5. Can the developer of software used in a new media work claim rights?

Some new media works rely on computer software for their operation. These programs are composed of instructions for the computer called source code. Software programs have been recognized been recognized as literary works since the early 1970s and are thus protected by copyright. Software developers own the reproduction, adaptation and distribution rights to their source code. Some artists produce their own source code and software. Others licence programs from the copyright holder and, ideally, obtain a copy of the source code files. When a museum acquires a work, it should obtain not just the right to use the software but also access to the source code, in order to be able to migrate or emulate the work’s content for future conservation.

 

As observed by the artist David Rokeby in an interview on the documentation and preservation of the different versions of his work Machine for Taking Time, the conservation of some new media works makes artists and museums dependent on the software designer:

 

I realized that in the long term it would be better for me to own as much of the code that my pieces run on as possible so that I could reconstruct in the future if I had to. Or, conservators in the future could reconstruct. […] I don't feel good about selling someone a work if they have long term expectations for its longevity if it's based on a piece of software that for example requires an authorization and the company may disappear.

 

Since the 1980s, communities of developers, mainly students and researchers, have voluntarily waived their rights under copyright law to produce open source code software, also called free software. “Free” in this context refers to the freedom to work with and alter the code. Free software should not be confused with “freeware”, meaning programs available at no cost but not necessarily with access to the code.

 

Open source software is distributed with a free or paid licence that sets out the user’s rights and obligations. The most popular and well-known example is the GNU General Public License, which allows users to:

 

• run the program for any purpose;

• study how the program works and adapt it to their needs;

• redistribute copies;

• improve the program and release the improvements to the public.

 

In keeping with the open source code philosophy, users are required to make their version of a source code publicly available for reuse and further improvement. This means that artists who create with such software must provide the museum or other buyer with their source code to facilitate the work’s long-term conservation.

Example: Embryological House (1997-2002), Greg Lynn

American architect Greg Lynn’s Embryological House project was created using animation and geometric modelling software as well as digitally generated physical models. It remains a conceptual project and is preserved in the form of digital files at the Canadian Centre for Architecture (CCA). The institution has encountered conservation problems with this work, because the digital formats and operating systems from the late 1990s are now obsolete. Consequently, the software must be reproduced. The CCA has envisaged converting the original digital files to formats compatible with open source code software so that the work’s long-term preservation is not dependent on commercial licensing to migrate the project’s content to new environments.

 

Conclusion

The above overview and examples are offered in the hope they will help museum professionals avoid copyright problems related to new media collections. When the legal complexities are handled properly, everyone benefits – the institution, the artist and the public.

 

 

Elaine Tolmatch, Grants Co-ordinator for Government and Foundation Giving, The Montreal Museum of Fine Arts

and Stéphanie Corriveau, DOCAM Research Assistant

 

 

< Prev		Next >