Julianna Yau’s blog

I wasn’t actually planning on attending Elsie Orenstein’s presentation on Copyright Law, Technology and Cultural Management, but I was tired and didn’t think I could handle any new information. It was also nice to get a feel for what type of information other artists and arts administrators were getting on the topic of copyright, and what their concerns were.

I took a bunch of photos, but they didn’t turn out very well because Elsie saturated the slides with info. She covered a lot of ground in an hour and a half, and I may have been the only one who wasn’t overwhelmed because of my prior knowledge of most of what she covered.

Here are my notes (~ indicates my thoughts):

“On the verge of Canadian copyright reform: A primer on copyright and the internet for artists and arts managers”

-What is the internet from an artist’s perspective?
potential worldwide audience
-source of research
-communicate exchange ideas w/in internet community
-platform for new forms of creative expression
-avoid censorship

Means of recognition/promotion
-own website/3rd party website
-brand image
-peer reviews
-self-publication option

Flickr and Rebekka Guoleifsdottir
-developed photo technique to create images that look good in thumbnail form
-got commissions thru Flickr exposure

Terry Fallis
-turned down by publishers and agents
-published 1 chapter at a time as a free, downloadable poadcast on own site, iTunes and podiobooks.om
-won Leacock award

Sources of income
-website sales of artist works
-third party wesite sales
-commissions from ads
-commissions for work
-royalties from collectives

US Hollywood Writers’ Strike – WGA 2008-2011 Settlement
-about uncertainty
-writers only getting flat-fee for downloadable version of their scripts
-now getting % of gross revenue
-studios can stream for free during 7 day window on all streamed content

What is the internet from a copyright lawyer’s perspective
-help client achieve their goals and avoid liability
-difficult because of how quickly technology is changing
-her view that current laws are inadequate
-courts are intervening with both good and bad decisions

-work gets distributed instantaneously
-how to control distribution
-how to get paid

-view by certain rights holder –> invitation to copy if it’s uploaded (“feels like free”!); particularly with younger users
-collective bargaining societies
~same type of info from most other overview sessions on copyright
-implied license –> courts consider whether certain uses are implied due to conduct

Perfect 10 v. Google – Sex, copyright & the internet
-market for thumbnail
-even thought the whole photo was displayed once clicked on by the mouse because Google only ‘framed’ content provided by a link to someone else’s server and Google itself did not make copies on its server”
-removal of content on demand (a reoccurring problem with Google, except the courts give Google leeway because they will remove content on demand)

-Canadian copyright law not based on common law
-legislators kept adding new things to the framework of old legislation
-fair use seen as user right in the US
-fair dealing in Canada finally seen that way

-WIPO, Berne
-how much fair use/fair dealing allowed
-DMCA (shhhhh)

-music industry setting prescience for other media
-p2p not quite illegal in Canada (???)

-whether a “making available right” should replace the current “right to communicate to the public by telecommunication” and extend to neighbouring rights
-TPMs
-moral rights – accreditation can be removed easily in digital works

-ISP liability
-IP addresses reused and reassigned because not everyone online at the same time
-notice & takedown –> court system in Canada; can’t deal directly with ISP
–IP address goes to a computer, not a user
~~p2p vs websites for notice and takedown?

-copyright applies to original work
-courts divided on how to define “original”
–”not copied”, “creative spark”, requiring some “skill, judgement or labour”
-in US, assembly of facts is not copyright protected; in Canada, this is different …which means databases can be protected by copyright

~overview provided, similar to my mind map… but in list form

-Robertson v. Thompson (S.C.C. 2006 decision split 5 to 4)
-compilations
-freelance writers
-CD archive of articles
-database – text only; no ads or layout
-do these databases attract copyright?
-majority of S.C.C. –> databases were structured so that the articles were decontextualized to the point that their connection with the newspaper edition was lost, even though date and page numbers referenced the original paper editions; but felt the CD was not an infringement because it reproduced the article
-Class action –> felt the look & feel of the content should not e a consideration
-US case –> Tasini v New York Times

-Canada considers p2p activity fair usage (huh??)

-CC license mentioned
-time & format shifting, remixing

-not all fair dealing provisions extend to the internet because of the wording of the legislation
~> but what about the intent of the wording?

-UMG Recordings v. MP3.com – Court rejected a “public benefit” argument

-Geist quoted from April 22, 2008
“eviscerate the fair dealing exception in the digital world”

-Michael Snow!

-Galerie d’Art du Petit-Champlain v. Theberge

~registration seen as easier in Canada because no copies of work required, but it’s not actually useful for artists
~how would we know when the work was created if the author is not known?

