|Papers & Presentations by Christine L. Sundt|
"THE GREEN PAPER" -- INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: A PRELIMINARY DRAFT OF THE REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS, July 1994
Copyright and images of art and architecture are an important part of my professional experience as a visual resources curator in a large state university's library. I am not a lawyer but, based on two decades' practice as an image librarian, I have had to deal with copyright situations, best described as "those residing in the grey areas of the law, including fair use," that have forced me to wonder why the use of copyrighted images is not better understood or understandable. I feel this is a legitimate question given the nature of the Task Force's charge towards the creation of a National Information Infrastructure (NII). To summarize what follows, this is an argument in favor of the retention of fair use in an electronic environment; this is an argument against compulsory licensing of cultural property that is reasonably used in the course of instruction and discourse within an educational structure, though not necessarily limited to a classroom.
The views expressed in this paper are my own. I do not speak for the University of Oregon nor for any other organization with which may name may be associated.
In reading the Green Paper, "Intellectual Property and the National Information Infrastructure: A Preliminary Draft of The Report of the Working Group on Intellectual Property Rights," I am struck by how insignificant the issue of digital pictorial images appears to be in the report and its recommendations, even though this is one of the more interesting and, in my eyes, the most troublesome aspects related to channeling information through the proposed NII. Pictures are the heart of multimedia and definitely in the minds of today's children, our students. The intense rush of interest in pictures and how they can be incorporated into almost anything is as common "in the streets" as it is in today's electronic college classroom. The Working Group must be aware of this need.
To illustrate my point I offer this scenario:
A faculty member at a state institution of higher education wants to use images of art and architecture in her course, "Art in the Context of 20th-Century Culture," on the university's educational network. The network reaches branch campuses all over the state and covers the whole county of the host institution; this open-ended network is accessible by public and private schools, libraries, learning centers, and various government agencies within this county.
The faculty member has offered this course for the past five years in a traditional classroom, and on average she shows 75 slides per class session, meeting three times a week (75 x 3 x 15 weeks = 3,375 slides per semester). The images are drawn from a "slide library" amassed over the years in the university's art library. The slides were obtained from numerous sources: from commercial slide vendors, from her own photographic efforts, as gifts from former faculty members and students, and as reproductions of plates and figures in books and journals. In purchasing the slides from vendors, the vendors stipulated that the slides could only be used for teaching and should not be duplicated nor transferred into another format without their permission. Slides received as gifts do not include a transfer of copyright and some could date back to the 1950s; many of the donors are untraceable, some are deceased. Slides from book and journal illustrations were produced under fair use guidelines as interpreted by local counsel.
Before the course can be aired, she is instructed that she must obtain copyright clearance for all images to be used in her lectures and that if the copyright holder of certain images cannot be located, she cannot use those images. She is told that fair use is no longer defendable because transmission has become the vehicle for the information and instruction.
ANALYSIS OF THE PROBLEM --
1. Copyrighted images will be used on an open-ended network
2. Distribution of the transmission will be to all types of sites, not just classrooms, (public display and performance issues)
3. A massive number of images (and permissions) are needed to present the course (under current transmission guidelines)
4. The limitations attached to images acquired for use in the traditional classroom prevents conversion of these images into formats appropriate for the new electronic classroom (while the format changes, the content does not)
5. Copyright holders of images of art or architecture are not easily identifiable; some will never be found
6. The absence of copyright transfers relating to gifts received in the past means that the university cannot use these materials without potential liability
7. The difference between what is a fair use in the text world and what is not under transmission rules is unclear for pictures
8. What is already in the public domain and available for unrestricted use is not readily apparent
9. Rights holders tightly controlling the use of images of contemporary art and architecture could be interfering with a user's free-speech right
10. The current litigious climate promotes submission to unnecessary licensing and contract agreements as a shelter, even though legitimate fair-use exemptions probably apply in some instances.
WHAT IS IT AND WHO OWNS THE COPYRIGHT?
