Visual artists and Copyright in the Knowledge Economy

Copyright applies to all art but there can be exceptions. Three questions:

1. In future, might your art be deemed orphaned and not eligible for copyright protection because your ownership data is removed from a digital file?
2. Will we be able to continue to see digital versions of art on the Internet - for free?
3. Will you be able to access great works of art in museums and art galleries for blog posts?
   

You might think these questions are unconnected - but I'm not so sure they are. It all relates to yet more moves in relation to copyright and visual art.

Allium à deux
7" x 5", coloured pencils on Arches HP
copyright Katherine Tyrrell

In the UK, copyright for all art lasts for the life of the creator (author) and another 70 years - so long as the originator can be identified.

Last week the European Commission published a Green Paper Copyright in the Knowledge Economy (pdf file). It starts from the presumption that it has to reconcile the protection of the legitimate interests of the rightholders with the wider goal of access to knowledge. So it starts from the perspective of two admirable aims.

The Green Paper looks at whether existing legislation relating to copyright helps or hinders the creation and transmission of knowledge for the purposes of research, science and education. The Green paper is intended to kick off a debate on the long-term future of copyright policy in these fields. It acknowledges that copyright policy cuts across a number of interests. According to the EU relevant interests involve:

• government policies relating to the marketplace and culture and is also of relevance to
  
• those whose personal/business interests relate to the information society, competition and consumer interests.

Sigificantly the EU, in its introduction, forgets to highlight at the outset that it is also of critical interest to the originator, creator and author of the work which is subject to copyright.

The "public" addressed in this Green Paper comprises scientists, researchers, students and also disabled people or the general public who want to advance their knowledge and educational levels by using the Internet
EU Green Paper - Copyright in the Knowledge Economy

The Green Paper is trying to organise and structure a debate and point to future challenges in fields that have not been a focal point up to now. These are fields such as scientific and scholarly publishing, and the role of libraries, researchers and people with a disability (except it has a very odd notion of disability).

The Green Paper focuses on the exceptions to copyright which are most relevant for the dissemination of knowledge, namely:
– The exception for the benefit of libraries and archives;
– The exception allowing dissemination of works for teaching and research purposes;
– The exception for the benefit of people with a disability;
– A possible exception for user-created content
EU Green Paper - Copyright in the Knowledge Economy

Most importantly - all artists in the European Union should note that this extends the European version of the debate on Orphan Works. It also covers what it refers to as User Created Content - which includes blogs!

A quick review of the Green Paper suggests that the European Commission is certainly not moving fast enough in keeping up with technological developments. Existing practice flouts existing copyright law - while existing law might actually be getting in the way of education and learning - and has effectively been ignored by those operating within the spirit if not the letter of the law.

It also seems to be listening rather too much to be big corporate interests rather than those of individual producers and consumers - and to the music business and librarians rather than artists and the art business.

A move to remedy this situation is indeed welcome - so long as it balances the interests of different parts of the arts and balances the valid interests of the creator, the consumer and the taxpayer as well as any other corporate interest - whether public or private.

Orphan Works

Orphan works are works where the owner cannot be identified. The notion of orphan works is a particular problem in relation to visual works, particularly in relation to digital files of such works as the original signature and identifying marks of the artist can be separated if somebody decides to steal and use it for their commercial profit.

Orphan works as an issue originally arose when the large scale digitisation projects associated with works in libraries and museums - which can include visual works such as art and photographs - highlighted that there was a problem in identifying copyright owners as not all could be found.

My limited understanding of the way in which the orphan works debate has progressed suggests that it is largely being driven by the librarians and museums and the voice of the present day copyright owner of works being created today is notable by its absence. Indeed, the exception which is being discussed is found within the section relating to libraries.

In recent years libraries and other public interest establishments have become increasingly interested not only in preserving (digitising) works but also in making their collections accessible online. If that were to take place, libraries argue, researchers would no longer have to go to the premises of libraries or archives but would easily be able to find and retrieve the required information on the Internet. Also, publishers state that they are digitising their own catalogues with a view to setting up interactive online databases where this material can be easily retrieved from the user's desktop. These services require payment of a subscription fee.
Summary introduction to EU Green Paper - Copyright in the Knowledge Economy - section 3.1 Exceptions for libraries and archives

The Orphan Works issue is therefore a nuisance for libraries - and obviously needs to be addressed.

