Tuesday, April 15, 2008

Copyright Law and New Media

Updated. I was reading today about the New Media Artists and the Law panel due to be held in San Jose, CA this Friday (more here) and I was interested to discover that the discussion will centre around “the ways copyright laws are implicated in new media art and the challenges artists face in this evolving area of the law.”

The term ‘new media art’ refers to:

[A]n art genre that encompasses artworks created with new media technologies, including computer graphics, computer animation, the Internet, interactive technologies, robotics, and biotechnologies. The term differentiates itself by its resulting cultural objects, which can be seen in opposition to those deriving from old media arts (i.e. traditional painting, sculpture, etc.) This concern with medium is a key feature of much contemporary art and indeed many art schools now offer a major in "New Genres" or "New Media." New Media concerns are often derived from the telecommunications, mass media and digital modes of delivery the artworks involve, with practices ranging from conceptual to virtual art, performance to installation. [Wikipedia, New Media Art (5 April 2008) <http://en.wikipedia.org/wiki/New_media_art> at 15 April 2008]

The implications of copyright law in new media art
There is no doubt that copyright law in its present state produces significant ramifications for the production and reception of new media art. In recent years there have been significant changes to the length of copyright protection and the scope of works to which it applies. These implications occur both with respect to the art itself and the technologies that are used to create it. The United States and Australia serve as illustrative examples of a trend that is increasingly occurring around the world.

The length of copyright protection has been significantly increased in recent years. The most recent of these in the United States was the 1998 Sonny Bono Copyright Term Extension Act which extended the period of protection for both existing and future works from 50 years plus the life of the author to 70 years plus the life of the author. Similarly, the same extension was made in Australia, although in this instance not made retrospective, through negotiations with the United States for the 2004 US-AU Free Trade Agreement .

The length of copyright protection holds many negative implications for new media art. In particular the impact and constriction of the public domain inhibits the ability for creators to draw on existing works and to reuse these in new ways.

The scope of copyright protection has also increased dramatically in recent times. In the United States the 1996 Digital Millennium Copyright Act, in particular, enacted laws which seek to support the use and development of digital rights management technologies. In Australia similar provisions were also introduced through a series of copyright amendment bills, the most recent of which was the Copyright Amendment Act 2006 (Cth).

Digital rights management technologies are the software and hardware products which code locks around digital expression in order to limit the uses and portability of protected works. The implications for new media art include eroding the ability for creators and the public to exercise fair use/fair dealing rights. These rights, whilst enacted to enable such things as non commercial transformations, personal, and educational uses, are subverted by the use of digital rights management.

The scope of copyright law has also been amended to extend to the vast majority of non commercial uses. Non commercial uses particularly relevant to new media art include sampling and remixing of works. The associated implications are an inability to explore and create derivative works.

The impact on the development of technology is also apparent. Copyright law has been used to impede the existence and adoption of new distribution networks. By inhibiting the dissemination of new media art, the illustrative, educative and communicative potential of the genre is limited. This in turn impacts on social progress and democracy.

The challenges artists face
Artists face numerous difficult challenges stemming from the present state of copyright law. These include a failure to realise the technical environment which will enable all citizens to actively participate and contribute, communicate with others and to develop business models which enable independent artists to support themselves.

Digital technologies offer a unique opportunity for the average citizen to become creators. Copyright law, in seeking to protect existing interest, inhibits the development of technology which would enable this to be fully realised. Furthermore, copyright law complicates the creative process for those seeking to reuse existing works by establishing an environment which requires lengthy and expensive negotiations for licenses with no guarantee that permission will be forthcoming. This is also the case for the creators of new media works who themselves are subject to the automatic protection of copyright and must take additional steps to allow their own art to be reused.

The flow on effect of the expansion of copyright law and the term of protection similarly inhibits the ability for new media artists to communicate with members of the public. This in turn restricts the activities and education of civil society which therefore impedes their ability to participate in democracy.

In seeking to support pre-existing forms of expression copyright law also restricts the ability for new media art forms to develop business models which would enable them to support themselves. If creators of new art forms are unable to support themselves from their craft this acts as an impediment to attracting those capable of the highest quality of expression.

The implications of copyright law with respect to the production and reception of new media art are apparent. As a consequence of this artists seeking to explore this genre face numerous impediments.

Further Reading
Lawrence Lessig, Free Culture (2004) <http://www.amazon.com/Free-Culture-Technology-Control-Creativity/dp/1594200068/ref=pd_bbs_sr_7?ie=UTF8&s=books&qid=1208243594&sr=8-7> at 15 April 2008

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