FALL 2012: V.08 N.02: FOUND – SAMPLED – STOLEN – STRATEGIES OF APPROPRIATION IN NEW MEDIA
Sarah Cook, Ph.D.
Curator and Reader, University of Sunderland, United Kingdom.
In this paper I offer some perspectives on copyright in relation to artistic and curatorial practices that draw on moving-image archives.  These observations are anecdotal as I am not a legal scholar and did not curate or commission the three projects under discussion – Public Domain (SAW Video),  Charade (Simon Pope with the BBC),  and YouTubePlay (Guggenheim Museum).  It is my belief that these works show the need for future art historical inquiry to consider the mechanics of access involved in working with copyright-free material and/or online platforms.
In 2009 SAW Video (an art production agency and video art archive in Ottawa, Canada) commissioned seven artists to make new single-channel videos using audio-visual material that is now free of copyright, found in the collections of the Library and Archives Canada’s (LAC) public archive. The six newly created works by Steve Reinke, Sara Angelucci, Maureen Bradley, Gennaro de Pasquale,  Suzan Vachon, and Véronique Couillard & Ryan Stec, which screened under the collective title Public Domain (2008-2011), range from personal docu-fictions and meditations on memory, to open source software-driven collage.
The project was by no means a quick and dirty job based on freely available material, but rather a laborious (and costly) endeavor on the part of both the artists and their commissioning agency. When the artists began their research at LAC it was soon apparent that a lot of the material that immediately came up in a search for copyright-free material was either documentaries (out of copyright because they were now fifty years old), material that was initially given to LAC along with its rights (such as material de-accessioned from the Library of Congress in the USA and bought wholesale by LAC), or material that LAC had produced (i.e. filmed) itself. Getting access to the material involved navigating the clunky database of records, watching preview copies on poorly labeled VHS tapes in person in Ottawa, then waiting two months or more for transfers of the material produced by a variety of companies contracted to LAC, much of which, to the artists surprise, had artifacts from the transfer process, and no sound. There were transfer costs to be paid, but no fees were charged to the artists for their re-use of the material itself. In theory, the artists could have sourced much of the same material from a number of other organizations or sites more efficiently and more quickly, if they had wanted to pay for it. As SAW Video director Penny McCann and a number of the artists noted at the time, the National Film Board of Canada (NFB) sells its stock, while LAC provides it free (except for the cost of the transfer). It appears that there is no concern for what the different organizations might hold, and no apparent communications between them. “They [the NFB] sell what is the public’s images back to the public, but in better quality of copies and images than our national institution can… If, as an artist, I had the money, I’d go there. It’s faster and the results are more beautiful.” 
For instance, one of the artists requested a television clip from 1961 that was available in the archive of the Canadian Broadcasting Corporation (CBC), but it was too expensive. CBC was charging $20 per second, and required a 30-second minimum. The policy of CBC is that if it is not in the public domain, they have to charge for it (although the footage is 50 years old, and thus out of copyright, that doesn’t make it ‘free’). The same applies for audio, as another of the artists discovered. From her perspective, CBC radio is taxpayer-funded, so researchers should not have to pay to re-use those recordings (the request for educational use of the less-than-two-minute clip cost $600; for audio, the charges are 15 cents per second, with a 30-second minimum). Do these charges exist solely because CBC edits these clips, which means they have mechanical rights? One of the artists requested a piece of footage that was filmed at Universal Studios in the 1940s. The copyright holder, as listed in the LAC database, is Paramount, and while the copyright had expired, the administrators at Paramount refused to write a letter to that effect, a letter that LAC needed to release the footage to the artist.
These logistical challenges to accessing ‘public’ material raise the question of how technically ‘open’ for use archival material is, and if not, why? On the part of the archivists the answer is clear – their responsibility is for the material conditions of the work and its technical/mechanical accessibility, in keeping with the restrictions applied by the donor of the material; all requests for use defer to those constraints primarily.
On the part of the artists it is less clear whether ‘public,’ ‘open,’ and ‘free’ mean the same thing when it comes to accessing copyright-free material. The artists did not have to use the footage granted by the LAC (although sticking to it was the intent of the project in terms of their commission from SAW Video). They could have paid for it from the CBC or NFB (the former a crown corporation –state owned, profit-making, but operating at arm’s length from the government– the latter a departmental agency). They could have downloaded pirated copies off the Internet if they were available. They could have surreptitiously video-recorded the images playing on the television monitor while they were previewing the material in the LAC building with security guards watching over them. They could have restaged and re-filmed the scenes themselves (thus controlling how public or accessible the resulting footage is). In all of those cases, of course, the quality of the work would have been drastically different. Had LAC released copies of material that wasn’t, to their minds, in the public domain (perhaps out of copyright but with donor restrictions, or the reverse, freely available but still within its copyright term), artists also could have used it and refuted any copyright-infringement claims later made by referring to the clause over fair dealing.  In the Canadian Copyright Act, like in the UK, fair dealing does not infringe on copyright, so long as the source of the material is mentioned.
