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Copyright Law and the Visual Artist

Copyright laws support artists’ creativity, protect their moral rights, and provide a source of income. What do artists want from copyright reform?

Visual artists’ professional associations and copyright collectives call on artists to proceed with caution concerning reforms to the copyright law that is designed to benefit them.

In early June, an open letter was circulated to the artistic community in Canada, initiated by two Canadian artists, Gordon Duggan and Sarah Joyce. The letter stopped short of asking the federal Ministers of Canadian Heritage and Industry for any specific reform to the Copyright Act, but asked that the artistic community be consulted on any proposed change.

The letter, however, was alarmist in tone. It pointed out that visual artists in Canada who practice what is called appropriation may be at risk of prosecution, and suggested that the Copyright Act should be changed to protect these artists. Appropriation, a term understood in the art community but not much outside it, is the use of existing artworks in the making of art that comments – often by way of parody or criticism – on some aspect of art or culture.

The visual artists’ professional associations, CARFAC and RAAV, and the copyright collectives associated with them, CARCC and SODART, have made it their mission to encourage and support reforms to the Copyright Act that benefit artists by opening up areas of copyright that might enhance their incomes. They also encourage the strengthening of Moral Rights, that is, the protection of the integrity of artists’ works, their right to be credited for their creations, and their right to protect their works from association with unapproved causes – all rights that, if infringed, may damage creators’ reputations. Appropriation without permission, or credit, or by the taking of parts of works, tramples on Moral Rights. If Moral Rights were to be obliterated from the Copyright Act, or watered down to allow exceptions such as the ‘creative access’ demanded by Duggan and Joyce, artists would be open to many undesirable abuses. Furthermore, if artists are not paid for what they create, why would anyone make art?

The Copyright Act also aims to give reasonable access to users of copyrighted works. Workable balance is sought between the rights of creators and those of users. The open letter is nebulous about what artists practising appropriation might want in the way of reform to the Copyright Act. Artists, and anyone else who infringes on a creator’s copyright, are indeed open to prosecution if they use without permission, although there is little among Canadian legal cases that even touches the subject of artists’ appropriations. The law, if used properly, can protect artists who appropriate. An artist, like anyone else, may use the work of others if he or she seeks the permissions that the law requires. Art forms such as the movies do it, witness the huge lists of credits at the end of most films. Visual artists who create using other creators’ materials, skills, or collaboration would do well to seek permissions, to pay the contributors, and to credit them. This gives them protection under the law.

CARFAC and RAAV have taken the position that artists should proceed with extreme caution in seeking exceptions for their own practises from the requirements of copyright law. If artists do not themselves respect the law, how can they expect others to do so?

What would CARFAC and RAAV like to see in the way of reform to the Copyright Act? On the top of the list for visual artists is droit-de-suite, a concept that can be written into copyright law requiring that artists be paid a percentage of the resale of their works. This is a great advantage to artists particularly if their work increases in value, as it allows them to benefit from sales that occur after the initial sale.

Many of the proposals put forth in Bill C-60, the last attempt to reform the Copyright Act, were agreeable to artists. Unfortunately Bill C-60 died on the order table with the last government, but much of it would be worth putting forward again. The reforms that would put Canada in line with the World Intellectual Property Organization agreements are a good thing, as is the proposal to protect the rights of photographers, printmakers, and portraitists in the same way as other artists are protected. CARFAC and RAAV would like to see better protections against internet piracy than were proposed in C-60. They do not want to see exceptions for educational institutions concerning the use of materials on the internet in the classroom, rather they support the idea that these can be licensed in the same manner as photocopied material is licensed. Creators must be paid for educational materials. There is no culture that is free of cost.

In the past, artists and those who represent them have lobbied successfully for reforms, and been thoroughly consulted on reforms that might affect them. The exhibition right, wherein artists may require compensation for public exhibitions where their work is not presented for sale or hire, was added to the Copyright Act in 1988 and was a particular success for visual artists. In fact, reform to the Copyright Act is an ongoing process that is itself written into the law. If visual artists and art professionals are worried that they will not be consulted on new proposals, it does not hurt to reiterate that concern to the recently-elected Ministers of Canadian Heritage and of Industry. The artistic community is a valuable contributor to any discussion of reform to an Act that affects it directly.

Janice Seline, Executive Director, CARCC (Canadian Artists’ Representation Copyright Collective)

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