However the concern in Europe must be that we don't get a repeat of the proposals in the USA which effectively ignore the rights and economic interests of visual artists, illustrators, photographers and others. All originators need to be safeguarded from those who are likely to ignore or only pay lip service to legal requirements.

The existing proposals also looks very like it might be more about creating an income opportunity for museums and art galleries as opposed to promoting the education and learning of all those interested in art. (Are you going to be willing to pay a fee every time you want to access the digital archives of every museum and art gallery? Can this proposal be really serious?)

While there is undoubtedly a problem with making orphan works available for use, I've yet to see a paper or bill (such as those which are currently extant in the USA) which have adequately addressed theft of works for commercial gain.

While approaches to this issue differ, the proposed solutions are mostly based on a common principle; a user has to perform a reasonable search in order to try to identify or locate the rightholder(s).
EU Green Paper - Copyright in the Knowledge Economy - Section 3.1.3. Orphan Works

I understand that in the USA it's proposed that the issue of search will be addressed by making all originators register their works - as opposed to all those who use allegedly orphan works registering their commercial work for scrutiny and flagging up ownership.

If, as this Green Paper suggests, it's possible for an exemption on orphan works to be restricted solely to libraries and other public interest establishments why on earth has the development of law on orphan works in the USA created such an enormous fuss?

The Green Paper requests comments in response to a plethora of questions relating to any variation to existing rights relating to reproduction which are enjoyed by libraries and museums.

Disabled Access

In my opinion, the disability access section is completely ludicrous and represents an incredibly impoverished notion of both disability and access. I suggest all those who have a disability relating to mobility take a close look to see what I mean! At the same time the Commission wants a web that is better enabled for the disabled - but yet again views disability purely in terms of vision or ability to use a mouse.

Dissemination of works for teaching and research purposes

Both teachers and students increasingly rely on digital technology to access or disseminate teaching materials. The use of network-based learning accounts at present for a significant part of regular curricular activities. While dissemination of study materials through online networks can have a beneficial effect on the quality of European education and research, it may also carry a risk of copyright infringement where the digitization and/or making available of copies of research and study materials are covered by copyright.

The public interest exception for teaching and research purposes was designed to reconcile the legitimate interests of the rightholders with the wider goal of access to knowledge.

This section seeks to highlight another ridiculous legal situation which challenges learning outside places in which copyright works are situated. There are many differences between the law in different countries. Few countries recognise that:

• learning with educational institutions now frequently takes the form of distance learning
• learning often takes place outside libraries educational institutions via networks
  
• learning does not only take place under the auspices of educational institutions - and access for educational purposes needs to be available to all those seeking to learn via digital resources.
  

I can't quite see see how existing legislation across different countries which relates 'fair use' only to institutions can possibly be reconciled with the concept and basic philosophy of the 'fair use' exemption - there is an obvious need for change and clarity.

User Created Content

Web 2.0 applications such as blogs, podcasts, wiki, or video sharing, enable users easily to create and share text, videos or pictures, and to play a more active and collaborative role in content creation and knowledge dissemination...........user-created content was defined as "content made publicly available over the Internet, which reflects a certain amount of creative effort, and which is created outside of professional routines and practices
EU Green Paper - Copyright in the Knowledge Economy - Section 3.4 User Content

The Green Paper calls for comment in relation to two specific questions, namely:

• (24) Should there be more precise rules regarding what acts end users can or cannot do when making use of materials protected by copyright?
• (25) Should an exception for user-created content be introduced into the Directive?

I'd definitely like to see the European Commission and the UK Government putting a bit more effort into keeping up with the ways that digital technology is transforming communication in the online world. I don't want to see it siding with big business interests so much as getting onside with individual consumers who also want to be creative and to learn more about the wealth of information that is available.

