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October 24, 2006 | Suw Charman Anderson

Future of Copyright: Roundtable 1 - Artists and copyright

Last week I went to a series of sessions run by Birkbeck, the AHRC New Directions in Copyright Network, and the Public Programmes Department of the Tate Modern, entitled Roundtable Discussions on the Future of Copyright and the Regulation of Creative Practice. Here are my notes. The aim for these sessions is to have a deep discussion of copyright and to try to find new ways to think of creation and copyright. There's a variety of people here, from artists, NGOs, think tanks, to academics, and it's a very cross-disciplinary group so that we can hopefully find some interesting overlaps and contrasts. There are nearly 20 of us here, so my notes may not make a distinction between speakers, for which my apologies, as everyone is encouraged to speak at every session. There's one roundtable today, and two tomorrow. Roundtable 1: Creativity, how artists practice, and social creativity. Jaime was one of the co-organisers of an event for the Arts Council on ways of working, strategies within what artists do and the mismatch of that and what artists do. But a policy intervention by the Arts Council said they should create tool kits to help artists. So the event ended up with surgeries so artists to talk to lawyers, so instead of having a discussion about law and copyright and artistic practice, it turned into a big case study. Problem was that they saw regulation as the foreground and everything else slot into that, so don't want to look at artists as whether they are legal. Another time he tested Creative Commons licences against artists. Got 10 artists to talk about their work, and it became clear that the way they practised their art was far more complex than anyone had imagined, and the law has difficulty with this. Also, there's a different in motivation. Economists and lawyers think that artists create art because of the incentives (money), but in fact again it's more complex than that. IP is being forced into the forefront of economic thinking because of the idea of the 'knowledge economy', the way that developed countries compete on IP rather than access to labour and materials. Have a notion that something that was cultural has been overlain by copyright as a notion, defined by economic, export trade priorities. When you look at he relationship between creativity and innovation there are crucial differences. Adam Singer once said he didn't think he was in the business of protecting copyright or the business models of collecting societies but in the business of protecting his customer's interests. Increasing sense see businesses seeing instability in copyright as a good thing so that they can override user rights using technology. No longer simple division between pro- and anti- camps. What proportion of copyright is owned by multinational corporations? You couldn't find that figure because copyright is automatic so there's no registration system. So there may be copyright you think of in a commercial context like advertising billboard, and then there may be other circumstances where the individual keeps it. You don't have to state it, it automatically kicks in. Interested in the demographic. If there's going to be a policy consequence, there's no point looking at politicising this if at the end of the day there's no means of enforcing. iPod maths don't work out, because they have a larger capacity than people can afford to fill with legally purchased music, so have to think about how copyright actually works. Is creative practice incentivised by copyright? No, it's been restrictive. Most artists ignores the rules and so long it stays within civil society it doesn't really matter. Jamie King tells a story of how he had footage of activists doing things, and was putting it up on a server online, but Reuters wanted the footage and wanted them to sign away copyright. Reuters didn't care that it was going to be online elsewhere too, but they wanted protection from their peers, e.g. the BBC. More and more methods for making small inventories valuable, e.g. print on demand. Difference of being on the constituted side, than the pre- or unconstituted side where you can play fast and loose with copyright. So YouTube was not worth suing when they were two guys in a garage, but soon as Google bought them they became a target. Google make money from advertising on other people's copyrighted material and those people are going to want a share of the money. Deibold case, distributing information on e-voting, but copyright was used as a blunt instrument to stop people spreading the information. Scientology is another example. YouTube/MySpace is a form of collage, or curation, taking material from one place, doing something with it that's expressing their personalities, and that therefore they have a right. How creative is it? There is a human rights case to be fought about freedom of expression. Fair dealing is useless because it's always found in favour of the prosecution. Someone needs to make the argument that this is artistic expression. Christian ?? on show at Tate Modern, who's taken moments of film music in order to form a new piece, but none of it's cleared. He doesn't like using stuff that's legal. But that's the point now - normally the case that's made is that the visual arts don't sue because there's so little money at stake, but Hollywood or the music industry there is money at stake. But the counterargument is that people are suing when there's no money at stake, such as Disney suing nurseries for reproducing Whinnie the Pooh. But Disney, etc., are trying to make their material culturally ubiquitous yet still denying people access to fundamental parts of their own culture, stopping people interacting with them. Another example, Newcastle Utd. claiming that a recording of people singing at a game was their copyright. Cultural imagery as a form of ideological power. Increasing numbers of people are interfering with the cultural mass without action, because they can't be identified, or because it's not worth it. Billboard Liberation Front, catalogue of their lawsuits. How may people have paid for their copy of Photoshop? Adobe don't act on illegal copies for individuals because they see them as a way to get people hooked on their product, and when they are in a business setting they will buy the licences because they