I cannot emphasise the first line enough

I wrote the following article on copyright for the most recent edition of the Christchurch Art Gallery's Bulletin.

Two observations and a note

1. I am not a copyright expert, and I don't pretend to be one. I have a working understanding of copyright, and it's an issue that comes up a lot in my work life and my non-work/free-lance/free-time life. I'm grateful to Lewis Brown at DigitalNZ for reviewing this article pre-publication. All mistakes remain my own, etc.

2. While writing this article, I bemoaned the inability to use hyperlinks. Obviously, these couldn't be included in the print publication, but I have added some here. I've left the original footnotes intact as well.

NB: Like all original text on this blog, this article is published under a BY-NC Creative Commons licence.

***

First, I should make it clear that I'm not a copyright expert, or a lawyer. Instead, I'm somewhere between an interested bystander and a participant: consideration of copyright is part of my day job at the National Library of New Zealand, an important issue in my interest in open data and the digitisation of cultural heritage materials, and something that often crops up in my blogging.

In this essay, I’d like to look at how copyright forms part of the day-to-day running of an art gallery. First though, some copyright basics.

Copyright was first recognised in England in 1709 with the Statute of Anne, which gave authors rather than printers control over the reproduction of their works. It is a legal concept that gives the creator of an original work rights over if or how that work is copied, distributed, shown, performed, communicated or adapted, for a set period of time.

Today, copyright applies to a wide variety of creative works, from screenplays to maps. In New Zealand, the Copyright Act 1994 applies to original literary, dramatic, musical and artistic works, sound recordings, films, communication works and the typographical arrangement of published editions. Under the Act, copyright in literary, dramatic, musical and artistic works lasts for the life of the author plus fifty years.

Perhaps one of the most widespread confusions around copyright is whether as a creator you need to register your work to assert copyright. You don't. The minute you press stop on your digital recorder, take the brush from the canvas, or stop typing, you gain copyright over what you’ve just made.

The copyright owner is almost always the first creator of the work. There are two main exceptions. When you make a work as part of your job, your employer is the copyright owner. And when someone commissions and pays, or agrees to pay, for a work (other than a written work) the commissioner is the copyright owner.

And now to copyright in action.

There is a difference between owning an artwork and owning the copyright on it. While artists can bequeath or assign copyright control to a gallery, or licence a gallery to use their work, this is relatively rare.[1]

By and large, whenever a gallery wants to reproduce a work from their collection or a work from a temporary exhibition that is still in copyright – to put in a book, on a poster or postcard, on their website, in their magazine or annual report – they must seek the artist's permission to do so. (A provision is made in the Act for reproduction for the purpose of criticism and review, with credit to the creator.)

This is entirely fair, but it's also very time-consuming. This is particularly the case when digitising artworks to make them available online.

Copyright is a significant consideration in the digitisation of collections, such as the work undertaken by Christchurch Art Gallery to make their collection available online. Searchable collections like this are invaluable resources for researchers, be they art historians, students, or bloggers like me. They are also labours of love and perseverance for collecting institutions. Before a work can be digitised and displayed online, its copyright status must be ascertained. Generally, if a work is out of copyright, it can be copied without permission. If it is still in copyright, its creator (or creator's descendants) must be contacted and asked for permission – and sometimes there’s a fee involved. Sometimes, searching for the copyright holder can be a lengthy and ultimately unsuccessful process. Spend some time in Christchurch Art Gallery’s online collection and occasionally you'll see a notice saying 'Sorry, image not available due to copyright restrictions.' The Gallery’s registrar, Gina Irish, says that "usually this is due to either not being able to track down the copyright holder, or, very rarely, permission being declined by the artist or holder".