These technical considerations which cut across the question of media in all six commissions aside, a closer reading of the resulting individual artworks invites further conversation around what constitutes authorship in the age of art after new media. Together they speak to the artists’ unique and individual approaches in appropriating readymade footage and in re-translating it for new audiences. All the works use footage that did not originate with the artist, but not all used it exclusively. Some of the works are made more personal, more authored, more ‘copyright-able,’ through their editing into a larger story (as is the case in the work of Maureen Bradley who made a documentary work including a newly made soundtrack and additional personal footage ); some are more mash-up/remix oriented, with the copyright-free footage processed using freely available software and the clips themselves released online (as in the case of Veronique Coulliard & Ryan Stec’s work ).
The majority of them suggest, aesthetically, that different, and personal, histories could well develop from artists having greater access to historical documentation – as is the case, for instance, in Sara Angelucci’s piece about the politics of media representation in female beauty pageants.
But is there anything about the videos that is distinctly Canadian in their method aside from the origins of their recycled content? Probably not. Yet it may also be worth considering how this project might have been different had it been produced in another country (with different copyright law and a different collection of material in its national archive) especially when considering Public Domain alongside other initiatives that have sought to foster re-use of copyright-free material and engaged in online platforms of exchange.
The ideal is a healthy public domain that we can all participate in as producers and consumers. Archives –whether their material is online or not– are necessary parts of the infrastructure that supports a public domain. Wirtén writes of the role of libraries and archives in facilitating the use of the public domain’s “symbolic space,” in the sense that they are both “keepers of the material object (the book)” and transmitters of “content kept within that particular receptacle.”  With digitization, libraries and archives have greater capacity to focus on their responsibility for the latter, without getting too hung up on the problems of the former (old VHS tapes and the cost of transfers aside). Yet copyright acts really only work in favor of commercially viable products (Hockey Night in Canada film clips for instance), limiting the use of those other materials (films of a public school’s annual Apple Blossom Festival). As Wirtén further notes in discussing Project Gutenberg’s  reaction to copyright law,
“…Although digitization now makes it both cheap and simple to post public domain material on the web, the CTEA [US Copyright Term Extension Act] severely thwarts the full potential promised by digitization…  ‘It does not change authorial incentives in favor of preservation. Instead, it keeps creative works from librarians and archivists who stand ready to preserve them all, not just a favored few.’” 
The result is that LAC, as an example of one such archive, is engaged in an uphill battle to issue better quality versions to users, because their resources (both human and machine, in terms of the digitization or preservation of the clips) get eaten up by commercial interests. In the words of Penny McCann, “LAC has a mandate to save material originally produced by the NFB, CBC, Telefilm, and so on, but no money to save independent work, and no time – they spend all their time digitizing clips of WWII for CBC productions.”  Here the curatorial role played by the art agency, SAW Video, is not insignificant: none of the artists could necessarily have undertaken these commissions on their own without much higher costs of transfer fees, research time, even the costs of traveling to the archive in Ottawa (never mind the eventual international distribution of their finished works and accompanying publication).
At question in this recent project is where the legal edges of copyright and the practices of re-use bump up against a culture of artistic production which thrives upon borrowing, remixing and wide dissemination. As Creative Commons founder Lawrence Lessig writes, “Put simply, current copyright law supports the practices of the RO [Read Only] culture and opposes the practices of the RW [Read and Write] culture. Or again, as the law is architected just now, it clearly favors one kind of culture over another.”  The importance of a project likePublic Domain exists in these nooks and crannies, between institutional mandates, commercial interests, and the needs of a creative practice. This project put the artists through a labyrinthine process not because the producers and curators cared that the artists made works that didn’t infringe on copyright, but because they cared that artists had the same rights of access as anyone else might to material that, technically, is ours in the first place.
But what does ‘ours’ mean when we are all global citizens, living online, viewing their artistic work remotely, on screen? This international network of production and dissemination is problematic for entities seeking to enforce copyright and legislation within national boundaries. Different commercial and non-commercial entities often extend different copyright protection to different artifacts in different contexts. For instance, the BBC allows some of their media to be accessed online only when you are in the UK, while YouTube enforces the copyright law of the USA where the company is registered, not the law of where the videos might be uploaded or viewed from. What right does one state-owned organization have over another? If government initiatives decide what gets preserved first, then is the LAC, to take one example, really still ‘a national archive,’ especially when public access is limited or eroded by governmental and institutional pressures?
