Wired Law  
WiredLaw - Law Offices of Michael Leventhal
Legal Links
Contact Us
Email Us

Notes For Presentation to the
Governor's Conference On The Arts

by Michael Leventhal

Good afternoon and thanks for coming. I speak regularly on new media issues and I always enjoy it, in part because people ask a lot of questions and I get to say "I don't know" a lot. More and more of these questions now have answers, but even more questions are being raised. This being an even more theoretical panel, I thought I might give up altogether on the answers and just pose a few questions and start speculating. First of all, reports of the demise of copyright law in the information age are greatly exaggerated. The basic principles which underlie the concept of copyright in the U.S. can still guide us through the bulk of issues raised about artistic creations for the beginning of the 3d millenium C.E. However, there are new processes, both in and out of the artist's control, which do challenge our traditional frameworks. The following are some questions (with occasional answers) we might try to address during Q&A; relating to these issues:

1. What are the major issues confronting the artistic community regarding ownership of its creations in the coming century?
A. Compensation, attribution, mutilation, and control over distribution.
1) Compensation is obvious
2) Attribution is the largely European concept embodied in moral rights the right to be connected with the work as its creator, whether the owner or not;
3) Mutilation - the right to retain control over what others may do to your work;
4) Control over distribution- Does the artist (or copyright holder) have the right to determine who gets a copy of his or her work.
2. How is each of these goals achieved in a digital world?
A. Watermarking/tracking devices- what do they do? Today (and even better in the future) there exists software which can be embedded into a digital creation (or a digital representation of an analog creation) which can:
1) Invisibly mark the work such that one could always tell the source. This empowers enforcement of infringements and retention of the artist's ability to stay connected to the work in the public's mind. (Attribution)
2) Notify the copyright holder of any uses of the work on any computer or system connected to the net, as its use can trigger messages sent back to the copyright holder. The "or system connected to the net" language is a nod to the new breed of information appliances being introduced which are not multi-function computers, but rather, appliances designed for specific functions which benefit from the intelligence of and communication with a larger network. Although I have not yet seen much art come out of the information appliance concept, I assume that it is either being done, or will be shortly.
3) The notification technology can trigger a payment system, automatically sending money from the user to the copyright holder upon usage. However, this creates the question of who is the paying party in a situation where the creation is a web site or internet presence of some type which incorporates others works. Should the creator pay or the observer/audience/ (in the parlance of the day) consumer?
4) Copy protection - prevent more than one digital copy from being made before locking the user out of the copy function. But, how does the software know when its copyright expires or it otherwise passes into the public domain? Maybe the net tells it. These issues of copyright term and attribution raise another issue - that of globalization. We have a global community with regional laws. The U.S. law on moral rights is weak. The Europeans have much stronger traditions in moral rights. Copyright terms around the world are different, although there is more conformity than there used to be. The European database directive has created a new protected class of creations, raising fears about the ownership of information and reminding us that copyright law is not static, but, rather, alive, and can be responsive to new types of creations and experiences.
3. Another question is, how does an artist know when he or she is done with a work? The iterative process has become part of the culture of both business and artistic creation. Works are released, modified in public, revised, re-released. Those of you familiar with the band Garbage probably smiled at the name of their most recent release- 2.0. One wonders whether there will be a 2.1 and 2.2 before they go on to 3.0... Great bands like U2 release re-mixes, re-mix albums, different versions of songs. They continually rework material in ways that traditional rock 'n roll artists never used to. It's getting so that collectors like me can't even own a complete collection of anybody's work any more without spending their whole life as a researcher! Will there be some art forms with no final version? Will it be OK of someone else adds to the artist's most recent revision? What rights issues do these processes implicate?
4. On the business side, when nothing is truly out-of-print any more, when do writer's rights, which revert by contract when the book is out of print, actually revert? The answer is probably that new criteria for reversion will have to be developed. I hope we can discuss these issues after we are all finished with our thoughts.

Yesterday, Professor Hewison state that Intellectual copyright constitutes the gold and silver of the New World Order. We must now figure out what kind of piggy banks we're going to put them in.

Thank you

Copyright 1999

Home | Profile | Articles | Links | Contact Us | Email

© Copyright 2003 Michael Leventhal. All Rights Reserved.