-impact of Disney on copyright

-Canada has reversionary terms for copyright (copyright reverts to estate after 25 years)

-Geist on “National Gallery Looking for Profits in All the Wrong Places”
-photograph of work –> secondary copyright –> Patry
-artistic merit of photo vs archiving of work through photos

-who owns copyright of photo taken by “a gallery”
-damage to work – moral rights
–need for contract wording on this

-common practice for an archive to charge for the copy of the image plus a license to publish
-impacts what we can create because of access and afforability
-market value of image which has no additional artistic value
-work involved in creating the image
–fee for getting image (admin fee) vs copyright fees of image

-gallery in Quebec w/online gallery; no money for artists; even though artists waived fees, they were not allowed to go through with it because they violated artists rights

-performances and personal recording devices
-SOCAN
-illegal copies in theatre
-artists okay vs house policy
-who owns the performance versus who is the host?
-theatre’s liability
-SOCAN says hall is responsible for remitting revenue

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I told myself I wouldn’t blog today because I need my rest for the Technology in the Arts conference tomorrow, but my inbox has been crammed full of goodies today.

MCM emailed me about this great experiment upon which he’s embarking: Calm Copyright Canada. Although that sounds to be a bit of an oxymoron in the recent copyright climate, it’s something we dearly need right now. The goal to deconstruct and reconstruct was, of course, an instant hook for me. The how-to/rules posted on the site show great insight into some of the barriers in discussions on copyright, and the questions are a good starting point for discussion.

Once things quiet down for me a bit (although, at this rate, I doubt that will happen until retirement, which is at least 40 years away), I’ll participate and try to expand the deconstruction and reconstruction to copyright in general. For now, I think it’s useful for us to stick to one topic so that the experiment can begin with more focus.

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I’m trying to stay on top of blog reading/writing, so here are today’s noteworthy links:

• Michael Geist’s list of 5 copyright myths
• Charlie Angus also predicts a new copyright bill (link via Digital Copyright Canada)
• C-10 still won’t die
• The US isn’t having any more luck with patent reform than copyright reform

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At copycamp, I met MCM, author of the well-known (at least by most copyright geeks) The Pig and the Box. I had actually read the book when it first was released, but didn’t remember it until I saw the cover. It’s a great commentary on the shift in how some creative works (like music and literature) can be distributed, and challenges our traditional concepts of where the value of something exists. What threw a wrench into my though process was the use of physical objects to represent intangible copies. Although I understand the necessity for that to make the concept easier to understand, it did make me temporarily uneasy because it’s already becoming increasingly difficult for sculptors and other artists who make tactile objects to explain that there is still a very real (and, often, steep) cost to production (not to mention our desire to make one-of-a-kind or limited-edition works).

MCM now has a new book, Panda Apples. He explained the life of this book as being something of a counter experiment to The Pig and the Box. With The Pig and the Box, he invested almost no marketing time or money, and didn’t start to offer the option of donations or actual purchases of paper books until he was actually asked for them. Unlike The Pig and the Box, Panda Apples is not merely a collaboration (with Len Peralta), but also being supported by marketing which The Pig and the Box didn’t have. A few days ago, MCM told me that:

Again, with very little marketing […] we’ve had about 2,500 downloads and 250 purchases. So already, in this first 24 hour period, I’ve technically earned more than I did on the Pig book after a year

Panda Apples is probably also benefiting from MCM’s past exposure from The Pig and the Box. It’ll be interesting to see how this turns out!

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I need to clear out some of the dozens of blog postings and websites to which I’ve been meaning to respond. So here they all are for your reading pleasure and my peace of mind. I dearly miss being able to use Ma.gnolia’s blog posting tool, which no longer works now that my website host upgraded to ModSecurity 2. There should be some other tools I can use to get this to work without disabling ModSecurity, but I don’t really have the time to fiddle with those right now.

Note: some of these links are months old…

Copyright clippings

• Copyright Protection and Appropriation Art
• The death of the “author” in scientific papers
• History suggests copyright crusade is a lost cause
• Design Piracy Prohibition Act: Historical Regression
• Annie Get Your Gun
• Universal: You don’t own those promotional CDs we gave you
• Wal-Mart learns a painful copyright lesson
• New Zealand copyright reform law schools US DMCA on fair use
• Fairuse obliteratus: Rowling to testify in Harry Potter case
• White Knight or Snow Job? (ebay & counterfeits)
• Russell McOrmond’s summary of CopyCamp
• Canadian Copyright Bill Likely in the Next Six Weeks

Orphan Works Bill in the US

• Orphan Works Bills have Arrived
• New Orphaned Works Act would limit copyright liability
• Orphan Works Update

Art clippings

• Huntsman faces Great Salt Lake issues
• Utah’s ‘Jetty’ threatened by oil plan
• Culture.ca Shutting Down

Tech clippings

• Adobe gives Photoshop Express EULA a much-needed revamp
• Canadian (RBC) bank hands out free Eee PCs

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I pulled the information from the proposed sessions from the CopyCamp2008 wiki into the main session list for CopyCamp2008. I also added my notes to the page for the Making a Living as an Artist in the Wired/Wireless World session, which has more questions and things to consider than actual answers. But it feels like we’re getting closer to answers…

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So I didn’t do nearly as much on-the-fly blogging as I planned.