dare not. Same with Wordperfect and Microsoft. Contradiction between when copying is 'acceptable' and when it's not. Disney insisting on rights even in ludicrous cases, which leads to negative publicity, but to some extent the corporation needs to defend their rights on certain images if they don't want to disappear? If it was a trademark, yes. Creative Commons, for example, pursue their trademark very vigourously. So people who've been working for CC for years then end up with a cease-and-desist letter. But does copyright set up a line that people can transgress? Is that a positive thing? Do you need to have things to transgress? To have a multinational corporation decide what can be transgressed. It's framed like school uniform - so long as you wear your tie loose you can be a bit of a rebel, and schools do that as a way to stop you destroying your school. But to use copyright to encourage transgression trivialises it. In academia it's all about reputation and attribution, so it's moral rights rather than copyright. You're not selling it so you don't care so much about copyright (although the journals do). Universities go on about IP but academics don't earn their income that way, so they don't care. So someone, somewhere has decided that artists earn their money off copyright. So academics get salaries but artists don't. Moral rights - can someone interfere with your artistic works? Integrity. If you disagree with a sculpture, it should not be tampered with. There's an idea that the arbiter of ethical issues is going to be copyright. Unique artworks are generally not defended by copyright because it's not needed. But it's mass culture that gets defended. Complex nexus of funding and support structures in the visual arts. So visual arts has developed creative strategies that are not bound to copyright. Questions of the unique work of art and the reproducible works of art, that only exist in reproduction. That latter case is where copyright comes in. Repeat of idea isn't covered. But there is appropriation, so can sue for that instead. Myth of originality. This does not exist in jazz because you're constantly quoting other musicians and playing with them, and it's always been like that, more sophisticated. Networkedness of everyday life is illustrating our dependence on each other and those relational struts are becoming more obvious because of the connectedness, but any discourse that seeks to preserve the fortress mentality becomes bourgeois in actual fact because it is seeking to preserve old property relations. Artists are not concerned with maintaining that model, but maybe the market is? Art world is fundamentally individualists. Critique of originality, linked to genius, and genius is patriarchal, and copyright is a way of rarifying patriarchal constructs. How important is originality to copyright? What about imitation? In some places in the world imitation is seen as valuable, and imitation is the last thing we want to do in our western culture, but it used to be that you were really praised when you were imitated. History of western art is based on imitation and emulation, and lots of patents were based on taking things apart and improving them. Learning to draw from casts, then learning to draw from life, and then eventually come to learn how to hide your influences. Hasn't been a story of complete originality. What about copyright in a wiki in a highly collaborative environment where it can be impossible to identify editors only identified by an IP address? Would be possible to ask everyone to assign rights to an individual who can then decide what to do with them, but that's a voluntary solution. Film making, where some people get to assert copyright but others don't. Work for hire. Generation was by the photographer but the editor is merely modifying. Rights distributed according to some sort of social decision. Law has decided who gets rights, but it's up to you to decide how much you're going to sell them for. Copyright can make some important symbolic statements. Law creates rights, and those rights are transmissible and sometimes those transmissions are laid down in law, again e.g. work for hire. Spandau Ballet - Gary Kemp claimed to be sole author of the songs, but Hadley and the others were claiming co-authorship, which affects royalty income, from airplay etc. Issue was whether Hadley, the drummer etc, were creators. Lots of musicological evidence, yet the judge said that the person who wrote the sax solo was just a performer, as the sax is an instrument associated with jazz and improvisation. Judge drew on musicological evidence that emphasised relationship between composer and performer in classical music, and also found a fit within the copyright schema that has one position for authors and one for performers. It's often economic muscle that helps shape copyright, but the existing copyright schema defines who's got the economic muscle. How does the notion of the artist, particularly the notion of the starving artist in the garret, fit together with the cultural industries? Creativity that occurs between people and not in the mind the individual. Ideas of creativity around open source software. How capable is the individual of creating work in isolation? There's an idea that the individual creates because their work is protected and because they own rights. This is being disrupted by the internet. Two vectors, one that it's difficult to regulate ideas because they slip out of your grasp and replicate, and the more there is of something the cheaper it becomes so you have a problem selling things that keep multiplying, spells a massive problem for concept of ideas as property. Digitality in the network form, the connectedness of our ideas become more and more obvious. Whilst in the past, footnotes may link essays, but you'd have to go and chase it down time and again, but now all the links are already there and it's easy to follow them. So it's obvious that every work is connected to every other work temporally and asynchronously. Discussion indicates that copyright is assumed to be about creativity, and that's largely because of the way that the concept is appropriated. But copyright is much more commercial than that, and it's not necessarily about creating new knowledge, but new forms and those new forms are the value. Not compatible with networked creativity because that would be uncommercial it's about stopping that flow to you can create