A guide to Canadian copyright for the artist: get copy right

By Marcus Miller

Last January, Wikipedia’s 24-hour blackout shed some light on the struggle for the freedom to copy and its cast of characters. (On January 18 Wikipedia shut down it’s English-language website for 24 hours to protest two bills before the U.S. House of Representatives and Senate: the “Stop Online Piracy Act,” SOPA and the “Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act,” PIPA.).  Here in Canada, after decades of global leadership on issues of artist’s rights, we are today hindered with an outmoded model of creative production. Technological developments, evolving ethical and legal debates, and powerful lobby groups have outpaced the producer—distributor model. Big Entertainment is fighting, in the name of artists, to hang on to its property. After years of vilifying Canada as a pirate-state, Hollywood propagandists may finally win the battle on their northern flank when Harper’s Conservatives bulldoze the Copyright Modernization Act (Bill C-11) through Parliament this year. And while many important sections of the bill are progressive and conceive an open world of creative users, in the end, they are trumped and nullified by overarching prohibitions that protect corporate property against its fair and normal use.

A corporate cultural complex holds the lion’s share of stock options. It pays for the ear of politicians and it has lined up against us. It wants to characterize us as consumers and criminalize us when we use its products for anything more than their intended purpose: to be passively consumed! Big Entertainment is interested in a world of one-way shopping with no place for creative readership or critical reception. In this world there’s no reflection (let alone reaction), there are no viewers completing the creative cycle with unique experiences or intelligent perspectives. It’s time for Canadian artists and their advocacy groups (including the Canadian Conference of the Arts (CCA), Canadian Artists’ Representation / Le Front des artistes canadiens (CARFAC), Access Copyright and many others) to rethink traditional boundaries that so cleanly separate artists from viewers, reformat their positions on copyright and reclaim their mantels as visionaries and defenders of artistic self-determination.

Statute of Anne, 1710, Great Britain

Myra Tawfik, Professor of Law, University of Windsor argues that, with regard to copyright legislation, the role of government is to balance the legitimate, mutually dependent but often competing interests of three groups: users, creators and distributors.[i] She reviews the history of copyright legislation and shows that these groups did not spring onto the legislative table fully formed, but emerged over time. The three players made successive appearances on the stage − transforming the dynamic of the narrative with each appearance. The Statute of Anne (1710, Great Britain) was the first copyright legislation to conceive of copyright protection as a public responsibility. Prompted by the advents of mechanical reproduction and the pervasion of capitalist exchange, the statute attempted to buffer publishers’ property from the ravages of illicit copies. The protection of and fair compensation to “creators” as a distinct entity was not substantially enshrined for another 300 years! It wasn’t until the emergence of collective representative groups like CARFAC, ACTRA and countless others that the rights of artists began to be recognized.

The emergence of “artists” and the struggle for material recognition of their work is a case in point. CARFAC has championed artist’s rights for more than four decades. It has been a beacon for artistic self-determination and producer’s rights in the face of institutional and private interests and has changed the face of exhibition practice in Canada and around the world. Four years after the endorsement of CARFAC’s Exhibition Fee schedule by the Canada Council in 1975, the British Arts Council adopted the principal of paying artists for exhibiting their work. Today the notion of an artist fee is widely accepted. Non-commercial presentations of art are understood as fiduciary enterprises and artists are paid a form of “rent” when their works are exhibited. It is widely agreed that artists be paid for the display and reproduction of their work. It’s an evolving field, not everyone’s on board but the principal of compensation for the exhibition of visual objects extends far and wide—largely due to the efforts of Jack Chambers and the founders of Canadian Artists Representation (CAR) in the late 1960s.

More recently, Tawfik argues, the notion of “user” has emerged as a third term that must be considered in terms of “public interest.” The implication is that a user is a legitimate and fully creative entity—exceeding the category of consumer. The way people actually use cultural objects is by making them their own, trading them, changing them and mixing them. Down on the ground, Tawfik’s triumvirate of “users,” “creators” and “distributors” is actually much fuzzier and overlapping than legal determinations would have us believe. No more extremely is this the case than the apparent distinction between creator and user.

