digital image copyright

"Art at Risk: copyright, fair dealings and art in a digital age "

2010-12-03T13:22:00.000-08:00

From Flickr to Facebook to YouTube students engage both still and moving digital images and negotiate different permissions and database resources every day. In this research project we sought to develop guidelines around how to approach the use of digital images– and answered some of the questions that students ask everyday: What can you download from YouTube? Is everything on Flickr available to use? Can I cut this image up and call it my own? What happens if I upload my project to Facebook?

Our goal was not to theorise or make general assumptions but to take an in depth look at a range of scenarios, and ask ‘how do we understand copyright?’, ‘what kinds of ‘truths’ do we tell ourselves in order to engage with contemporary media?’ and, ‘what fits within the legal and ethical boundaries of fair dealing?’ In the case studies we did not assume conclusions, rather we filtered possible answers back and forward through the open question “can I use this?”

We discovered in the course of the project that the first step in understanding copyright was that legally many of its concerns are about forms of property. Who owns the rights to an image becomes complicated when that image is digital. As soon as the digital image is understood in this way it is possible to understand why image rights are hotly contested in international frameworks. Legal approaches to the digital image have been spearheaded by desires to control not only the circulation of the image but the technologies which enable the use of media. This is an increasingly complex area that ties up image rights into complex reinterpretations of historic copyright frameworks and overlapping licensing regimes.

The protections and rules developed for copyright in text do not easily equate or translate to images nor to uses of the digital image. This led us to look at the boundaries of physical and digital space. The rules of physical space have been unsuccessfuly transposed into digital spaces and things move in different ways. We looked at real law in virtual worlds and noted the inequities particularly in the area of non-commercial and amateur art practices. We also looked at tensions which exist between western style copyright and existing structures of traditional knowledge which it often overlays without acknowledgement.

Our study included a survey of teacher responses to the scenarios. While we could draw no strong conclusions from these, as a body of responses we were able to see that most teachers acknowledged the complexity of the subject in that there were very few straight answers. In addition the variety of responses illustrated that while there is a body of knowledge at law on this subject the general or common knowledge that exists is widely varied and sometimes at variance with the law.

We looked at many scenarios holistically from legal, art and ethical perspectives. Simultaneous considerations of these aspects was necessary when making decisions around many of the issues. The role of the digital image in the age of copyright has implications for the way in which art teaching is delivered in schools at all levels. Currently the messages we are receiving loud and clear from Corporate and Law sources is that we can look at appropriation art historically from a pre-sampling period in time as historical artefacts. The irony is that some of this content which is now vigorously protected was at another time produced by animators and musicians in the not too distant past when they made use of others’ content (freely as in without permission) and became rich off a rich public domain before they lobbied seriously to close the gate to new-comers under copyright term extensions and the erosion of Fair Dealings.

Have we entered into a medieval era when code, contract and copyright in effect act to censor artists’ voices? Siva Vaidhyanathan’s summation of the four surrenders we make in the copyright minefields have been quoted many times. He says lobbying by corporate interests have rigged our copyright law to the extent that we surrender balance to control, public interest to private interest, and nation-state to multilateral NGOs as global multimedia companies step in and step on our copyright permitted acts. Finally, he says, we surrender contemporary and past culture to technology.

What started as a practical enquiry into various classroom challenges has brought us to realise that the greater picture surrounding this research project is the sustainability of an area of contemporary art practice, free speech and freedom of expression. In effect we question the future of what our society will look like when some forms of art have been completely denigrated by corporate interests via their lobbied for legal channels in what we might increasingly view as a form of visual eugenics. Susan Bielstein’s parting comments in her book, Permissions, also questions this. She asks what the cost and value to society is of the current state of anxiety and ignorance which abound in the hyperbolic growth of the all consuming permissions culture as an economic model. She considers the current situation as a precursor to dystopia.

If we are to be responsible teachers and practitioners of art in digital age, we need to take into account the risks that are now inherent in any engagement with images and educate ourselves in the best and safest ways to navigate this field. This project is one attempt amongst many to do this.

Art at Risk: copyright, fair dealing and art in a digital age is a collaborative research report of a project undertaken by Dr. Susan Ballard and Pam McKinlay at the Dunedin School of Art, Otago Polytechnic 2009-2010. It was funded by Ako Aotearoa Southern Regional Hub, the Dunedin School of Art and Otago Polytechnic Research Committee.

http://www.otagopolytechnic.ac.nz/schools-departments/art/research-search/academic-projects/art-at-risk.html

"Art at Risk: copyright, fair dealings and art in a digital age "

2010-12-03T13:15:00.001-08:00

Art Law Symposium

2010-12-01T23:13:00.000-08:00

This symposium, the first on this topic in New Zealand, was organised by Peter Stupples and sponsored by the Faculty of Law, University of Otago and The Dunedin School of Art, Otago Polytechnic.

Art and Law have long intercepted each other in human history. Images belong to groups and cultures where they act as symbols of authority, religious sentiment or marks of identification. The way they are used and by whom are often fraught with disputes over rights. Within each culture these disputes of use are couched in different forms and contexts - custom, oral heritage, documented history, case proceedings, the established instruments of legal authority.

