1. What rights accrue to artists and to museum institutions in Canada and elsewhere?

Canada

In Canada, the Copyright Act provides protection for literary, artistic, dramatic and musical works (including architectural plans and computer programs). This applies only to original works, not copies, produced by one or more creators.

 

Web-based works are also protected by copyright, but the use of Web technology engenders new and complex situations. Richard Rinehart, author of Nailing Down Bits: Digital Art and Intellectual Property, observes that few legal precedents have been established in this emerging field and that courts may base their rulings on established community practice.

 

Canada’s Act addresses two notions: copyright and moral rights. Copyright concerns proprietorship and thus protects the artist’s economic interests, among other things. It covers the work’s reproduction in any material form, presentation to the public by telecommunication and exhibition for purposes other than rental or sale. It should be noted that, unless otherwise agreed, copyright does not accrue to the creator of a work made in the course of employment or as a paid commission. Moral rights recognize and defend the artist’s individuality. They protect the integrity of the work and the artist’s right to attribution as its creator or to remain anonymous. Moral rights may not be assigned, but in Canada they may be waived.

 

Artist's rights

Copyright to the work

• Adaptation

• Reproduction

• Publication and marketing

• Public performance

• Presentation to the public by telecommunication

• Rental

• Public exhibition

• Compensation

 

Moral rights to the work

• Integrity

• Attribution

• Anonymity

 

In Canada, copyright and moral rights are automatically granted to the creator of an original work. These rights subsist during the life of the artist and for 50 years thereafter.

 

In the case of joint creations, the Act provides protection during the life of the creator who dies last and for 50 years thereafter. Rights may also be contractually granted to others who have contributed to the creative process, such as programmers or assistants.

 

The reproduction of a work by a museum for collection management purposes does not constitute copyright infringement. It is allowed for curatorial and conservation functions, especially for works that are deteriorating, damaged, stored on an obsolete medium or call for unavailable technology. Reproduction for any other purpose requires the artist’s authorization.

 

Museum institution's rights

• Reproduction of a rare, unpublished work that is deteriorating

• Reproduction of a deteriorated work for consultation

• Reproduction of a work stored on an obsolete medium

• Reproduction for cataloguing purposes

• Reproduction for insurance and police investigation purposes

• Reproduction for restoration purposes

 

Museums are duty bound to preserve the integrity of the works they acquire. For new media works, this includes defining the most appropriate conservation strategies. To this end, some institutions have developed artist questionnaires and cataloguing forms to gather information about the work that simplifies the conservation process. In this way artists become mediators and facilitators, transforming the traditional creator and museum curator roles. New media works require the close collaboration of artists and curators at the time of acquisition and for public presentations.

 

To consult these documents:

• Artist Questionnaire about the work

• Cataloguing form

 

Example: Tlön (2003), Christine Davis

Christine Davis’s installation Tlön or how I held in my hands a vast methodical fragment of an unknown planet’s entire history, owned by the Montreal Museum of Fine Arts (MMFA), is composed of two projectors that play a slideshow of cosmic phenomena images on a screen of butterflies. The conservation of Tlön is complicated by the delicate nature of the butterfly screen and the use of aging technologies. The dated projectors, which are controlled by software that regulates the cadence and luminosity of the slide dissolves, are no longer manufactured.

 

In an interview with Christine Davis a few years after Tlön was acquired, the MMFA learned that the artist considered the work ephemeral and felt that its components should not be replaced with a view to permanent conservation. Although she agreed to have the slides transferred to a digital medium, she refused to allow the work to be exhibited with a new projection device, judging that the result would be an edulcorated version of the original. In her view, the existing technological components go hand in hand and are integral to the work. However, she has recommended that the MMFA record Tlön in operation on high-definition 35mm film. In order to respect the integrity of the work as defined by the artist, the museum must accept that, eventually, the work will become inoperable for exhibit. But at least there would be an audiovisual document to attest its existence.

 

Europe

Most European Union countries govern intellectual property with the civil law concept of “right of the author” (droit d’auteur), the exceptions being the United Kingdom and Ireland, which use the common law notion of copyright. The term of protection is life plus 70 years, except in Spain, where it is life plus 80 years, and in France, where it extends to 84 years and 203 days for artists whose careers were affected by the world wars.

 

All creators hold proprietary rights and moral rights to their work.

 

Proprietary rights include public exhibition rights, reproduction rights and royalty resale rights. Royalty resale rights entitle artists to a percentage of the resale price of their work if the sale is made by an art market professional (auction house, gallery, art dealer) anywhere within the European Union.

 

Moral rights are deemed perpetual, inalienable and non-assignable. This means that they cannot be waived and that they subsist even after the work enters the public domain. Five rights are usually recognized:

 

• Right of publication (right to determine when and how the work is first presented to the public);

• Right of withdrawal (right to withdraw the work from circulation after its publication);

• Right of attribution (right to be identified as the creator of the work on any presentation or reproduction, or to remain anonymous);

• Right to integrity (right to prevent any material or conceptual addition to, deletion from or other alteration of the work);

• Right to protection of honour and reputation.

 

United States

The United States has attempted to harmonize its copyright legislation with that of the European Union by adhering to the Berne Convention, in 1989, and passing the Visual Artists Rights Act (VARA), in 1990. This law acknowledges two of the moral rights recognized in Europe: the right of attribution and the right of integrity, in particular for paintings, drawings, prints, sculptures and photographs produced exclusively for exhibition purposes and existing in a single copy or in limited editions of 200 or fewer signed by the artist. Copyright protection subsists for 70 years following the artist’s death, after which the work enters the public domain. United States copyright law protects the artist’s expression of an idea but does not protect the idea itself. And contrary to Canada’s Copyright Act, VARA does not grant creators the right to alter their work after it has been resold to a third party.

 

Furthermore, the U.S. is reluctant to recognize resale royalty rights. The federal government opposes the enforcement of such rights, and only California has legislated a royalty (5%) on the resale of works by local artists within the state or elsewhere.

 

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