And by “didn’t do nearly as much”, I mean “didn’t do any”.

It was an overwhelming and invinigorating amount of information to be presented in a short period of time, particularly with the initial barrage at the Speed Geek sessions. These were perhaps the most daunting, because I wanted very much to capture the information in text, but because we were standing for a few minutes at each presentation, I couldn’t type any notes. Even if I had the foresight to bring a [paper] notebook with me, I would have been at a bit of a loss because there was no easy way for me to write properly without a stable surface. Neither of these posed to be challenges for some of my colleauges, one of whom had no problems with pen and paper, and another more impressively typed on a half-open laptop held with one hand.

What was surprising is how many people I already knew but had not met in person… and what was more surprising is how many people knew me and read my blog (hi!). The surprise came not because it was a large number, but because I didn’t think I had more than 4 real readers, despite what my traffic logs tell me.

The main thing I wanted was more time. There were many, many persons with whom I wanted to speak (or speak more), but there simply wasn’t enough time for that to happen… particularly because everyone wanted a piece of everyone else. Although Misha told us that the unconference model came from people realizing the real work at conferences came from coffee breaks, I still had the strong feeling that many of the connections and indepth discussions I had were with no more than 2 other people outside of the sessions.

I came away from CopyCamp with a few predominant thoughts:

• the SAC proposal is gaining ground, and we’re generally moving with much more directive toward viable solutions to unmonetized file sharing than we were a few years ago (and even a year ago)
• creators and creator groups are NOT interested in stopping the dissemination of their works, but are interested in being able to receive proper compensation for the activity; how this should happen is still a big unknown, and there is still apprehension about whether open licencing of works will allow creators to earn a living; there are increasing numbers of creators who are willing to test the waters, and everyone is curious about the outcomes
• the focus is still very much on music, with some peripheral mention of film and 2-dimensional visual art; I did meet Ryan Taylor, who is with the Metal Arts Guild of Canada, who is also interested in finding a way to make use of the amazing groundwork being laid by the music industry to stay ahead of the game for 3-dimensional visual art (particularly 3-dimensional visual art which is intended to be unique)

Something which was mentioned briefly (or maybe someone said something else which triggered this thought… or maybe this is a halucination in my own memory) was the need to look at what creators are making now and whether the new models will be able to match that. This is, sadly, not the same as new business models being able to solve for problems that already exist with current infrastructure. Although it would be nice (and ideal) for us not not merely maintain status quo financially, but to push self-sustainability of creators to a more atainable reality, we must decide whether we want to create a new business model to keep status quo or to finally address the larger problem of how creative output can be funded.

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I haven’t been blogging much because I’ve been spending extra time on finishing a sculpture and taking care of the administrative tasks that go with it (primarily documentation). Here are some things which have been happening while I’ve barricaded myself into my studio:

• Verner calls for film, TV industry’s help to draft C-10 guidelines
• CBC provides a summary of the C-10 issue
• George Jonas from the Truro Daily News asks “Art Subsidies–Why do we need them?”
• Utah Gov. Jon Hunstman Jr. looks into the Spiral Jetty issue
• The government is increasing the Ministry of Culture’s funding by $63 million over the next four years (search for “The Entertainment and Creative Cluster” within the document)
• Geist puts the National Gallery of Canada under his copyright-microscope

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Today, I was informed that the Orphaned Works bill in the US has been resurrected. One of the problematic aspects of the bill is its assumptions that any unregistered work can be considered orphaned. This is a huge change to the way copyright currently works, and is a chilling proposed solution to the problem of locating a copyright holder (which I mentioned yesterday).