In the twenty-first century rights over images are pulled two ways - towards the freedom of globalised appropriation and towards the restrictions imposed by copyright to protect the rights and incomes of originators and owners of property. This symposium drew together speakers from throughout New Zealand and Australia to look at historical examples and contemporary issues. For more information about the symposium see here.

Sustainability of Art Practice

2010-10-21T15:01:00.000-07:00

The World Commission on Environment and Development has defined sustainable development as "meeting the needs of the present without compromising the ability of future generations to meet their own needs".

Sustainability is commonly assumed to relate to environmental or ecological concerns. How does sustainability of art practice fit within this definition? The Arts Council of England believes that great art inspires us, bringing us together and teaching us about ourselves and the world around us. It has been a cornerstone of Art to be concerned with cultural and economic as well as environmental subjects and thus the notion of sustainability now encompasses the more common ecological as well as a wider cultural one.

Artistic sustainability adopts a critical position to the following: Environmental and ecological responsibility, Educational sustainability, Technological sustainability – technology as a medium, Technology and communities, Economical viability and stability, Cultural infrastructure and communication.

Environmental and ecological responsibility.
This grew out of ecological movements which notably in the 1970s found expression in things such as land art. In practical terms this has meant artists walking the talk. This follows the logical justifications of reducing, reusing, recycling and using non-toxic alternatives as a means to protect natural resources for the future and it has gained increasingly widespread attention. There are also other challenges affecting art aside from the practicalities of "greening" art practice. One might say that art has always seen itself as having an ethical imperative to continually raise awareness of issues. In the late twentieth century onwards this has included hot environmental topics such as Global warming and bio-engineering of the food chain. Art has a need and in turn is needed to examine contemporary and historical worldviews or social realities and the (global) physical environment around us.

Educational sustainability
Artists and students push at the boundaries of the seen and known world and delve into their imagination to reveal new possibilities and ways of voicing these. Artists find their voice through their art and this needs to be recognised. This is a form of free speech or freedom of expression and it needs to be safeguarded in the same way as academics view their academic freedom. Cross-disciplinary research is an example of a sustainable approach which contributes to a better and more holistic understanding of the world and the issues it is facing. Collaborative approaches offer new ways of exploring and expressing ideas in Art and contributes to the growing body of knowledge and discussion in the public sphere.

Technological sustainability – technology as a medium
Isolation can lead to duplication of resources and fragmentation of outcomes. Anyone involved in using digital mediums to create art is well aware of the swathe that new “progress” cuts through older technologies. The advances in technological hardware and software leaves in its wake a jumble of obsolescence and incompatibility of disparate digital technologies. This has the potential of leaving digital works locked up, as if in a lump of concrete. If they cannot be accessed and thereby unlocked, the information and data within remain as useless digital-cubits and the artist's vision un-rendered.

Technology and communities
Digital platforms and content are also viewed as immaterial assets (information commodities) that are capable of connecting to and playing a part in the real world. This both impacts on the conditions for creating art and provides the subject matter for critical reflection. The sustainability of art has to be considered in the context of our global information society of which it is a contributing factor. Sustainability is considered when looking at relationships within these networks. The future viability of networks will allow for sharing of content and also participation and collaboration as part of the social and cultural response. Another definition of sustainability is that the basis of truth lies in connectedness. It needs to be emphasized that cultural, economic and socio-political contexts shift in meaning in different societies so sustainability can only be understood as it relates to a specific community. Connectedness is also the rationale used by mobile technologies that ideally provide new platforms for communication. The same technologies are behind increased security and surveillance measures and some of the questions currently being raised are critically exploring the issues surrounding privacy and identity that emerge from tensions between security and the perception of erosion of civil liberties.

Economical viability and stability
Tizianna Terranova's ideas of complex relationships of net users and user produced content come into play when we address the economics of Web 2.0. We add to this notions of current economic models of art (and the art market), where art is seen as an art object and digital art as commodified content. Many aspects of intellectual property and copyright were developed along economic constraints, particularly for distribution where a work of intellectual production is seen as having little intrinsic value until it assumes a form that allows it to circulate through a marketplace. In this model the artist might be viewed as wage-labour which ignores the aesthetic values and other creative impetuses involved in art creation and communication. Artists are also viewed in other terms, proposed by Maurizio Lazarato, as a source of "immaterial labour" where control of their work may lose out to capitalist commodification and controls of the wider medium (of the internet).

Cultural infrastructure and communication
This includes social and community networks and the future cohesion of these. One of the variables is technology as discussed above. Increasingly in the 21st century connectedness through communication networks involves technology. As networks spread their tendrils into far flung reaches it becomes vital for their sustainability to be using a common language both in code and for the communication of shared content.

Use of visual elements can enhance cross-geographical and cultural possibilities of understanding (being also mindful that many traditional forms are rooted in ideas that are seated in relationships and histories and lore within their originating communities). One way of finding commonalities is using real world examples from the society's culture which are visually prevalent around us as facts of our modern environments. In a discussion paper on creative uses by The Australian Attorney General's office, they discuss the use of many copyrighted and trademarked materials as "non-substitutable". These were discussed as productive and not only reproductive elements in transformative uses such as parody and satire and are the thinking behind the legislative amendments to the Australian Copyright Law in 2006.