Art is an international endeavor, none more so than networked new media art, but often it still takes place in real space where it has local impact – sited screenings, local audiences. This is where artist Simon Pope’s project with the BBC archive Charade (2005–ongoing) is an interesting example, as it is not a work that is available beyond a very specific, sited event. While the BBC’s archive of broadcast content is increasingly available online, that access is still primarily based around live-ness, with the public broadcaster investing in technologies which allow users (primarily license-fee payers in the UK) to choose content, to ‘rewind’ or ‘restart’ it if they missed the beginning of their show, or to watch it on demand anytime within a limited time period (such as a week or a month of its original television broadcast). Their archive is no doubt massive, but access is still very much in the ‘scheduled’ model.  The work by Simon Pope, created before the widespread adoption of the BBC iPlayer technology, offers a different take on the idea of the archive, seeking to openly question the reliability of networked technology, and the subjectivity of what is kept in the archive, by prioritizing shared experience.
Charade takes its inspiration from Ray Bradbury’s novel Fahrenheit 451. As Pope explains,
“[The story] depicts dissidents, book people, who are against an increasingly screen-based culture (CCTV, command and control systems) and who seek to preserve literacy. They walk, and memorize texts, passing knowledge from the book back into the body, to hold the knowledge for posterity. Knowing they will be the only source and point in the world where this knowledge will be accessible, they are the living archive…Charadeasks if the technique the ‘book people’ used could be transposed – to take the data from BBC’s broadcast network and share it, so that people would become the data, and embody the ‘media assets’ of culture.” 
Volunteers for Charade were solicited through email networks and eventually joined together in workshops over a number of weeks. There they decided which ‘media asset’ (book, play, television show, pop song, etc.) to memorize and began the process necessary for its later recall in a gathering in a public square. The piece was performed in the UK twice, in Birmingham and in London.
In Charade, the artist established the platform, but the network of participants sharing that platform shaped the project’s end result – very different from a traditional archive structure. Another layer of the project existing in the collective blog and the video diaries uploaded to Flickr and YouTube after the performance;  these ‘media assets’ are an analogy to the art event, ever-accessible even if the original ‘content’ of the work is not. In Pope’s words, the project is “always live and yet always an archive.” 
One might be disappointed to find, when reading about this work, that Pope didn’t reuse loads of great clips from the BBC archive, remix footage in a sexy Christian-Marclay-ish way, nor personally aestheticize the politics of archive, as many artists have done. Yet his action is somehow more radical – to question the collective idea of copyleft, or ‘open source-ing’ proprietary material. This is a deliberate alternative tactic: to ‘liberate’ public domain material from the closed archive, but not to then re-copyright it by applying a veneer of authorship over the re-used results.
This may be the difference between the fun surf clubs that populate the web (the meme generators and repeaters, of which Facebook is now the worst culprit), and the online repositories of moving image work, such as YouTube, whether ‘unofficial archives’ or not: the authorship of the work and how it is marked. One economically-driven, copyright-led constraint of these online platforms is that they presuppose individual authorship, and foster ‘commenting’ but limit actual ‘reuse.’
Without wanting this paper to be about how YouTube influences creativity, I still would like to consider, as my final example, the interesting and little theorized example from the trenches of curatorial practice in this area: the exhibition project YouTubePlay, a “Biennial of Creative Video” produced in partnership with the Guggenheim Museum in 2010 (I notice that a second edition has yet to take place). The project is perhaps most significant not for anything which links the works within it but as an exercise bringing audiences to a single online platform to watch content, via a variety of real-space event-based spectacles. In the words of curator Ele Carpenter, “new media has tried really hard to rethink the relationship between form and content, not just as site or platform-specific, but as ubiquitous. The Guggenheim YouTube project seemingly supports this notion by using the YouTube website as a platform for submission and viewing works (but not for selection) which are then exhibited in museums – as if a YouTube animation can survive equally well in these different contexts. Several of the YouTube works are shorter low-res versions of [the] original, you are watching a ‘trailer’ or a ‘thumbnail’ of the work. Others are specifically made for YouTube, for watching on your laptop at home. Some aspire to the TV screen, others the Cinema Screen, but none of them seem to anticipate the gallery space.” 
It is possible that what linked the videos chosen to be showcased by the Guggenheim was that they, as per YouTube’s terms of service, in no way infringed copyright. The criteria to enter the competition were open, just demanding the works to be something different, not “what’s now,” but “what’s next,”  thereby perhaps inadvertently conceptually excluding works of ‘remix,’ which inevitably, draw on previously created material. Yet, surprisingly, a good example of a work which made the top 25 list was Perry Bard’s project Man with a Movie Camera: The Global Remake, which invites viewers to submit new footage which matches that of the 1929 original film by Dziga Vertov.  The work had languished online after its commission by Cornerhouse for the BBC ‘Big Screen’ in Manchester in 2007. The artist commented to me that she put edited extracts of it on YouTube in 2008 as a documentary and promotional gambit and reluctantly entered a newly edited 3 minute version into the 2010 ‘biennial’ as it is not a work that is made for the passive viewing and commenting behavior that the YouTube platform propagates.  Its inclusion in the top 25 projects was a surprise to her and meant a welcome resurgence of interest in the collaborative online version of the work – away from the YouTube platform.