An image of art -- a slide of Leonardo da Vinci's Mona Lisa, for example -- is an annoying bundle of problems when trying to sort out *what it is* and *who owns it*. The layers of ownership and claims of control over the use of images could make one weary:
The work is in a museum (in this example, the Louvre, in Paris) open to the public; although the artwork is in the public domain (Leonardo da Vinci died in the 16th century), the museum claims property rights; the museum sells photographic reproductions of the work, but also allows anyone willing to pay a fee the right to make a photographic reproduction of the work; a scholar incorporates the image into her work (a scholarly book for which she receives no compensation) and uses her own photograph to illustrate the painting; the scholar's work is published by a commercial publishing house; the scholar in negotiating the publication, signs away her copyright to the publication; finally, the publisher sells its interest to an electronic publisher who mounts the work on the Internet, making it available to users for a fee. Enter the college professor who wants to use the image in the scholars' work to illustrate his course on Renaissance portraiture. Who holds the rights to our Mona Lisa? Who gets the royalty fee for allowing the use of Mona Lisa's image? In purchasing the copyright to the publication, does the publisher also own the copyright to the images if the contract does not specify images? Where does the museum fit into this equation?
AUDIOVISUAL VS PICTORIAL, GRAPHIC, AND SCULPTURAL WORK
*What it is* refers to which of the definitions in Section 101 fits this item -- the slide reproduction of Mona Lisa. Is it an "audiovisual work" because it is "intended to be shown by use of machines or devises such as projectors..."? Is it "pictorial, graphic, and sculptural work" because it is a two-dimensional work of "fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, technical drawings, diagrams, and models"? One can argue that the minimal level of creativity needed to reproduce an artwork may eliminate it from the "pictorial, graphic..." category, but based on current discussions of originality, I think this argument could be easily overturned. Thus, depending on factors difficult to articulate, the slide could be either an audiovisual work or it could be an original artwork in its own right, even though the image depicted would be identical. Incidentally, since 1978, not one of the photographers who created a new photographic image of the Mona Lisa appears to have registered his or her slide or photograph with the Library of Congress Copyright Office.
Artistic photographs of architecture are more commonplace. One could argue that photographic images of architecture and other three-dimensional objects can only be described as "pictorial, graphic..." and not "audiovisual" because it is seldom the case that two images are exactly alike.
A DERIVATIVE OF WHAT?
Another matter of confusion is whether slides are actually derivative works, since they, in representing art and architecture, are usually a different medium from what they illustrate. But when a slide is made from a reproduction in a book (under fair use), is this a derivative from the original artform or a derivative of someone else's illustration of the artwork -- in another reproductive medium. *What it is* cannot be reasoned without some difficulty.
IF NOT THE ARTIST, THE MUSEUM AS RIGHTS HOLDER? WHOSE IMAGE IS IT?
Claiming property rights over the original object, could the museum legally controls all reproductions proceeding from the work? Or do the individual photographers who have paid their fee and who have exercised their creative talents in pointing and shooting a camera own the copyright to their image? Once on a network, whose image is it? Using the image of the Mona Lisa on a network could be in violation of the museum's property rights, or could it? Do the museum's property rights supersede any existing copyright-protected images, and if so, to what extent? Can anyone claim copyright to a image of art that is ultimately in the public domain, that when displayed as a digital image looks just like the image produced by all the other photographers who stood in front of the painting with a camera?
WHAT IS THE COPYRIGHTED MATTER IN AN ART REPRODUCTION?
One could then ask if the copyright is related to the image or to the text that describes the image (since text by necessity accompanies it). If based on the textual description, the image of Mona Lisa would appear *not* to enjoy copyright protection because the image is the part of each photographer's work that is identical and furthermore based on a work in the public domain.
DETERMINING A RIGHTFUL OWNER, OR A CASE FOR THE PUBLIC DOMAIN
Over the years, the image of the Mona Lisa has appeared in countless books dealing with art. In early publications, she appeared as an engraving; later a black-and-white photogravure; today her image is produced by computer graphics technology. Images that appear before 1976 in books, posters, postcards, and the like that did not carry a copyright notice could have fallen into the public domain, but because the system for determining the copyright status of images is not as clear as it is for text matter, one could not be sure. I suspect that there are many such images in the public domain, but the literature is silent about how to discover them. If we could discover what is really in the public domain, the whole issue of what is legally feasible on the Internet would be less a matter for legal dispute and more towards the purpose of copyright in the first place -- "to Promote the Progress of Science and the useful Arts."
