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Arts Council on IP

The Creative Industries (CIs) currently account for about 8% of the UK’s gross domestic product. Governments across the world recognize the importance of such industries and much attention is currently focused on how best to grow such industries. It is usual to group together such diverse businesses together because most, in some measure, are linked to intellectual property (IP) laws. However, the diverse nature of the CIs and their relationship to copyright law is complex and shifting.

Arts Council England exists to support the practice of creative artists and also to ensure that the benefits of such cultural practice are made as broadly accessible as possible. This means we are committed to creative diversity and to encouraging links between the arts and other sectors of the economy. That entails careful consideration of what forms of legal and financial instruments best support creative practice and distribution of cultural works.

In 2001, the Arts Council’s Interdisciplinary Arts Department initiated the CODE Conference (Collaboration and Ownership in the Digital Economy), a major international conference that examined the principles behind and developments in the Free Software and Open Source movements and how collaborative and distributed forms of creativity and ownership were starting to be adopted in other fields of cultural practice. The legacy of that conference has been further developed through more recent events such as the Music and Technology conference (free publication available, see below for details) and the Intellectual Property and the Public Domain Summit, both held at the Royal Society of Arts in 2004, which brought together artists, activists, and industry representatives to examine the role of IP in terms of new business models, innovation and public access to cultural materials. The department has also supported research initiatives into the role of IP in digital distribution, and also new forms of ‘social property’ and issues of ‘knowledge transfer’.

These initiatives have highlighted both the complexity of the CI sector, the spectrum of practices developing within it and, also, its difficulties.

The rights of creative people are primarily expressed within copyright law. However, those laws are also intended to express other interests. There are currently two major forces that shape the law. In most countries, IP laws are developed in relation to the needs and creative imperatives of larger scale creative industries, such as movie and music businesses. At the international level, such laws are now shaped primarily by the rules governing international trade.

Currently, very little attention has been paid to the needs of artists, smaller media players and the requirements of emerging forms of creative practice. Development is not solely driven by technology; the way such inventions are used is also vital. New ways of thinking and doing arise in relation to new technologies. Many commentators have suggested therefore that there is a growing mismatch between contemporary cultures of production and consumption and the law. This works two ways. Many creative practices and strategies fall outside the narrow protection of copyright law. But, even more problematically, some creative work also runs the risk of breaking the law. There are other practical problems, which any small operator faces. Lawyers are expensive and laws increasingly complex. For large businesses, legal transaction costs are relatively small. But for sole traders, and emerging CIs, the relative costs are huge. New technologies have lowered production costs, but small players are also at a disadvantage when negotiating contracts with the ‘gatekeepers’ who control access to developed markets.

There are also conceptual challenges. The concept of publishing has been under constant review since the emergence of the photocopier. The web has accelerated that process. The response in terms of social practice and creativity is complex. In some arenas, the ‘traditional’ business model – artist as copyright creator; publisher as copyright exploiter; consumer as copyright user – is under pressure. The current interest in the concept of ‘creative reuse’ increasingly blurs such roles, while open content licensing systems (such as Creative Commons) facilitate the practice while keeping it within the bounds of existing copyright law. In practice, we have also seen that artists can be quite pragmatic about their relationships with copyright law: sometimes licensing the copyright in their works to other distributors; sometimes appropriating other peoples’ work to generate something new; and sometimes giving their work away free for others to reuse.

Our recent research into these practical and conceptual issues has made us more aware of the gap between creative practice and the law. Creative practitioners urgently need more information about what their options are in this increasingly complex field. To do this we are committed to the development of Intellectual Property Toolkits, which will see us continuing the series of educational and informational events and products aimed at raising awareness and knowledge of current debates on intellectual property and their effect on art and cultural practice amongst artists, the wider creative economy and policy-makers. To this end, we supported the testing of the UK version of the Creative Commons licences and are supporting the pilot of a nationwide service offering legal advice to artists. See Artquest.

On 5 March this year, we collaborated with the Centre for Arts Research, Technology and Education at the University of Westminster to present a study day, Ways of Working 2: Appropriation and Collaboration in Contemporary Arts Practice. This event brought together a range of creative and legal practitioners to present and examine emerging issues in this area. A range of legal and peer-to-peer agencies including top law firms and artist’s agencies met and debated with a wide range of artists working in areas from painting and moving image to new media and mash-up. One of the most successful parts of the day saw a range of organisations (from lawyers Mischcon de Reya and Finers Stephens Innocent to Creative Commons UK, Openmute and the University of Openess) offering free surgeries and one-to-ones for artists. Demand for these surgeries was very high, and this ‘market place’ session was a hive of activity as artists, uniquely, were able to compare the advice they received from peer-to-peer organisations and legal service providers in order to find the best options for them.

A publication based on the event is in production, and will help to raise awareness of these issues, to signpost the kinds of information and resources that are currently available to artists, and illustrate the diversity of current artistic practice in relation to copyright and IP.

The event clearly illustrated the knowledge gap of many artists with respect to the law. But, it also went further. Many senior legal practitioners recorded their surprise not only at the current complexity of creative practice, but also at the widening gap between such practices and copyright law.

The Arts Council is planning more events of this nature and will continue research into this complex area in the future.

Jaime Stapleton
Art & Industry Officer, Interdisciplinary Arts, Arts Council England

Futher Resources

The CODE Conference

To request a free copy of the Music and Technology publication, or to receive information about future Arts Council events and publications relating to the arts and copyright, please contact Andy Hill in the Interdisciplinary Arts Department, Arts Council England: andy[dot]hill[at]artscouncil[dot]org[dot]uk

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