For art to address the sustainability of culture it also needs to probe into the sustainability of resistance when faced with entrenched corporate practices and intellectual property laws which refuse acknowledgment of even the bare basics of visual literacy. Artists need to be able to address the economic models of corporations and market capitalism in the information society. This includes questioning the processes of commodification and the factors behind them and to be able to reflect these accurately in the known world. Sometimes art practice needs to make use of non-substitutable elements which make up the visual noise that saturates our contemporary aesthetic environment as a language tool and reflective model.

Artists should be free to explore the boundaries of their imagination and its intersections with copyright, privacy, free speech, fair dealings. In art history and theory students have learnt about the historical and contemporary contexts for art works and practice, including appropriation art. In the 21st century a permission culture has erupted which threatens new interpreations of existing cultural icons with painful legal exorcism.

Cultural sustainability in all its dimensions is of paramount importance. This includes support for the visual arts; the freedom to critique society in all its registers and the drive towards resilience. Dr Strangelove reminds us that "society stagnates when meanings are treated as private property". Artists need to map choices in a world in which art has few protections and is actively attacked through many forms of bureaucracy, ranging from take-downs to censorship, indifference and cosmetic measures which do not address the fundamental dangers confronting cultural sustainability.

Radio NZ on ACTA

2010-04-16T19:26:00.000-07:00

This afternoon I chanced to tune in to an interview with Adrian Johns, author of Piracy: The Intellectual Property Wars from Gutenburg to Gates, on Simon Morton's This Way Up.

In recent times I can recall programmes on copyright, open software, patents and indigenous knowledge(s) on Morning with Kim Hill, This way Up, Insight, Arts on Sunday and interviews with renowned international experts such such as Lawrence Lessig, Richard Stallman and Jane Ginzberg, as well as industry and legal experts from closer to home such as Mark Harris and David Niven.

Thank you Radio NZ for timely programming which provides insight and background into these issues. Many of these programmes and interviews are available as podcasts from the Radio NZ website. Give them a day or two to make the Adrian Johns interview available.

http://www.radionz.co.nz/national/home

post-PublicACTA

2010-04-13T15:29:00.000-07:00

Thanks to InternetNZ for organising and hosting the Public ACTA meeting in Wellington at the weekend and thanks to keynote speakers Michael Geist (from Canada) and Kim Weatherall (from Australia) and the New Zealand panel for giving up their time to frame the background and parameters of the discussion sessions that followed.

The meeting's outcome was a Declaration and Petition to treaty negotiators
http://publicacta.org.nz/wellington-declaration/. The New Zealand round of talks are scheduled to take place shortly. I was cynically expecting an announcement on April 26 which is World Intellectual Property Day, but it appears this is not going to be the last round after all.

For those who missed the meeting there are video links to the keynote and panel talks at the above link.

This work is licensed under a Creative Commons Attribution 3.0 New Zealand License.

pre -PublicACTA

2010-04-13T15:13:00.000-07:00

This was going to be a place where I pulled my thoughts together prior to the meeting but the high spirits of multiple small children on holiday meant I scrambled to put my thinking cap on as I was on the plane to Wellington.

So where do you start if you want to know about ACTA? I first came across ACTA in Mark Harris's 2008 submission. http://acta.tracs.co.nz/tiki-index.php?page=Completed+Submission. However, in 2010 one need look no further than the blog of Canadian Michael Geist which has the essential background of the Treaty (leaks) and regular updates as to its progress around the world http://www.michaelgeist.ca/content/blogsection/0/126/.

So why should I care? Why might you?
It just doesn't feel right in my bones Nany McPhee.

It seems to conflate and confuse the parameters of individual IP areas. These are infringed on and enforced differently. There needs to be a definition of counterfeiting and limitations on the scope of the treaty.

It seems to contain a creeping front of claims in favour of copyrights holders at the expense of permitted exceptions including Fair Dealings. Where is the space for private acts - the line between commercial and non-commercial seems wraith-like and intent is not taken into account.

It seems to dismiss with the wave of a super-power hand the efforts we have recently put into new amendments to our laws and sovereign processes – in particular the copyright and new technologies amendments. I wonder at the countries excluded from the talks and why and what implications this will have for current discussions going on at WIPO around Indigenous Knowledge, the impact on customary law and in this country the Treaty of Waitangi. It seems like a convenient side step of representation and democratic process. Those outside the ACTA treaty are disenfranchised but yet will ultimately be held accountable to its terms in future agreements. Michael Geist has referred to it as an "exclusive country club approach". In a nation more familiar with ball sports I would say they are poor sports who have picked up the ball and run off the pitch when a penalty didn't go their way.

I am wary of the proposed changes to access at digital borders. Physical borders are different to digital borders. Independent carriers are like the Post Office, they are not the police. Is the ACTA treaty attempting a form of enclosure along the lines of the inclosures acts in England.

And finally I am wary of the changes that might affect generic pharmaceuticals which are deemed okay in one country but "counterfiet" in others. This has potential for consequences on our health budget (in particular Pharmcac negotiations), personal health costs and changes to the landscape of public health care.

If it seems like there are a lot of "seems" it's because we just don't know. There are no formally released documents on which to base any real analysis. This in itself is of concern.