value. The subject somehow has to be the centre of copyright, but history doesn't support the idea of a consistent subject. Copyright creates an accountability. Are we coming to the end of a period, and are we arguing about how the lose ends tie up or are we starting something new? Two uses of copyright: to control usage; to identify people, maybe moral rights. But is money integral to copyright? It clearly is, you need to fund people some how, so where is that money coming from? Will people be funded to create? Will it be their job? When you discuss the relationship between creativity and copyright are you barking up the wrong tree? Lots of issues. Frustrating to try and think through them all at the same time. Doesn't help us to talk about creativity. Artists don't feel that what they do is creative, it's not about creativity. So no point asking 'will money help you be creative', because I don't want to be creative. Copyright imposes some sort of assumptions on you that you might not want; might not want a property relationship between art and the individual. So copyright isn't helping with anything that's done. Already, we don't think about subject in the way copyright wants us to think about subject. Tension between artists and institution. Artists aren't interested in having that relationship with their work, thinking of it as original copyrighted ideas. But the institutions are, and it's all for them about ownership. People making the work aren't interested but those who own it are. Remind us all how old this critique is. Long history of where our idea of the self comes from and how stupid it is. The idea of inwardness is so modern, but try being an individual now without inwardness, but the idea of the individual is ridiculous. Ideas were discussed already in the 50s. We're dealing with the end of an era but keep dealing with it over and over and over. Creative Rights Alliance, wanted stronger copyright, wanted stronger copyright and ownership, wanted the legal system to interfere so that they couldn't give away their rights in perpetuity. Copyright didn't protect blues singers. The point is well made. So some young artists trade works speculatively in case one of them is successful. As an artist you are part of production of society, so want to be paid for that, rather than think about selling the rights to something. Copyright doesn't touch a lot of artists in their daily practice. We are talking about accepting copyright as something worth accepting, and maybe we shouldn't. No shame in wanting to earn money. Illustrators desperate to become authors because they see themselves as exploited, so they see copyright as a protection. Copyright never had to be the reason why anyone did anything. People do all these things, and always have, not incentivised by copyright. Technological argument that copyright as it is cannot survive the innate reproducibility of digital files and the capacity to instantly distribute them across the network. At WIPO, there are people on the other side that think this is a problem too, but they think they can remedy these things. But the film and music industries may break a lot of other things in our society at the same time. Important point of ideology. "I want to be paid for the work I want to do..." but why? Understand why, but who will pay, and is it a good allocation of resources? Has to be brutal supply and demand. If artists didn't work for nothing, then people would have to pay. But a lot of artists know nothing about copyright. They don't really even know they have rights or what they are until they are faced with a contract to sign them away, and at that point it doesn't matter because they "weren't using them anyway". History shows that copyright does have a capacity to accommodate different notions of creativity. Much of copyright isn't to do with digital forms. There will be some regime outside of the digital environment. There are whole swathes of cultural production that will not be affected by digital technology - plays and theatre and nightclubs. But the question is not 'will copyright suffice' but is it good enough? Do we want it to suffice? If copyright is robbing the public domain, if it is a control mechanism of huge corporations then do we want it? So can we make a business model which will work outside the system? If you take away the copyright system, will the incentive to make huge blockbusters disappear? Need a level playing field where there is no control for anyone, because in that situation artists can relate to audiences and there is a good change audiences will pay for the work. The copyright industries are heading for a contract law system. Argument is not about technology, it's about control mechanism. Contract law and employment law are being used as blunt instrument to control creativity by forcing people to give up their rights. Designers, for example, being forced to sign contracts - not just work for hire but also freelance - that strip them of their rights so they can't even show their own work in their own portfolio. Too easy to focus on copiability when talking about contract law, but also have to think about labour markets. So can use network theory in different ways, e.g. to strip people of their rights. So work about patents and how to award patents, for example, can be used to ensure that employees have no rights over their creative works. Creating exploitative apparatus. Online you have reproducibility and distribution in one place. You only need one person with a bit torrent server or twenty, you can satisfy world demand for a movie. Barriers to entry much lower to be an infringer. Discontinuity between having to set up a factory to create pirate DVDs and what's needed to infringe digitally. END Debate was a bit fractured, and not sure we really reached any conclusions but it was interesting nonetheless.

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Comments (1)

  1. robmyers » links for 2006-10-25:
    Oct 26, 2006 at 12:28 AM

    [...] The Open Rights Group : Blog Archive ยป Future of Copyright: Roundtable 1 - Artists and copyright "Last week I went to a series of sessions run by Birkbeck, the AHRC New Directions in Copyright Network, and the Public Programmes Department of the Tate Modern, entitled Roundtable Discussions on the Future of Copyright and the Regulation of Creativ (tags: copyright free-culture org) [...]



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