Contemporary culture depends on and thrives in the mash. In fact even cursory glances show that artists have always stood on the shoulders of their aesthetic peers and parents. Artists copy—they copy from nature, from each other and on and on. That’s how they work, and in that sense they are themselves users. You might even say that Art is essentially theft and that theft is its true license. Artistic license then is not the freedom to adapt or change the referent—that is inevitable and unavoidable. It’s the opposite: artists wield their skills attempting to reproduce it. We say to the photographer “take” a picture. Theft, copying and re-presenting are the artist’s first, crucial operations. This may be why artists are so often suspect (Jews and Muslims remember the biblical injunctions against “graven images”).

A crucial legacy of Modernist aesthetic and intellectual history is that many artists today will readily admit that their “creativity,” “inspiration” and “genius” derive, not (only) from themselves or various divinities, but in social and historical conditions—from the accomplishments of others. Today, Romantic links between “artist” and “genius,” more often than not, make people squeamish. Besmirching an artwork with the charge that it’s “derivative” is mostly anachronistic. Even if we allow for unfathomable sources in the creative act, we must also allow that artists are substantially, users.

The trick is to balance the interests of artists and users with those of the distributors, who we must admit (and count on to), act with creative volition themselves and on whom artists depend for their livelihoods as well as their public and historical legacies. Again, the categories are fuzzy and overlapping.

Art production today is hybrid and builds on painting and sculpture traditions to include performance, craft, design and a myriad of human/cultural endeavours. Some artworks are more readily experienced at the bus stop or as text messages than a museum. Much of the work that artists do today is non-commercial, public, critical or creative research. Artist Run Centres have promoted these developments from the start and the well-developed tradition of artistic self-determination is probably stronger and more developed in Canada than anywhere else in the world. The legacies of “Appropriation Art,” which are rooted in collage and anti-art traditions and today evolve through hip hop and contemporary “mash” cultures are all, somewhat accounted for in Bill C-11.

In fact, C-11 is quite progressive in its “fair use” provisions. It introduces the concept of “educational use,” distinguishes between commercial and non-commercial use and admits that parody and satire (read: art) have social value. However these allowances (exceptions) are undermined and trumped by the primacy given to digital locks. Unfortunately Canada, under C-11 will give more credence to digital locks (Technological Protection Measures) than any other developed country in the world.

The main problem with C-11 is that whatever progressive allowances are made for fair dealing are overridden by the primacy given to digital locks. In spite of extensive public consultations in which countless people and groups made it clear they disliked those provisions, Harper’s Conservatives are listening instead to Hollywood, EMI and Sony. The overarching provisions on digital locks in C-11 reduce the rest of the bill to idle chatter and throw up huge obstacles in the way of artists, journalists, activists and inquisitive people everywhere. Here’s an excerpt from the Queen’s University submission to the national copyright consultation in 2009: “Quoting from a book or a newspaper is established fair dealing, and it ought to follow that quoting from a digital file would constitute fair dealing too. If such fair dealing is prevented by digital locks, and those are given an extra level of legal protection, scholars and students will only be able to engage with an increasingly limited portion of the world around us.”

Recent proposals from Canadian arts groups deal with none of this. In fact many have suggested furthering restrictions of allowances for educational use, they omit exceptions for artistic use, they recommend removing distinctions between commercial and noncommercial use and they bolster the Technological Protection Measures provisions. These recommendations and the outmoded conception of artists and what they do coincide precisely with big corporate advocacy.

Artists in Canada and around the world need to look after themselves, but they also need to remember that they are users as well and very often, distributors. They need copyright law to stimulate and not hinder the freest possible flow of knowledge and culture.

Copy this – please.