Artist Rights in the digital era: Roundtable

Artist Rights in the digital era: Roundtable, March 2010

Background

In October 2009 The Australia Council co-hosted “Revealing the Arts; creative conversations and solutions for the digital era” with industry partner ABCTV. Artist Rights (both commercial and non-commercial) were a recurring theme throughout the day and a half of discussions from both a monetisation and free re-use perspective.
 

There are vastly oppositional contemporary paradigms:
“We must protect, and monetise, our intellectual property”
“If it isn’t on the web, it doesn’t exist”
Two quotations from Revealing the Arts, October 2009

Roundtable Discussion

One of the outcomes from Revealing the Arts was for the Australia Council to discuss artist’s rights in the digital era with key Australian rights management groups. We don’t expect to solve the world’s copyright confusion, but we are committed to exploring how copyright relates to artists, arts organisations and institutions. This roundtable is the first step in centralising these discussions.

With this in mind, Facilitator Malcolm Long invited each of the attendees to outline the issues specific to their sector and community. I won’t list them all here, but for the hardy amongst you I have posted the full list below where you are welcome to add your own comments. Aggregated, we unsurprisingly saw a high level of opportunity and an even larger list of potential risks. And at the heart of it all sits the ‘access versus remuneration’ conundrum, so prevalent in Revealing the Arts. So how do we provide a maximum access to content across digital platforms, while protecting an artist’s potential to make a sustainable income?

The recent Participation in the Arts survey reports that 95% of Australian artists use the internet. While most currently use it for research, networking and promotion, most anticipate some form of revenue from their internet activities in the future. And yet until we have an eco system where commercial content delivery works as well for independents as it does for distributors and becomes “sexier than piracy”, what hope is there for us? How can we, as a society, harness the best of the digital era’s creative potential without turning “our children into criminals”?

Roundtable Actions

This overview of key issues & broader discussion enabled us to later focus down into five key action areas: Education, Boundaries, Measures Models & Mechanisms, Monitoring & Enforcement and Archiving.

Education

It’s not just artists who need help understanding what rights exist and how to maximise them, this is a confusing landscape for us all. Before we even question whether contemporary law is suited to the digital era, or what changes might be appropriate, we need to know the current lay of the land. DEWHA are developing a sector resource for artists as a starting point to aggregate pre-existing advisory materials.

The Australia Council already funds a number of agencies who each provide advice to a broad creative constituency, not least Arts Law, Copyright Council, NAVA and others who are involved in this roundtable. It was therefore agreed for the group to work alongside DEWHA to assist in the aggregation of existing resources and prevent reinvention of the wheel. Further educational actions will be explored in the next roundtable.

Boundaries

Given the multitude of tools for making and sharing work, is there really such a difference between a “Hobbyist” and a “Professional” these days? And if you participate in an art work, even just by adding a comment to a forum or leaving your own drawing or ‘User Generated Content’ in an amalgam, should you retain rights to that contribution? How would such a relationship manifest? Where do the boundaries lie between creative roles, especially in an increasingly collaborative digital space?

This issue seems to lie entirely at the heart of the question, “Who pays for culture?” Many artists have taken a tenured position, self funding their artistic practice and without attempting, or succeeding, in selling it. Even more opt for the congested subsidy model, ironically paying taxes from one employment pocket towards – maybe – receiving funding into the other. The few who gain an income from selling the products of their creative labour rarely manage to achieve that with any real consistency. And new models of ePhilanthropy and crowdsourced financing might have been made all the more appealing by the Obama campaign and current film communities, but are they sustainable?

As a group we agreed that the Artist / Hobbyist share the same rights, as would the distributor of content released under either Commercial or Free Culture methodologies. The Creator / Participant, however, do not share the same rights under current law, regardless of how all-powerful a participant is often lead to feel. The obfuscation of definition alone made this too complex a discussion to arrive at one concise action. Instead the research team under Nick Herd at the Australia Council and Brian Fitzgerald’s team at QUT agreed to co-produce a literature review around this area. Whatever layers can be untangled from these blurry definitions will be presented at the next roundtable, where further actions will be agreed.

Measures, Models & Mechanisms

This somewhat verbose title attempts to encapsulate the new models which have so threatened the current legal eco system. Within this section we arrived at two experimental courses of action aimed at exploring the creation of new enterprise, new partnerships and, eventually, new law.

Dean Ormston updated the group on APRA’s discussions around new policy opportunities arising from partnerships between government, ISPs and the sector. It is hoped that from these discussions a new model could arise to mediate already known artists, users and distributors through a collective provision. This idea of a one-off service where ISP users download a range of content from different known artists (with the rights owners sharing the revenue) is not new in the Music industry. The question is how would an opt-in license relate to the commercial distribution of other artistic content?