I hope that the examples raised here suggest that there is a strong need for further scholarship in art history concerning the assumed value of the authored original and the importance of collaborative reuse in relation to digitally-available content. Practitioners are well aware that, in the words of theorist Eric Kluitenberg, “the public domain as a social and cultural space should be distinguished from its juridical definition,”  and it seems clear that art is a good place to have that debate.
1. Edited and revised from a longer version published in both English and French in the book Public Domain, published by Saw Video, 2010.
2. Public Domain (SAW Video) http://www.sawvideo.com/spotlight/public-domain (accessed October 3, 2012).
3. Charade (Simon Pope with the BBC) http://www.bbc.co.uk/arts/privateview/simonpope.shtml (accessed October 3, 2012).
4. YouTubePlay (Guggenheim Museum) http://www.youtube.com/user/playbiennial (accessed October 3, 2012).
5. Vortex (Gennaro de Pasquale) http://cargocollective.com/gennaro/Vortex (accessed October 3, 2012).
6. Penny McCann, personal communication, 2010.
7. There is a difference between fair use in the United States and fair dealing in Canada, both of which consist of possible defences against an action for infringement of an exclusive right of copyright. Material can be used for research, private study, criticism, review, or news reporting. Fair use in the United States also recognises parody – a tactic often used in art – but fair dealing in Canada has not definitely been found to contain exceptions for parody.
8. Beyond the Pale: Preview (Maureen Bradley) http://vimeo.com/12534471 (accessed October 3, 2012).
9. Public Domain Video for SAW Video (Ryan Stec and Véronique Couillard) http://vimeo.com/12548408(accessed October 3, 2012).
10. Tina Piper, personal communication, 2010. See also “What is Copyleft?” GNU Operating System, last modified June 10, 2012 (Free Software Foundation, Inc.: 2009), http://www.gnu.org/copyleft/ (accessed October 3, 2012).
11. Again, Tina Piper pointed out that the contours of the public domain seem different in Canada than elsewhere. In the US, for example, it is very transactional. Copyrights might be held in the US but not enforced in Canada because the market is too small, which raises the issue of digital rights across networks and broadcasting rights.
12. Tina Piper, personal communication, 2010. See also her essay, “An ‘Independent’ View of Bill C-32’s Copyright Reform,” in Michael Geist, From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda, Montreal: Irwin Law, 2010.
14. Ibid, 131.
15. Project Gutenberg, see www.gutenberg.org (accessed October 3, 2012).
17. Wirtén, quoting Deidre K. Mulligan, “Brief of Amici Curiae the Internet Archive et al. filed on Behalf of Petitioners in Eldred v. Ashcroft,” nr. 01-618, December 1, 2001.
18. Penny McCann, personal communication, 2010.
19. Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (New York: Penguin Press, 2008), 97.
20. Two recent examples not addressed in this paper: the Arts Council England and BBC project, “The Space” for free digital access to arts content, see thespace.org, and the widespread unofficial transgression of the UK-border rule about online viewing of live-streams during the London 2012 Olympics.
21. Paraphrased from Simon Pope, “CHARADE: The Peer-To-Peer Distribution of Media Assets Into the Public at Large,” (lecture, CHArt 2006 Conference, London, November 10, 2006).
22. Charade (Simon Pope) http://www.youtube.com/watch?v=A_A4AJZhdqo (accessed October 3, 2012).
23. Simon Pope, personal communication (email), 2007.
24. Ele Carpenter, “back to October’s theme…,” email to firstname.lastname@example.org, 21 October 2010.
25. Play. A Biennial of Creative Video (Guggenheim) http://www.guggenheim.org/new-york/interact/participate/youtube-play (accessed October 3, 2012).
26. Man With A Movie Camera (Perry Bard) http://perrybard.net/portfolio.html (accessed October 11, 2012).
27. Perry Bard, personal communication, February 2010.
28. Eric Kluitenberg, “Frequently Asked Questions about the Public Domain,” in Public Netbase: Non Stop Future / New Practices in Art and Media (Frankfurt am Main, Germany: Revolver, 2008), 106.
Sarah Cook is a curator and writer living in Newcastle upon Tyne, in the United Kingdom. Co-founder and co-editor of CRUMB, the online resource for curators of media art, she lectures and publishes widely about curatorial practice and ‘art after new media.’