One of the goals of the Open Art Network is to develop and promote a template license for code that is part of artworks. For artists, the license would be a legal tool for sharing their code. For collectors the license may not grant them exclusive rights, but would make explicit their rights and permissions pertaining to the code.

The Open Art Network, along with other copyright collectives discussed later, may be of great help to the cultural community. The Open Art Network covers instances where the source of the code is the artist. However, there are many artworks for which the source of the code is not the artist or their collaborators. Another source for code besides the artists may be a separate programmer who is sharing their code via a separate open-source license or other legal tool. In this example, the artist is the beneficiary of someone else's open-source license. This example would most likely allow the artist the needed flexibility to modify the code to produce their work and then share the modified code along with the work with the larger world, including collectors.

Artwork related software from the commercial sector poses the most intellectual property issues for the cultural community. Many digital artists do not produce their own source code, but rather buy off-the-shelf computer software like Flash or Photoshop to produce their work. This code for this software is of course owned by the parent company, and the artist merely owns a right to use the compiled software in specific ways (no reverse-engineering, duplicating, or re-sale for instance). At the very least this means that when an artist gives a work of digital art to a collector, they cannot simply make a copy of the work and a copy of the commercial software to give the collector. The collector will have to obtain their own software. More importantly, anyone wanting to migrate a work of art from one platform to another (say from Windows to Mac) in order to preserve it or lend it for exhibition will not be able to modify or re-compile the underlying code in the software to do so.

While there is no answer for this situation that is as clearly described as the Open Art Network is for custom, open-source software, there are ideas and examples. For instance, Howard Besser, Director of the Film Preservation Program at New York University, along with others have been developing and promoting the idea of a public commons for old commercial software. Commercial software that is out of date is not of much commercial value to the vendor or others because upgrades and new versions have been developed. The idea behind the public commons is that the government could motivate vendors through tax breaks to donate original source code for old software into a public domain, openly-available resource without little or no copyright restriction. Artists and collectors would then have rights to share and modify this commercial software as needed for exhibition, exchange, or preservation of digital art works. This idea has not yet taken off in the largest sense yet, but the commercial software vendor Macromedia has directly given Brewster Kahle, creator of the Internet ArchiveFootnote 23, permission to reverse-engineer their software in order to aid Kahle's efforts to preserve web sites. In the film community, the notion of public commons is also being applied to independent documentary film in a project lead by the Annenberg School of Communication and American University.

It should be noted that there are other ways to share digital art openly that may not help with long-term preservation but may serve an immediate purpose. Some artists make it a point to share the most open version of the artwork that they can without obtaining copyright permission from others. To explain, it might be helpful to describe as example the various layers involved in producing an artwork with the program Flash. First there is the source code for Flash belonging, of course, to the vendor. That source code is compiled to create the program known as Flash that people will buy in the store. As mentioned earlier, these layers are tightly controlled by intellectual property rights, licenses and contracts. The software is then used by the artist to produce their work. For that, Flash produces a document, a computer file, in the .fla format. This .fla file can be edited and modified using the Flash software but cannot be viewed easily on the web. In the last step, the artist uses Flash to produce from the .fla file a derivative file in the .swf format. The last format may not be edited, but it can be viewed and used on the web, so this is the file that will be used to present the artwork to the world. Most of the time, artists mount only the .swf file online to allow others to experience their work, but some artists also share the .fla file for the work, thus allowing others not only to view, but also research, modify, re-mix, and otherwise re-use the artwork. The artist needs no additional rights to do this because they are sharing only a document in the Flash format, and not the Flash software itself. Anyone else wishing to use the .fla file would have to have their own copy of the Flash software. Again, this is not an ideal solution, and certainly will not be enough for long-term preservation, but it demonstrates a creative and quick solution that may help in such efforts as collaborative arts education.

It is clear that source code requires us to think in new ways about intellectual property in relation to digital art. It is in the interests of the cultural heritage community to become involved in efforts to resolve copyright issues pertaining to code and to bring to the table the special considerations outlined above when dealing with digital art works.

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