Three memories of things read and heard come to mind:

David Nimmer, a respected copyright scholar who attended the Geneva Convention (WIPO) called it an "international conference" for an "American problem" - in Alan Story's "An Alternative Primer on National and International Copyright Law in the Global South", CopySouth, 2009, p.62, f.214.( although I hasten to add that WIPO, not ACTA, would be a more appropriate forum here, as ACTA seems to deal primarily with intellectual properties.)

David Rothkopf, a Clinton administration official, wrote "it is in the economic interests of the US to ensure that if the world is moving to a common language, it is English, that if the world is moving towards a common telecommunications, safety and quality standards, they be American, that if the world is becoming linked by television, radio and music, the programming be American, that if common values are being developed, they be values with which Americans are comfortable". (From "In Praise of Cultural Imperialism", Foreign Policy, Summer, 1997, in Ibid, p.48, f.158.

A documentary where Brett Taylor interviewed Bruce Layman ( formerly of the Clinton Administration) who said that in the 1990s the US hatched a plan to trade the economy of things to an economy of ideas. This was a part of the WTO system which fast tracked the globalisation of labour and service industries. He continues "we met our part of the bargain but these other countries didn't meet theirs . . . after a decade of digital copyright it also has not been achieved . . . so I am thinking may be we should have forgotten IP rights internationally and gone for labour standards and the environment." To which Brett Taylor's voice over replies "But instead of pushing for Fair Trade policies, the US is trying to build an economy that can't be built". From RiP: a Remix Manifesto- Chapter 12 "Which Road to the Future?" (taken from my notes at the Film Festival - I haven't had time to go back and transcribe quotes perfectly from the movie).

This work is licensed under a Creative Commons Attribution 3.0 New Zealand License.

Book Review: Imagine there is no Copyright by Smiers & van Schinjndel

2009-11-29T13:31:00.000-08:00

Book Review

Today’s lesson in imagination will be brought to you by the letter “C” which stands not only for copyright but contract, code, censorship, confiscation and colonization.

Joost and Marieke open their book with an introduction to the word copyright, which covers two different principles - defence of artists’ (moral) rights and the (economic) right to make copies, which have been conflated under one English term in international law. They leave us in no doubt, that in the main, it is the copyright owners (not authors) who own the copyright/s; the owners (not authors) who own the distribution and marketing ventures and the owners (not authors) who dominate the consumers’ field of choice by pushing their product to the exclusion of others (their competitors). This not only has ramifications for the arts and access to knowledge but presents a challenge to net neutrality. This “gives them far-reaching powers in deciding what we see, hear or read” and by corollary “what we don’t see, hear or read” and thus an increasing degree of control over cultural and creative diversity.

Like Lawrence Lessig the authors make reference to the growing sense that corporations would like us to be merely passive and grateful consumers of their products and not participants in the continuing story. These owners get to decide IF, when and how the work can be seen and further how it may function. Joost and Marieke refer to Rosemary Coombe who says when we are not allowed to test the meaning of art this prevents on-going communication and dialogue around the work, which is a quintessential part of being human. This is in complete contrast to science which has as one of its cornerstones of scholarship the right to revisit, consult and test prior work in order to propagate future ideas and practice. Perhaps a useful addition at this point would have been an exploration around the question of “what is an author” and how stands the work as an entity?

Copyright is often cited as an incentive to creativity by rewarding artists and authors for their creative outputs, but economists increasingly note that “the link between income and copyright is largely irrelevant for most artists (excepting a very few stars)”. Firstly the flow of creative innovation is not contingent upon (Copyright’s) reward. Secondly copyright does not “protect” against others using ones work - copyright has to be asserted and contested to be “protected” and this takes financial resources which many artists simply do not have individually at their disposal. Thirdly many works of traditional cultural and creative importance are not covered by an individual property rights system such as copyright. These may be collectively owned, have passed the copyright duration time and fail the novelty test but none the less they are part of a customary pool of knowledge which we might call Indigenous Knowledge or IK. To put it plainly IK is not IP and the IP grab-bag of IK is nothing short of a form of confiscation and colonialism (played out in much the same fashion as land “discoveries” and occupation has played out in centuries past by mostly the same technologically advanced countries).

The 1990s saw a plan to transform the economy of ‘things’ to an economy of ‘ideas’ through the WTO which furthered this ideology through “flexibalisation” of labour in manufacturing and the globalization of services. This produced further incursions on local knowledge and local laws via international treaties such as TRIPS (Trade Related Aspects of Intellectual Property). The authors support the view of economists who believe the price for the “endless extension of rights [has been] too high, for developing nations as the “compulsory high level of protection” only benefits the richer countries in the agreements. They set out the case for a kind of copyright imperialism where the irony is of course that many of those same rich nations prospered off the back of a rich public domain which they are now bottling up and selling back to the world (or not in many instances where there are insufficient funds for some to gain access.)

We take up the next lesson in the letter “C” at code and contract and the authors introduce a relatively new character in the copyright saga – Creative Commons. In their appraisal of the Creative Commons licensing system Joost and Marieke say that while offering some solutions it is cobbled by its very nature in that it is a coalition of the willing and thus cannot address either the stranglehold of chains around existing copyrights or the fact that strong corporations are the key holders of those chains and are unlikely to participate.