Returning to the scenario, the matter is far more complicated when contemporary artistic work is in question. I will use architecture in this example. Because architecture is protected under copyright legislation, images (derivative works) of contemporary architecture obtained (photographed) without the permission of the architect (or builder, or contractor, or multi-talented home-improver) are infringements of the rights holder's right. To seek permission for every intentional as well as accidental photographic capture of a building is a mind-numbing thought. Imagine also, how complicated this gets when we consider a building that has been enlarged or restored over the years, and each addition or change is the work of a different architect. Imagine our own National Gallery.
Lacking a fair use defense for transmitted images, the process for securing permission for each of the 3,375 images needed for our professor's course would be chaotic, counter-productive, and a waste of valuable time, energy, and money. What must be understood is that teaching students about art and culture is an image-intensive process. The continuation of this type of teaching must be facilitated with guidelines that offer a way around potential legal disputes over whose royalties are yet unpaid.
Privileges afforded educational institutions under copyright and fair use decisions appear to be already losing ground at a frightening rate. As more teachers subscribe to the notion that every use of copyrighted materials is an infringement and nothing remains under the fair-use blanket, the peoples' rights are being replaced with often unnecessary contract and licensing arrangements. As others whose comments you have already received have very ably pointed out, too much of the balance between rights owners and information users has been tipping towards the former. Our everyday-information users, perhaps unaware that these deliberations are underway, as Jessica Litman argues, are being pushed aside as corporate muscle (and money) wield power and influence for their causes. Information -- text, images, sounds -- must remain accessible to all, and if the new technologies make it easier for this to happen, let us be grateful. This has been the argument of technology gurus for the past three decades. Everyperson's dream of information at one's fingertips may finally become a reality if we can control the impulse to assign a dollar value to every bit and byte of data destined for the NII.
I have been motivated to respond to the Green Paper because copyright-related questions around slides, photographs, reproductions, analog and digital picture [image] files are both numerous and complex and because so few answers can be found in legislative case history. Without case law decisions for guidance, judgment calls are often based on analogy with text formats, motion pictures, music, or artforms. None of these are entirely valid, leaving the question often only partially resolved (the question mark is moved between parens). I am hopeful that the issues raised in our solicited comments will be convincing enough for a second CONTU to be convened. Having read a number of others' comments in the papers posted to various gopher sites on the Internet, I know that there are many capable individuals among these who would be able to craft new guidelines that will ensure the success of both a national and global information infrastructure that justly benefits all.
I append my comments with a list of "differences" that require clarification as my response to a question posed to the thirty invited participants in the Getty Art History Information Program (AHIP) Initiative on Electronic Imaging and Information Standards, March 3-4, 1994, Santa Monica, California. The question asked by the Getty AHIP was: "What do you perceive as a major barrier to universal and comprehensive access to images and information in art?"
I hope this list illustrates the problems that those of us who work with images have already encountered and perceive to be impediments to continued practice in light of current and proposed changes to the Copyright Law.
- The difference between fair use of electronic still images and copyright infringement.
- The differences between copyright, licensing, and contract requirements.
- The difference between the requirements stipulated in a license contract and what would be a reasonable use of the image within an educational institution.
- The difference between the rights of the publisher and the rights of the copyright holder concerning an image reproduced within the publication.
- The difference between a photographer's right to reproduce an image of an object in the public domain and a museum's right to control distribution or reproduction of the image of the object under its care.
- The difference between the image and its intellectual content (the caption), especially for images representing an artwork or structure in the public domain.
- The difference between an original electronic image file and a manipulated image file.
- The difference between how existing guidelines can be applied to media for which the guidelines were written (videotapes, motion pictures) and all other "new" media (especially electronic images).
- The difference between the interpretation of the copyright law for satellite transmission and the mounting of images on an educational network.
- The difference between electronic images on a single workstation and those mounted on a network (or the wide-area Internet).
- The differences between the legal positions of countries that are signatories to the Berne Convention and those that are not.
Thank you for this opportunity to comment on the Green Paper. The document is an excellent beginning for further dialogue. I congratulate this effort and achievement.
Visual Resources Curator
Architecture & Allied Arts Library
University of Oregon
Eugene, OR 97403
October 20, 1994
Last revision: October 23, 2002 by CLS
Created by Christine L. Sundt, University of Oregon Libraries
University of Oregon Libraries | Architecture & Allied Arts Library | Visual Resources Collection | Eugene, OR 97403-5249 | 541/346-2209 v. -2205 f.