Earlier this year, staff at Te Papa blogged about copyright clearance for their Collections Online. Adrian Kingston noted:

"Sometimes we have images for things we don’t have rights clearances for; sometimes we have rights clearances for objects not imaged. Sometimes we have permission from an artist or estate for one work, but not others. We try to align our digitisation projects with rights clearances, but the overlap doesn’t always happen straight away."[2]

And as Te Papa's rights manager Victoria Leachman observed, sometimes artists and copyright holders are simply not comfortable with having their works reproduced online. [3]

Personally, I find it both frustrating and saddening when an artist refuses permission. Frustrating because the internet is now the first place I go with questions, and saddening because these refusals limit the audience for an artist's work. I was discussing this with a colleague recently, who said she wasn't surprised I felt this way because I'm an optimist about the web. However, it can't be denied that allowing images of their artworks to be available online reduces an artist's control over the context in which their work is seen, and knowledge of who is seeing or using it.

In recent years, and largely in response to the opportunities and risks the internet poses, a new movement in copyright has emerged. Copyleft describes the practise of removing some restrictions on copyrighted works, so that copies and derivations can be easily made and shared.

The Creative Commons organisation is at the forefront of the copyleft movement. In the words of founder Lawrence Lessig, Creative Commons aims to make it easy for "people to build on other people's work, by making it simple for creators to express the freedom for others to take and build upon their work."[4]

Creative Commons has done this by developing a set of licences that are freely available for creators to take and apply to their own work. The licences are recognised in over fifty jurisdictions, including New Zealand. As Lessig writes, if content is given the CC mark this "does not mean that copyright is waived, but that certain freedoms are granted."[5] The licences are basically a pre-emptive granting of certain uses of a creator’s work.

The most restrictive licence Attribution-Noncommercial-No Derivative Works (BY-NC-ND) allows redistribution of a work, denies alterations to the work, permits only non-commercial uses and requires the copyright owner be credited. By applying this licence to their website, the artist collective et al. made it okay for me to reproduce installation shots of the exhibition that's obvious! that's right! that's true on my blog. I followed the requirements of the licence and used the images as et al. permitted; et al. didn't have to spend time approving a clearance request from me. It's worth noting that using this licence on their website does not prevent et al. from issuing another licence under different conditions – for example, to a commercial publisher.

In my own opinion, et al. is ahead of the curve here. A series of posts on the Collection Australia Network blog in September this year revealed significant philosophical and practical differences between the Australian arm of Creative Commons and the Australian copyright collecting agency Viscopy over the ways artists might licence their work for use and reproduction.[6] I'm not suggesting that artists should be forced to rescind control (or royalties) as a consequence of the rise of the internet. I do believe, however, that now is a good time for artists and collecting organisations alike to look at how they can make use of copyright and licensing agreements to help bring more New Zealand art to the world.

More information

Creative Commons Aotearoa New Zealand
http://creativecommons.org.nz/
Information about choosing and applying CC licences

Creative Freedom NZ
http://creativefreedom.org.nz
A forum for New Zealand artists’ views on issues that have the potential to influence their collective creativity

Make it Digital
http://makeit.digitalnz.org
A one-stop shop for information and questions about creating digital content, including digitisation and copyright

Copyright Council of New Zealand
http://www.copyright.org.nz
A non-profit society providing copyright and cultural based industries with a range of services.

Notes

[1] Unless explicitly stated otherwise, copyright in unpublished works automatically transfers in a will. This would apply in situations such as when an artist leaves their archives (sketches, correspondence etc) to a gallery.

[2] Adrian Kingston, 'Te Papa's collections and digitisation', 11 June 2009, http://blog.tepapa.govt.nz/2009/06/11/te-papas-collections-and-digitisation/ accessed 27 September 2009.

[3] Victoria Leachman, 'Digitisation, Copyright and Collections Online', 10 June 2009, http://blog.tepapa.govt.nz/2009/06/10/digitisation-copyright-and-collections-online/ accessed 27 September 2009.

[4] Lawrence Lessig, Free culture: The nature and future of creativity, London: Penguin Books, 2004, p. 282.

[5] Ibid, p. 283.

[6] Copyright series, Collections Australia Network, September 2009.
Part 1 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2736
Part 2 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2738
Part 3 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2741