The next chapter tackles the “level playing field” and how with the application of competition or anti-trust laws and prohibition of cross-ownership the control of the conglomerates could be decreased. These ideas are considered through mini case studies grouped by categories such as authors, books, publishers, music, broadcasting, music, films, visual arts, photography, design and medical patents.

All in all the authors set out their rationale for why copyright as a system needs to be at the very least reworked and possibly abandoned and poses the more difficult question of how one might dismantle the big corporations who have control over it.
Joost Smiers and Marieke van Schijndel, Imagine there is no copyright and no cultural conglomerates too..., Better for artists, diversity and the economy, Published byTheory
on Demand #4, Amsterdam 2009, Translation from Dutch: Rosalind Buck,
ISBN: 978-90-78146-09-4
http://www.copysouth.org/portal/node/53

Charter for Innovation, Creativity and A2K

2009-11-16T15:09:00.000-08:00

A while back I referred to the Berlin Declaration when Otago Polytechnic supported the signing of the "Cape Town declaration for Open Education". Embodied in the Open Access declaration is the idea that publically funded research should be made available to the public in an open access framework. This is one prong of an ongoing commitment to breaking down barriers to sharing knowledge.

A couple of weeks ago a large number of people met in Barcelona at the first International Forum on Free culture and Access to Knowledge to discuss practical measures to bring some sort of equity (back) to the internet particularly those rights of access to the public sphere and Fair Use which are quickly being eroded by the service industries and corporate interests privatising public domain knowledge and extending copyrights for ever increasing periods in the name of protecting artists' best interests. This is bringing about a state of creations whose fruits to use Charles Cronin's words are "Dead on the Vine". (1)

Back to Barcelona - the result of the forum was a Charter for Innovation, Creativity and Access to Knowledge. In the main the "demands" for legal reform are moderate and mild mannered. They base their platform on Free culture (as in “freedom”, not as “for free”) and ask for greater protection of the knowledge commons and public domain, the right to quote and fair use and rights to access.

For a more radical (as in ideas) critique on the economics of current IP-business models one need look no further than at Joost Smiers and Marieke van Schijndel's recent essay "Imagine there is no copyright and no cultural conglomerates too" where they propose another model that is "better for artists, diversity and the economy". Their book includes a detailed analysis of copyright issues, micro-case studies of alternative business models and lessons in playing on 'unlevel' fields with loaded balls.

Also available through the Copy/South portal is the Copy/South Dossier which includes an interesting and not always flattering appraisal of Creative Commons. Hot off the press I recommend Alan Story's "Alternative Primer in copyright law" which is up there with the EFF's "Teaching Copyright" as a means of offering information rather than intimidation about using copyrighted content.

(1) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1460449

The Bigger the Front ,the Bigger the Back - Go see RiP: A Remix Manifesto

2009-08-06T18:13:00.000-07:00

Today is the last day for submissions on the issue of section 92a in our copyright and new technologies law reform bill. Our politicians need to look back in history at the reasons copyrights were granted in the first place and remember it is a commercial bargain struck between all parties (creator, distributor and consumer) for a limited time. There is a groundswell of opinion that the whole issue of copyright is out of balance and further there are some individuals who wish to throw the baby out with the bathwater. I believe the principles of copyright are sound but that some aspects of our regulatory mechanisms are out of kilter. One does not need to look far for examples of instances where if one of the parties in a negotiation is continuously disenfranchised they will walk away from the table of arbitration.

It is time to look at a koan “the bigger the front, the bigger the back". Big business has deep pockets/ financial muscle and big political lobbying clout. This is made crystal clear in a movie I saw last night at the Dunedin Film Festival. The movie is more than a "them vs us" blaze across familiar territories it also includes the bigger picture touching on how the US has pursued the growth of its economy internationally and whether in the end they had used the right model. Go and see RiP: A Remix Manifesto. It is a cinematic tour of Fair Use logic in a Fear Use world.

Fair Use Guidelines

2009-05-27T18:05:00.001-07:00

Here's a sensible addition to the Fair Use in remix debate aside from the usual, that is, one side saying that there needs to be some law reform for amateur use and the other saying that any "use is abuse" and therefore theft and therefore piracy, which has resulted in a querilous state of FEAR Use!

Recut, Reframe, Recycle is a study by the Center for Social Media. The study looks at a wide variety of uses —"satire, parody, negative and positive commentary, discussion-triggers, illustration, diaries, archiving and of course, pastiche or collage (remixes and mashups)." It comes up with 6 kinds of circumstances when Fair Use use of copyrighted material might be considered legal. Essential viewing. They also have a flier on PDF for "free use" copyright situations.

A couple of jurisdictional provisos. We have "Fair Dealings" in NZ (US has "Fair Use") and for another in NZ we don't have Parody. Now why is that? Why, when we have just been through years of Select Committees for Amendment changes to the Copyright Act, do we not have a clause that allows for Parody?

The Ausies got a Parody clause when they were bringing their Copyright Act into closer alignment with America for their Free Trade Treaty and WIPO. They also slipped in a nice little openener for satire. We want one too - parody clause that is, I'm not sure about the free trade.