Speaking personally, I'd like to see a priority given to making MORE images available for digital educational and online use - as opposed to transferring very large print-ready images to digital libraries which assume the only use is a commercial print one - as one major art museum has just done. The choice now is between thumbnails which are of no use for viewing online and could not be printed and very large files which attract a fee. If I was the Minister for Culture, I'd be telling them that they were not getting any more government grants for supporting cultural artifacts until the education of the country's students and all those wishing to learn more was suitably protected!

I'm off to the UK government's new initiative Show Us A Better Way [ http://showusabetterway.com/ ] to make a suggestion..............

Call for comments

The Green Paper is calling for comments and seeks views on whether:

• the exhaustive list of exceptions under the Directive achieves "a fair balance of rights and interests between […] the different categories of rightholders and users"
• the proposals are in line with a rapidly changing environment where technologies and social and cultural practices are constantly challenging the balance achieved in the law and new
  market players, such as search engines, seek to apply these changes to new business models.

Answers and comments, which may cover all or only a limited number of the above issues, should reach the following address by 30 November 2008.
markt-d1@ec.europa.eu.

I'm trying to formulate a view and an initial draft reads something like this:

• orphan work status can automatically be assumed for all works where there is no identified owner AND where the work is obviously older than the average age of an adult plus 70 years (ie the current period of copyright enjoyed by all legitimate and identifiable copyright owners). All works older than that are automatically out of copyright. This approach would automatically means that pretty much all existing photographs still enjoy copyright status and cannot be used without permission.
  
• If the age of an orphan work is known to be within a copyright period then it may be used for any non-commercial work which is associated with research, science, education and teaching irrespective of whether or not that knowledge-oriented use was being undertaken by recognised seats of learning (otherwise you rule out all self-directed and distance learning).
  
• Places which house orphan works can charge for print-ready quality files only - and not for access to a database.
• recognition should be given to the idea that learning does not only take place in educational institutions
• museums and art galleries should be obliged to make digital files suitable for online viewing to all those interested in learning more about art.
  
• The owner of all digital files which are apparently anonymous (orphans) must be able to point to the source of the original file and the location of the original document - in other words they must articulate and credit sources.
  
• Anybody seeking to use orphan works for commercial gain and profit must register that work and pay over a proportion of profits if a subsequent owner of an orphan work is identified

In other words let's

• encourage learning and make sure that people can see works of art for free - whether or not they can actually physically visit the place where it is kept
  
• make those seeking to exploit orphan works for commercial use register and pay fees and indemnify the rightful owners from wrongful use rather than placing any onus on the author/artist and
  
• make sure that the economics of any legislation work for all producers and consumers, whether or not they are full-time professionals.

The problem is that I came across another European document (in relation to copyright and the music industry) which suggested enforcement and criminalisation in relation to 'commercial gain' need not involve financial benefit or the exchange of money - it could be defined as just one example of P2P file-sharing. (You'll appreciate that the music industry is completely obsessed with downloads and file-sharing between young people - as opposed to updating its methods of distribution)

Interestingly, the Green Paper was published on the same day that the European Commission announced its proposal proposes to align the copyright term for musical performers with that applicable to authors, in this way bridging the income gap that performers face toward the end of their lives. (The proposal is to extend the term to 95 years from the date of the recording). One might comment (cynically) that such a concession will also benefit the music industry who doubtless lobbied for it.

But who lobbies for the monetary and economic interests of the visual artist?

I'll be looking out for any organised response to this consultation by organisations representing visual artists. At the moment I've had a very difficult time finding any coverage of this in the broadsheets or relevant press. Maybe we need to remember they are also one of the interest groups?

What do you think? Will you be commenting?

Postscript - NOTE TO THE EUROPEAN COMMISSION:
Next time you produce a Green Paper, how about making it one which has embedded URLs which links to digital versions of all the documents that you reference in the Green Paper!!! In an era of e-government I expect these to all be available online.

Links:

• Copyright and Orphan Artworks - Resources for Artists
• Europe's Information Society
  
• European Union: Press Release Intellectual Property: Commission adopts forward-looking package
• European Union: Green Paper COM(2008) 466/3 Copyright in the Knowledge Economy