Copyright Act Revisions Affects Visual Artists
Copyright is in the news again because Parliament is moving to up-date our copyright law in a few months. The motivation for change is a desire "to address the challenges and opportunities of the Internet," according to the ministers of Industry and Canadian Heritage. But experts in the copyright field who are arts advocates have concerns about the government's intentions.
One concerned Canadian is Dr. Michael Geist, a University of Ottawa law professor who is an expert in copyright and the internet. He is concerned that our Conservative government will conceptually mirror the U.S. Digital Millennium Copyright Act (DMCA). The DMCA took a tough stance on "anti-circumvention" rules that go far beyond the requirements of internet treaties signed by member nations of the World Intellectual Property Organization. Since the DMCA legislation was passed in 1998 in Washington; it opened a floodgate - over 20,000 copyright infringement lawsuits have been filed.
Geist's concern is one all visual artists should understand - especially the younger generations where there is a greater percentage of artists working on and with the internet. His concern is for rights of "flexible fair dealing" in Canada, rights lost in the US with passage of the DMCA law. "Flexible fair dealing" concerns what we call "appropriation," "parody," and/or "referencing." (It also concerns public practices on YouTube and internet file sharing.)
Just as contemporary writers quote or otherwise reference other famous writers, or as contemporary composers "sample" chords and riffs of other composers, artists who visually reference other visual artists are engaged in a practice called "appropriation." Appropriation has a long and strong history with visual artists beginning with Marcel Duchamp and championed by Andy Warhol. But as governments move to protect the owners of copyrights, the practice of appropriation is of increasing concern to visual artists and copyright holders - this concern is reflected in the current agenda of Canadian Artists Representation (CARFAC) and an ad-hoc group of artists assembled as the "Appropriation Art Coalition."
The Appropriation Art Coalition is a collective of over 600 "artists, curators, directors, educators, writers, associations and organizations from the art sector" that are concerned about the impact of Canadian copyright policy on artists and "the future of 'Appropriation Art'." They are passionate, but a little unclear about their fears. You can learn more about them at www.appropriationart.ca.
CARFAC and the CARFAC Copyright Collective, the most respected voices on Canadian copyright, express their concern with the possibilities of a DMCA-style revision to the Canadian Copyright Act in less militant terms than the Appropriation Art Coalition. April Britski, the executive director of CARFAC National in Ottawa, about the copyright law revision and Appropriation Art: "As you state, appropriation is part of common contemporary art practice and should be acknowledged as such, but artists should also be aware of the potential legal implications of their actions and what their rights are. There is no significant case law of this sort against an artist in Canada, and everyone is scared of being the first to get sued. I don't blame them, but I think the current laws provide reasonable protection for artists as they are now." If feared changes to the Act materialize, we can likely expect that first suit shortly thereafter.
Photographers, it should be noted, are looking forward to the passage of a new Copyright Act. Under the current Act, Canadian photographers are treated differently than other artists. Sometimes, the person taking a photograph is not considered the copyright holder; instead, the owner of the "negative" (disappearing technology) may be considered an owner. The current act awards copyrights of commissioned photographs to the commissioner, not the photographer (unless the contract between them states otherwise). This was enacted so that you own your wedding photographs, protecting your privacy. But if an artist sets up a shoot of him or herself and has someone take the photo for them, the person pressing the shutter owns the copyright, not the artist.
The revisions to our Copyright Act will likely eliminate the differential treatment of photographs and photographers compared to the rights of other visual artists, so blanket opposition to a proposed change in the Act is inappropriate. What artists have to do is specifically address the proposed changes clause by clause and that is beyond most of us. But if you appropriate in your art practice, you might want to support those fighting for the rights you value by joining one of the agencies referenced in this editorial. This issue concerns our community.
CARFAC and the CARFAC Copyright Collective are developing some guidelines on appropriation in light of the proposed changes to the act. They will likely appear on the websites of the two organizations in the near future. The CCA will produce an analysis of the contents and the process towards the passage of the measures on their website http://ccarts.ca.
To view Dr. Michael Geist's YouTube film see: www.youtube.com/watch?v=P8jE31Dp7jo and other resources at www.faircopyright.ca or www.onlinerights.ca
ctyrell@shaw.ca
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