A new heap of words

2009-05-25T02:41:00.000-07:00

It seems that I am now blogging about, amongst other things, compost so I have created another little corner in my bloggersphere in which to continue this train of thought. Not that the re-use and recycling of creative expression has nothing in common with compost. No, indeed the more I think about it, they have a lot in common. It's just that in my other blog I wish to further my exploration of "hot" heap design and function, and I may come to consider the state of copyright as a" cold" heap. If you have no idea what I am talking about you may need to read up on compost systems to come to some understanding of this analogy.

Digital Images and Open Access

2009-03-10T18:06:00.000-07:00

If any of you have ever added or thought or adding an image to your web page or article then you would have (or should have) had cause to think about copying rights of digital images. In the first place the 3% rule isn't really applicable to images and secondly a different set of rules kicks in because in a Copyright Law sense you are “publishing” to the Internet.

The most sensible way to proceed would seem to be to use "free" images such as those with certain permissions already granted by a CC licence or those in the Public Domain (a huge selection of these is available in WikiMedia Commons mostly available under GPL licences). But for the purposes of many scholarly articles you need to use a specific image to illustrate a certain point to add to understanding and stimulate debate. Often the high quality images you would like to use come at a price.

If the image is already available on the Internet you may think you can just go ahead and use it. But easy-to-use does not mean free-to-use. Firstly look at the “Terms of Use” conditions of the page. They may indicate that may use the image under certain conditions such as for educational purposes, correct attribution of authorship and sometimes a small fee.

The rights people assume they have under Fair Dealings (NZ) and Fair Use are not rights per se and when “publishing” one needs to ask permission. This may be easily achieved through a Contact link on the web site or nigh on impossible if the copyright owner or custodian is not traceable.

Back to the fees. More and more scholarly publishing is being done on the Internet instead of or as well as hard copy publishing of the same material. In some cases Copyright custodians of Public Domain objects have been charging exorbitant fees for use of “their” images. The Max Plank Institute for History of Science has recently released a set of recommendations for Open Access to images which recognises copyright owners rights, custodians costs incurred in digitising collections and making them widely available and publishing needs in the 21^st century.

Pick it up and take it to your local Art Gallery, Library and Museum - where do they sit in the spectrum of key holders?

BlackOut Protest

2009-03-02T13:40:00.000-08:00

Take a look at the Creative Freedom Foundation Website. Subscribe to their newsletter and stay informed about what is happening to copyrights in NZ.

Implementing Otago Polytechnic IP Policy

2008-08-21T02:06:00.000-07:00

Otago Polytechnic has a great new IP Policy which supports free and open access.

When looking at ways to implement aspects of the Policy in everyday teaching life some confusions have arisen. These range from confusion about the concepts of "IP" and "Copyright" to more practical concerns of staff responsibilities under the policy/ies. These include; clarifying uncertainties with regard to copyright, such as Educational exemptions and Fair Dealing in New Zealand Law, licencing their material, other non-Copyright issues such as ethics (considerations of privacy law), Maori IP and Copyright Law in non-NZ countries. As use of digital content is now a global issue some understanding of the impacts of other jurisdictions and international treaties is needed.

To this end we are having a panel discussion workshop on copyright issues in the coming week.

Open Access declarations

2008-08-21T01:34:00.000-07:00

There is an idea about that publically funded research should be made available to the public in an open access framework. This idea has been linked by many to the Berlin Declaration of 2003, expanded in more recent times to look at the inclusion of datasets and other academic outputs.

From Berlin Declaration we get a definition of Open Access as having the following criteria:

Irrevocable free access, worldwide,

The licence to copy, use, distribute, transmit and display the work publicly,

The licence to make and distribute derivative works if proper attribution of authorship is given,

Availability through at least one online repository with long-term archiving capability.

Closer to home we recently supported the signing of the Cape Town declaration for Open Education.

Open Access - technical and copyright issues

2008-08-20T19:32:00.000-07:00

With regard to Open Access Repositories I started looking at technical and copyright issues and came to the conclusion that with effort and commitment these were surmountable and that a substantial body of practice and knowledge existed for us to draw on. There are many advantages and opportunities which can be gained from such a move, recognising that a move to open access will involve a necessary amount of practical “effort, expense and upheaval"[1]

I see Open Access Educational Resources as fitting somewhere within a Research Repository framework with the Research Repository at the tip of the iceberg administered by the library and/or project staff and the OER linking from it administered by departments and/or individuals.

Three issues I have flagged when I have been looking at other case studies are copyright, metadata and funding.

Copyright risk management includes copyright in authors’ “rights” management, contract/licencing and third party copyright compliance. Some of the issues around metadata involve quality assurance. There are different issues involved depending on two scenarios; authors self-archiving or professional staff adding metadata. Work flow and workload are issues which will come to the fore if professional staff are adding metadata and/or vetting OER for copyright compliance. Due to the potential quantity of resources which could fall into the OER category it would likely be unfeasible for library staff to undertake this work and OER would be administered at a departmental or individual level.

I don't have any musings to offer on funding. The issues other institutions have raised include: Where does OER fit within the current funding models? Do these costs need to be built in to development of grant applications and how are they viewed within the current research funding model?