Some things to consider:

1. Currently, all works in the US (like in Canada) are automatically copyrighted to the creator. No registration is required. This greatly reduces the financial and administrative burden of some creators, and increases the financial and administrative burden of creators who appropriate/creatively reuse work. It also increases the financial and administrative burden of any other party who wants to use a copyrighted work in a context outside of fair use.
2. The Orphaned Works bill proposes that works which are not registered will be considered orphaned, and therefore not be protected by copyright or moral rights. This will allow greater access to works outside of the context of fair use, but swing the financial and administrative burden to the creators.
3. The cost of copyright registration in the US is currently $45 per work. For me to register the copyright in the US (if I were working from the US) for my modest collection of 27 sculpture would cost $1,215. For some, this could be seen as part of the cost of producing work and/or securing their ability to further generate income from their work. However, this would be impossible for artists who generate any amount of income based on a low overhead.
4. Registration of copyright in the US requires the submission of a copy of the work. This is not the case in Canada (and, oddly, Canada’s registration fee is substantially higher at $65 per work for most types of work).

A quick search on Google shows that this is has been a concern in the US for some time. As Mark Simon noted, this is also happening in Europe (although I am having a difficult time tracking down information about that, amidst all the US content).

Locating the creator of a work is certainly an issue, but these proposed changes are not the solution… primarily because the solution shouldn’t create a whole host of problems for those who used to be protected.

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Last Sunday, I was at the Copy Cats panel discussion hosted by Trinity Square Video in Toronto. The panel featured Johanna Householder, Jonathan Culp, Laura J. Murray and Jonathan Sommer. The discussion was very well attended (standing-room only for late-comers!), and the panelists provided a mixture of personal experience and legal background on appropriation in video art.

Johanna talked about the importance of appropriation as an artistic practise, noting that most artists who creatively reuse works do so because they love the original work. Jonathan C. later echoed this sentiment, and talked about the fact that he appropriates pop culture in his work because he is surrounded by it and is informed by it. Jonathan C. said that he was “scrounging from pop culture”, whereas Johanna mentioned the likeness of readymades and appropriation.

One of the points Johanna mentioned is one which has come up time and time again: the need to distinguish between artists’ use of art and non-artists’ use of art. I think there is general consensus that non-artists’ use of art (e.g. a company using a painting in their advertisements) needs to come with proper financial renumeration. Artists’ use of other artists’ work is more of a grey area, and from what I’ve been hearing, the problem isn’t that the artist who is practising appropriation doesn’t want to either pay for the use of the work or credit the other artist. The problem with being able to credit the original artist is that tracking down artists is often a daunting task, and the problem with paying the copyright owner is that it is difficult to license the material (particularly if it’s corporately owned).

Johnathan C. asked why we treat quoting/critiquing differently in print and other visual media (e.g. video). I think this is an excellent question, but it lands itself perfectly in the good ‘ol grey zone because the ratio of quoted to original work is much different in an artistically created critique than a textual one. Although there are textual equivalents to the type of work resulting in appropriation which often happens in film, I think it happens much less frequently (I may be wrong, though…I’m not as in tune with this as I’d like to be).

Johnathan S. provided us with a crash-course on copyright, and I was surprised by how few artists were already aware of the details of copyright law and how it applies to them. It always distresses me when I’m reminded of artists focusing so disproportionately more on their creative practise than on the more mundane things like copyright, finances and other administrative tasks.

Some of the information Johnathan S. shared which were new to me are:

• although the constitution is supposed to be the primary legal document, in practise, constitution doesn’t trump copyright act
• being able to articulate what was done when appropriating is wholly important if you ever go to court
• courts have identified that copyright is not a natural right

Laura gave the audience an overview of what has been happening with copyright in the political realm recently. Again, much of this was not news to me because of how closely I’ve been following copyright in the past few years. She then outlined what she thought were some changes we would want to see in the Copyright Act, rather than all the things we don’t want to see:

• broadening of fair dealing; movement toward fair use... more general statements about what is covered ~~> wouldn’t that leave the door open for the law being created purely based on case law?
• CCH –> clearer explanations of how fair dealing works
• attribution –> knowing where something comes from; add condition that attribution is done where possible
• set schedule to pay for use of work if copyright owner not found (to be paid if later found)
• penalty for copyright misuse

I wonder whether the movement toward fair use would actually accomplish what we want. It seems it may be a case of six of one and half a dozen of the other.

In the instance of attribution only being done where possible, the “where possible” clause may cause many heated debates of what that really means. Finding the original creator of a work has been an issue which is increasingly appeared in discussions of copyright. What I and others are starting to see is the need and possibility of a searchable database of art—something which new technologies is making more realistic.

The overall feeling I got from Copy Cats was that the same discussions are being recycled. This may not necessarily be a bad thing, considering there is so much education/awareness work yet to be done on appropriation and copyright in general. But it seems like those of us who are in the thick of things have gotten to the point where we need to start finding and creating solutions, rather than simply complaining about the problems.

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