“artists in conversation with copyright”

Martha Rans, Legal Director of Artists’ Legal Outreach (ALO) is curating  Art, Revolution and Ownership: Who Owns the Public Domain, September 8-11. Allied with New Forms Festival (now in its 11th year) and W2 Community Media Arts (a nonprofit Vancouver arts centre which reaches far beyond Vancouver),  this event marks a rare opportunity — to engage in an interdisciplinary conversation in copyright.

The public is invited to enjoy the works of Diyan Achjadi, Sonny Assu, John Cage, James Gnam, Faith Moosang, Ben Reeves, Hart Snider, Diana Thorneycroft and Michael Nicoll Yahgulanaas.  Participating with Martha in this dialogue are Geoff Glass (co-founder of the Vancouver Fair Copyright Coalition), Mark Hosler (founder of NegativLand),  Laura Murray (Professor in English, Queens University), Tina Piper (Assistant Professor in Law, McGill University), and Kirsty Robertson (Assistant Professor in Visual Arts, University of Western Ontario),

It all begins on Sept. 8, with art is either a complaint or do something else –  performed by the award-winning contemporary ballet company, plastic orchid factory.   Complete details are available here.

Update: September 12, 2011.  The ARO site was hacked; I disabled my link. But the event was wonderful; stunning artwork combined with vibrant conversation.

Creating creativity

In 2006 Professor Ruth Towse posed an interesting question: How do we create creativity?* She asked the question in light of the heightened attention by national governments to creative industries. Policy makers insisted that creativity offers economic gain on a national scale, and thus it was imperative to foster creative behaviour. As Professor Towse observed then, and still holds true today, “what is meant by creativity is not clear and it is far from clear how it can be encouraged by government policies.”

Copyright is deemed to be an incentive for creative effort because it appears to facilitate trade of creative effort. And so, when speaking of creativity, advocates of copyright expansion focus almost exclusively on the financial implications of the mechanism of copyright. Reading through the transcripts of the ongoing legislative meetings for Bill C-32, a constant theme is the amount of money that can be gained or may be lost through copyright. As to how those numbers are arrived at, the transcripts do not explain.

In any event, we need not argue: copyright does bring income to some people, some of the time. But the division of income is not evenly distributed between creator and publisher, or between domestic industries and international conglomerates, or the homegrown superstar as compared to the homegrown neophyte. Those distinctions have less to do with copyright and more to do with education, training, exposure, bargaining power, sheer luck, and that ill-defined term: creativity.

In the absence of a clear understanding of what creativity is, perhaps the policy objective of creating creativity can only be approached inversely. What deters creativity is the next best question. Lack of capital is a factor. But seen from this perspective it may be easier to recognize other factors. Access to past work is important and building upon past work is necessary. Yet fear is a palpable concern (as noted in my last post.)

To give creative endeavor more shelter I proposed making fair dealing illustrative. But if we must remain locked into enumerated categories of fair dealing Professor Graham Reynolds convincingly argues that a further category be added: a protection for those who engage in transformative work. In his chapter, “Towards a Right to Engage in the Fair Transformative Use of Copyright-Protected Expression,” in From “Radical Extremism” to “Balanced Copyright…” (free download available here) he indicates that Canada would not be the first country to take such a step, and, he stresses the importance of ensuring that the anti-circumvention provisions of Bill C-32 do not render such a right null and void.

Professor Reynolds reviews some of fair dealing case law where the defendants lost. Describing the rationale for those court decisions, he shows that there is good reason to believe that transformative works could be well received in Canadian courtrooms today, if the work can meet the first requirement of category of use.

Another interesting case concerning transformative use, and a success story at that, is Allen v. Toronto Star Newspapers Ltd. It marked a moment of discontinuity in fair dealing’s twentieth century ill fortunes; the outcome diverged from the tendency to subordinate fair dealing to copyright owners’ interests and was a much-needed reminder of the collaborative and transformative nature of creative effort.

* Ruth Towse. “Copyright and Creativity: An Application of Cultural Economics,” Review of Economic Research on Copyright Issues, 2006, vol. 3(2), pp. 83-91.

Sometimes art is just art

Last week a colleague forwarded to me a query from an artist who had concerns about an intended work; he wished to reproduce images of other artists’ works and combine them in a very novel manner. His initial exploration of copyright law had taken him into the language of fair use and he seemed hopeful that his work would be on safe ground.

Much as I would like to tell all artists to simply go about their artistic business, it remains that Canadian law does not offer them a comfortable shelter. Unfortunately, fair dealing is not the same as fair use; fair dealing is more restricted in its application. Unless one’s artistic instincts can be pigeonholed as research, private study, criticism, review or news-reporting, fair dealing cannot even begin to help. (And please remember, fulfilling the category is only the first step, the second step is to satisfy the fairness test laid out in CCH Canadian.)

It seems lacking in national imagination that we devise laws such that Canadian art must be predetermined to serve a set social purpose. Sometimes art is just art. An individual has a vision and brings it to expression so that the rest of us can see it as well. End of story, or so it ought to be.

Fortunately, a solution is at hand.

Rather than continue to rely on an enumerated list of specific purposes for fair dealing, it would be more useful to recast the language in terms of an illustrative set of purposes. Let Fair Dealing read as “for purposes such as…” or, “for purposes including…”, or some variant thereof. This could alleviate the tension of what the category name seems to imply (and bring some relief to the writers who fear the explicit inclusion of education), and focus instead on what actually happens – what was copied, for what reason etc. As Appropriation Art noted in their submission to the public consultation in 2009:
“The works of art we speak of here do not compete with the appropriated material, nor does the value of the work of art derive from the value of its subject.” It is entirely plausible that works which rely on appropriation could pass the fairness test, all they need is shelter among the purposes of fair dealing.