[1] Digital learning challenge: obstacles to educational uses of copyrighted material in the digital age, Foundational White Paper, section 7.4 http://cyber.law.harvard.edu/media/files/copyrightandeducation.html

Fresh Start

2008-08-20T19:26:00.000-07:00

A recap on last year. I came to the Otago Polytech to carry out a flexible delivery visual resources project. There were two stages to the project. The first involved sorting the analog collections of slides into a centralised system by manually going through each of them ~80,000 in order to make them accessible to staff and prepare them for digitisation. The second was to set up a digital image repository and sort out the technical and copyright issues around that. Our project is outlined at the National Digital Forum website under the register of digital initiatives.

In the pilot project I began by looking at the issues involved with obtaining, using and storing digital images for use in Art Theory teaching. At the time I began my research the Amendment to the Copyright Act was in Select Committee and we were still in a copyright limbo land regarding digital technologies and copyright. I was also looking at the contractual environment we were operating in. One year later and we have a new amendment to the Act and a new clause in the CLL contract and things have changed because of both these factors.

E-licence

2007-05-09T15:02:00.000-07:00

The E-licence makes it very clear that the CLL licence covers only “published copyright material in hard copy format”. Thus content downloaded from the internet falls outside of the scope of the CLL licence. (CLL has a full list of exclusions in Schedule 3.)

CLL e-licence does now cover the electronic storage of copied materials and also allows for distribution via password protected intranet, email and CD/DVD which was one of the anomalies in the former agreement with information being increasingly made available in electronic forms.

For the purposes of many digital projects, the move to favour the use of data-projectors and out-date slide carousels and overhead projectors has inevitably meant that traditional teaching resources have had to be digitised or created in a new format for the new means of delivery. In the first instance the move to new technology moved course materials and delivery outside of the original copyright agreement which since been addressed. However for materials sourced outside of the CLL agreement such as from the internet the copier needs still to be aware of individual site agreements with regard copyright.

Roll on the new Digital Copyright Amendments Bill which will clarify allowed educational uses but watch out for the CLL equivalents in the web world who will seek to define and fill a new void.

2007-03-22T17:48:00.001-07:00

CLL have replied to one of my questions that provisions for electronic copying are spelled out in the new E-Licence. Can anyone site/sight/cite this to me?

2007-03-22T17:48:00.000-07:00

Can citation requirements be fulfilled by use of existing metadata attached to an uploaded image file? When I first started looking at this I got quite excited by the JPEG2000 file type only to learn that it is a wee ways off yet. Currently it is not widely support by most applications.

Specifically JPEG2000 file types have extra features which permit the interchange and delivery of image files with metadata between databases and remove the need for time consuming manual data entry at each stage of an image interchange journey. (see protocols parts 8 and 9)

The current version of JPEG commonly in use has some of these features. See the properties summary tab when you right click on an image. Further watermarking is possible using some applications as is making the file read-only.

Code and preventative measures currently exist to disallow certain kinds of access to digital images on the web such as subscriber pages, read-only disabling etc, so it may seem reasonable for the onus be on those copyright holders, who wish to withhold, to take the next step? However if we read the terms and conditions of use on sites they may state that “use” of the site implies that you have read all the terms, copyright and privacy conditions and agreed to them before you used the site.

It has also been pointed out to us that copyright collectives and licence companies (other than CLL) are poised to enter the market upon completion of the new legislation. For a taste of the future see vizmedia.com

2007-03-22T17:30:00.000-07:00

Fair-dealing under the proposed amendments allows for copying “criticism, review, research and private study” however it does not authorise the creation of more than one “copy.( Points 38 and 40)

With regard to caching websites we noted, in the Executive Summary, it is possible for educational purposes and would therefore allow for copying and communicating via a secure service allaying the problem of outages and ephemeral web-pages and sites NB these are subject to adequate attribution and source identification. When we look more closely at the educational exceptions it places a proviso “for a limited period of time (linked to the duration of a period of time for which they are relevant to the teaching of the related course).”

I am wondering if we wish to save only an image and not the whole page, which is how the terminology is currently understood, if the definition of the word “cache” will need a little more investigation and clarification?

Using an image is a visual citation and as such has to follow the same rules we follow for text sourced information. The same goes for web-images. We need to attribute the source and any contingent copyright statement of the image.

If the source information is part of the image file metadata (permanently attached) would the caption reference need to be any more comprehensive than artist, title, year? A hyperlink of the URL is only a click away using the JPEG metadata summary.

Summary and overview

We have had to look at the proposed digital technologies amendments to the 1994 Act because the current CLL licence does not allow for some practices. If the educational exemptions go through in their current wording there is a possibility of sourcing material from the web and caching them to circumvent ephemeral web activities and outages.

2007-03-22T16:00:00.000-07:00

The 1994 Copyright Act has 269 articles and I haven’t read all of them. I concentrated on the education exceptions, familiar to most of you, which give us permission to copy, limited to one copy in the course of preparation and delivery of teaching materials.

http://ww1994 Copyright Act III: Acts Permitted in relation to Copyright Works Education, section 44 Copying for educational purposes of literary, dramatic, musical, or artistic works or typographical arrangements

In summary:
Article 44 (5) relates specifically to copyright of artistic works and re-iterates this .” Subsection 3 (b) says copyright is not infringed if copying is for educational purposes provided you follow the quantities issues.
Article 45 deals with film and sound recordings used in the course of educational instruction. Use is permitted if the lesson is on “how to make” these.
Article 48, dealing with recording of broadcasts, allows for educational exemption.
I note that this is to include webcasts – see the CLL submission (Section B9 (ii)) to the Act review.
Further to this the 1994 Act then points us to follow the provisions specifically available to us by our Copyright Licence, that is CLL ( in Article 48 (2).

