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Copyright, Fair Dealing and Art in a Digital Age Part Art At Risk: copyright, fair dealings and art in a digital age Art At Risk: copyright, fair dealings and art in a digital age Part Two: Background Research Susan Ballard and Pamela McKinlay revised June 2011 1 Art At Risk: copyright, fair dealings and art in a digital age Art at Risk was a collaborative research project undertaken by Dr. Susan Ballard and Pam McKinlay at the Dunedin School of Art, Otago Polytechnic 2009-2010. It was funded by Ako Aotearoa Southern Regional Hub, the Dunedin School of Art and Otago Polytechnic Research Committee. This project would not have been possible without the support and assistance we have received from colleagues and mentors during this past year. We are indebted to David McLaughlin, the principal of McLaughlin Law (http://www.mclaughlinlaw.co.nz) who specialises in legal issues as they relate to the creative industries. We would like to acknowledge his support in reviewing the legal issues arising from the Case Studies. Our thanks also to Sacha McMeeking and Khyla Russell (kaitohutohu), for their insights and assistance with aspects to do with Matauranga Maori and cultural identity of Iwi Maori; thanks also to Laura Ferguson for her work on the “What’s Fair Poster,” Max Bellamy for photographing the “Can I Use That” poster, Tanya Low at the Bill Robertson Library, and Jenny Clark for proofreading. Our colleagues in the School of Art: Rachel Gillies, David Green, Bridie Lonie, and Prof. Leoni Schmidt provided excellent sounding boards and critical perspectives. We would also like to acknowledge the support of Jenny Aimers, Research Coordinator, and Robin Day, Deputy CEO and Head of Research at Otago Polytechnic for their ongoing support of the concerns and issues arising from research in the arts. Finally thanks to all the tertiary art teachers and students for their generous participation and input into this project. Their stories were the catalyst which got us rolling. ISBN 978-0-908846-47-4 June 2011 Unless otherwise acknowledged this project is released under a cc-by-nc licence, this means that readers are free to copy, download, share and disseminate this research non- commercially as long as full acknowledgement is given. ART AT RISK: Copyright, Fair Dealings and Art in a Digital Age. A research project by Pam McKinlay and Susan Ballard, Dunedin School of Art at Otago Polytechnic. 2 Art At Risk: copyright, fair dealings and art in a digital age ART AT RISK: PART TWO BACKGROUND RESEARCH about.................................................................................5 Background to the project Project Outline Methodology: How can digital images be used? Research in the digital image Each section of this publication is available individually as a .pdf What’s Next? download from our website hub: http://www.otagopolytechnic.ac.nz/schools-departments/art/ lie of the land............................................................15 research-search/academic-projects/art-at-risk.html Information about art and copyright including legal and ethical approaches to art making Introduction to the History of Copyright International Contexts for Copyright Information about Copyright Permissions Introduction to Copyright Alternatives and Creative Commons Matauranga Maori Contexts Exhibition and Publication: Which is Which? Words: A Glossary of Useful Art and Legal Terms where to next?.......................................................51 References and sources for more information Annotated bibliography of copyright, fair dealings and remix practices Bibliography – Sources of references consulted appendices................................................................75 Appendix i: Creative Commons licensing guide Appendix ii: APRA Information Sheet Appendix iiia: Information sheet for interviews Appendix iiib: Consent forms for case studies Appendix iiic: Permission to Reproduce form 3 Art At Risk: copyright, fair dealings and art in a digital age 4 Art At Risk: copyright, fair dealings and art in a digital age 5 about Art At Risk: copyright, fair dealings and art in a digital age background to the project The use of digital images by artists is now widespread. In art schools students engage with From Flickr to Facebook to YouTube students engage both still and moving digital cultures of remix and appropriation on a daily basis. We need to prepare our students for images and negotiate different permissions and database resources every day. A recent critical and informed engagements with these media, and as teachers we need the tools study by technology giant CISCO predicted that by 2013 video will make up 90% of to be able to navigate metadata and data fields efficiently and with knowledge of the legal online communication.3 An understanding of the role of the digital image in the teaching and technical specificities relevant to the digital image. The rules of copyright regarding of art is essential to the development of informed and engaged learners who use images text are now clear. The same clarity does not yet exist for the digital image and puts art not simply because they are there, but because they know and understand the implications practices at risk from legal and ethical challenges and negotiations. of the use of images in a digital age. In this project we have developed guidelines as to how to approach the use of digital images– and answered some of the questions that A study by American University School of Communication, The Cost of Copyright students ask everyday: What can you download from YouTube? Is everything on Flickr Confusion for Media Literacy, 2007, Center for Social Media, found that available to use? Can I cut this image up and call it my own? What happens if I upload my project to Facebook? Being able to confidently answer these questions will raise the The fundamental goals of media literacy education - to cultivate critical thinking level of critical debate surrounding classroom engagement with the digital image and about media and its role in culture and society and to strengthen creative allow for deeper research in the use of digital images in tertiary environments. communication skills - are compromised by unnecessary copyright restrictions and lack of understanding about copyright law. … Copyright law permits a wide The core of art at risk is a set of case studies drawn from a pool of current art students range of uses of copyrighted material without permission or payment. Educational and recent graduates from art schools in Aotearoa New Zealand. Questions of copyright exemptions sit within a far broader landscape of fair use. However, educators today 1 and remix arose during the development of these art projects either at their gestation or have no shared understanding of what constitutes acceptable fair use practices. as processes en route to final student artworks. It is the teaching recommendations and responses to the processes of exploration and experimentation where students push at the This project investigated uses of the digital image and the associated delivery of software boundaries of the complex legal nexus of copyright and privacy that are documented here. and copyright information in the tertiary classroom. Through the provision of a set of resources art at risk presents practical information for teachers working with art at risk was inspired by the Centre For Social Media’s Recut, Reframe, Recycle, Duke digital images. Based on case studies in visual art where students develop projects that Law’s Centre for the study of the Public Domain, and similar projects currently being push at the boundaries of copyright, appropriation, and manipulation of digital images undertaken elsewhere such as the JISC ( Joint Information Systems Committee) in the art at risk documents, analyses, evaluates, considers and recommends methods for UK. We were keen to see if lessons can be carried over from these international studies engaging with digital images whilst paying careful attention to the laws of copyright, and applied to the local situation in Aotearoa New Zealand and also to discuss those understandings of appropriate ethical behaviours, our critical and social contexts in things which might be peculiar to this country. New Zealand Aotearoa, and movements towards open source and creative commons approaches to digital media. We consider the unique bicultural situation of Aotearoa New Zealand and cross-cultural uses of traditional art forms of Iwi Maori in contemporary digital images. At times these Copyright myths abound. Some of the more common include: ‘if it’s on the internet it’s in have been collaborative or creative ventures supported by Iwi Maori. What is at issue, the public domain’, ‘if it doesn’t have a copyright notice it’s not copyrighted’, ‘my use isn’t however, are protests over appropriation of Maori motifs for derisive send-ups of cultural hurting anybody - in fact it’s free advertising’, ‘copyright violation isn’t a crime’, ‘linking is 2 identity such as in Dick Frizell’s Tiki series or cultural stripping and re-working of Maori okay because then I’m not saving the file to my harddrive’, ‘it was fair use’. motifs to suit Pakeha ends. Jill Smith notes that, 6 Art At Risk: copyright, fair dealings and art in a digital age Pakeha critics and commentators, applying a Western aesthetic, react with accusations that Maori contemporary artists constantly use Western images and technology - a confusion of purpose with methodology. The Western artist who borrows the forms or spirit of a dominated culture still remains in a position
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