An aggregated shared licensing model might work for established artists and those with significant marketing budgets behind them, but what of the independent, emerging or niche creators and their content? Through her earlier Industry Partnership conversations, Fee Plumley felt an experimental model could be exploited. For example, by offering a cap-free download of Australia Council supported art work, we could analyse a comparison of commercial versus free use and potentially readjust the anticipated value chain.

Both agreed to follow up discussions with potential partners and return with some further information on these or other potential models.

Monitoring & Enforcement

Key issues lie around coping with the quantity of data available, analysing the value in that data and enforcing appropriate rights protection. It was felt that an action on this area was something which would come more naturally after outcomes from the previous actions had been presented.

Archiving

Many discussions are taking place around the country in an attempt to solve the archiving problem. From the public/private concerns, methods of tracking the use of collections and the lack of uniformity with preservation formats, this was deemed too large a focus for this roundtable. The digital program had already committed to apply a focus of attention to this area, following up on Fee Plumley’s engagement over the last year with NLA, NFSA, ANDS, CAN, Opening Access to Australia’s Archives, and HOCI (amongst other conversations). The digital program will aggregate those discussions and decide what the best next steps might be. This group will be informed of their progress and connected at a more appropriate point in proceedings for both groups.

Immediate Next Steps

• Boundaries - Literature Review (Nick Herd & Brian Fitzgerald)
• Measures, Models & Mechanisms - ISP/Government paper distribution (Dean Ormston)
• Measures, Models & Mechanisms - Explore Australia Council “cap free” Pilot Project (Fee Plumley)
• Archives – Aggregate national discussions and define further course of action (Fee Plumley)
• Reconvene for 2nd Roundtable to report back & agree further actions July 2010

Attendees

Malcolm Long - FACILITATOR
Robyn Ayres (Arts Law Centre)
Libby Baulch (Copyright Agency Limited)
Brian Fitzgerald (QUT Faculty of Law)
Phil King (ABC)
Simon Lake (Screenrights)
Dick Letts (Music Council of Australia)
Angelo Loukakis (Australian Society of Authors)
Dean Ormston (APRA-AMCOS)
Mary Anne Reid (Australian Copyright Council)
Simon Whipp (Media Entertainment and Arts Alliance)
Jacqueline Woodman (Australian Writers Guild)
Johanna Parker, Creative Industries and Online Resources Section (DEWHA)
Ms Shilpa Pullela, Arts Support Section (DEWHA)
Vanessa Dal Molin, Arts Support Section (DEWHA)
Tony Grybowski, Executive Director, Arts Organisations (Australia Council for the Arts)
Nick Herd, Director, Research & Strategic Analysis (Australia Council for the Arts)
Fee Plumley, Digital Program Officer (Australia Council for the Arts)
Brendan Coutts, Business Development Manager (Australia Council for the Arts)
Laura McLeod, Client Manager (Australia Council for the Arts)

Apologies:

Tamara Winikoff (National Association for the Visual Arts)
Lynne Shortt, Manager, Legal & Compliance (Australia Council for the Arts)
Bethwyn Serow (SPAA)
Jose Borghino (APA)

Issues

Opportunity

• Low cost & widespread distribution
• Can increase revenue (doesn’t always) – ref: iTunes
• Exposure - overseas
• Collaborations
• New license options – ref: Creative Commons
• More platforms – ref: mobile, YouTube
• Sample vs commodity
• Releasing archives
• Logging / tracking of use
• New creation tools
• New model of control and remuneration
• Education of artists & users & business & institution
• Consumer-lead sector – could lead to new revenues
• Enabling access while generating payment
• Statutory licensing
• Huge GDP potential
• Copyright is working in some areas
• Value of user data
• Advocacy
• Research on free and paid arts models as well as other non arts sectors

Risk

• Uncertain rules around collaboration
• Uncertainty of where/what/how licenses used between maker / user / business / institution
• More platforms/opportunities
• Archive clearances / costs
• Fluctuating standards / platforms & future-proofing
• Time / cost to re-purpose material (30min show to 3min mobisode)
• Inconsistencies across use – ref: University publishing of literary works
• Storage (of content, software, platform, hardware, expertise)
• Levels of payment
• Cross sector frameworks / relationships
• Polarised debate
• “What is commercial”
• Work recorded as private documentation becoming public
• Differences of opinion between parties within production
• Attitudinal differences in consumer between value of hard/soft copy of same content
• Too early to tell if new models work or not, or who actually benefits
• Quality control
• Terminology across sectors & purposes: user, collaborator, partner, consumer, audience
• Ego – ‘mine is a different circumstance’
• Myopia – from the broad to the single perspective
• Complex; no ‘one type’ of work, or ‘one scenario’
• Public perception – piracy affects individual artists as well as labels/agents
• Responsibility & workload of processing audience data
• Global variants
• Too much focus on piracy polarises debate

This is not intended to be a complete list, merely the most pressing which arose in discussion. Please add your comments and suggestions below.