This now brings us to the bit that doesn’t exist yet! The digital technologies cabinet paper recognises that digital copying has different consequences to printed material and that it is easily possible for a number of people to access the legitimate ONE copy simultaneously thus creating multiple ether-copies and it is further possible for these to be on-communicated. It suggests some restrictions for libraries, that remote-access users have read-only access capabilities (Point 44b).

The cabinet paper also attempts to remedy the current anomalies with regard to means of copying by use of a broad term, “technology neutral”, throughout. Hooray.

The Executive Summary, of the cabinet paper is an exciting read. It allows for the familiar exceptions of “fair dealing” and a new permission “allowing educational institutions to cache websites for teaching purposes; and to communicate material digitally where this is consequential to permitted copying allowed under the Act”!

This then allows for the creation and digital delivery via power-points, Blackboard and distance teaching PDFs. But under CLL we could still have a problem if material sourced from the internet was cached for longer than 6 months. (see CLL submission under caching). This is better than nothing but could affect those wanting to have resources in a database. ?

2007-03-22T14:34:00.001-07:00

The questions I am looking for answers to are what can and can't be copied under a CLL licence? The answer to that seems clear but how does this relate to a secure intranet like Blackboard? And further can or how can we use material sourced from the internet?

My first stop is the "Copyright on Campus" pamphlet available from the library which says licence coverage includes electronic copies which can be distributed by means of "a password protected intranet; email; or a CD/DVD". Items not covered are any materials downloaded from the Internet. See also CLL Copyright workshop ppt. http://www.copyright.co.nz/files/common/Copyright_Workshop_PPT.ppt#283,8,What can be copied under Licence. This seems very conclusive except that if one looks further at the CLL web site and other documents there appear to be some anomalies with regard to digitised materials.

I am seeking to ask CLL about this at the moment as their web page seems to relate only to reprographic copying, “Printed copyright material can only be scanned and electronically stored for the purposes of making photocopies under current licensing schemes. Such material can only be accessed by authorised persons to produce photocopies for authorised purposes and may not be transmitted or accessed on any form of electronic network.”

http://www.copyright.co.nz/index.php?view=awards&sideload=2

CLL deals mainly with hard copy printed texts and documents however I noted in their submission to the Copyright Act review that these rights have been extended to the digital environment. See under Section G: Permitted Acts and Exceptions (iii) Educational institutions, libraries and archives second to last paragraph. http://www.copyright.co.nz/files/copyright_info/law/CLL_act_submission.pdf
I am assuming that this is the platform upon which a program like Blackboard is able to run. *

Re: use of material sourced from the web.
The CLL licence does not cover the copying of images from the web or for these to be held in an electronic format, even for access by staff. In CLL’s submission to the Act review they ask for this clause to be remain, G(ii) under Fair dealing. They ask for the Act to “make it clear that an individual can take only one copy of the material being copied (be electronic or reprographic means) and that it cannot be copied for permanent electronic storage.” (see problems of ephemeral sites and pages later).

http://www.copyright.co.nz/files/copyright_info/law/CLL_act_submission.pdf
They argue that electronic transmission is not “deemed fair dealing for research” and ask for restrictions contained in UK Copyright Act 1988 be included.

Which means we only have access to “personal copies” under the provision of “fair dealing” (provided we respect the copyright policy of the web page which usually involves proper attribution and source) see vizmedia.com for an example
http://www.viz.com/termsofuse/ Copyrights: “Without the prior written consent of the owner . . . use of the materials on any other web site or networked computer environment, or use of the materials for any purpose other than personal, non-commercial use is a violation of the copyrights”. Usually use of a site implies you have read and AGREED to the terms and conditions.

Summary: My understanding from reading and advice received is that lecturers may look and download for themselves but can only link not download for students including in Blackboard. With permission from the copyright holder images could be included for use in Blackboard but we still have the problem of ephemeral web bits.

CLL is operating under the 1994 Copyright Act which is currently under review.
The next step is to look at permitted exemptions available under the copyright act to do with fair-dealing and educational exemptions and compare these to the permitted acts under CLL . We also need to look forward to the proposed changes in the cabinet paper re: digital copyright to see if there will be a way forwards when teaching and sourcing of information is increasingly done in an internet-/type environment.

2007-03-22T14:34:00.000-07:00

This is my first blog so please bear with me.

Background

I have an arts and applied sciences background but not an ounce of legal-ease. My own background in copyright understanding comes from workshops I have attended as a Registrar/Collections Manager for museums and art galleries.

I have been looking at copyright specifically as it relates to digitised material for the last few days. To make sense of it all I compiled a rather unwieldy document consisting mostly of footnoted references with a thin discussion of what I thought it might mean along the tops of the pages. I have sought out answers to specific questions as they arose and am left with others I am hoping this forum may have some replies to. Back to the beginning then . . .

hello

2007-03-19T16:39:00.000-07:00

My name is Pam McKinlay. I am currently looking at digital copyright as it applies to digital images specifically in an art school.