Copyright – or not?

 

Copyright laws protecting the exclusive rights of artists to their creations have garnered controversy in recent years, not least due to file-sharing and piracy issues in relation to the international music industry.

The first copyright laws were introduced in Britain in 1710 to ensure that authors received payment for their work when submitting their manuscripts to industrious book publishers. The law ensured that authors were eligible to royalties when copies of their books were sold and that they enjoyed exclusive rights to their intellectual property for a number of years (21 years at the time). This meant that no one could publish a novel without the authorisation of the writer.

Copyright laws have since been expanded to over new areas, such as visual art and music. More recently, photographs, comics, movies and computer programs have been added to the list of intellectual products covered by copyright legislation.

This extensive inclusion of new intellectual products in copyright legislation has come in response to copyright infringement issues related to the Internet. Copyright issues are therefore far more complex today than ever before.

A straightjacket for the arts

Stina Teilmann holds a Ph.D. in Danish and international copyright. She points out that one of the problems with current copyright legislation is the lack of differentiation between different kinds of intellectual property, such as art and computer software. “Different kinds of works need different kinds of protection,” she says and emphasises the need to readdress copyright laws to make them less of a straightjacket for artists and those who communicate art.

Copyright laws have in several ways proved to be double-edged swords and cause friction between artists and those who seek to use and communicate their artworks in different contexts.

Artists need to be secured basic rights to their work. However, copyright laws also stipulate the conditions by which the public is granted access to these works for research, artistic inspiration or for wider communication to the public. Where dilemmas appear is when artworks fall between the classic definitions of genres or when artists appropriate images created by other artists, such as the case with collages, to create what can generally be considered entirely new artworks. 

As far as public access to artworks and wider cultural exchange is concerned copyright legislation is a constraint. Artists have always sought inspiration from the work of other artists – they all stand on the shoulders of each other.

In the development of the arts it has also always been imperative to constantly challenge established conventions, which also implies the convention of an artwork being the sole property of the creator.

Today there is a fine line between seeking inspiration, exchanging information and outright theft and in many cases copyright infringement issues are now resolved in a court of law, not least since major economic interests are often at stake.

The rights of artists

Copyright laws ensure that the artist is always to be credited when the artwork is performed, exhibited or reproduced. The laws also ensure that the artist holds the exclusive right to the dissemination and performance of the artwork, including the sale of copies. An artist thus holds the exclusive right to reproduce an artwork, whether a painting or novel, until 70 years after his or her death.

Artists may choose to sell or transfer his or her exclusive rights. In Denmark, we also have what is known as “licence agreement management” by which Copydan manages royalty collection for artists and other copyright owners.

Too long protection

Although some restrictions apply to copyright ownership, copyright laws nevertheless often hamper initiatives to communicate artworks to a wider audience. One outstanding example is the Matisse estate, which is very restrictive in its management of the rights to the works of Matisse and is likely to continue to be so until their copyright exclusivity expires in 2024. 

According to copyright expert Stina Teilmann, such restrictive management of copyrights can be detrimental to research and the communication of artworks. “A copyright coverage period of 70 years after the death of an artist is far too long. After all, the public has also helped create Matisse, so why should an estate manage the rights to his paintings? They are common heritage. In this case copyright laws become an instrument of control rather than tools of management and that wasn’t the intention. The intention was that artists and their families were simply to be ensured a living,” states Stina Teilmann.

Copyright in crisis

Art historian Niels Boe Hauggaard, MA, who has worked intensely with copyright issues, is outspoken in his criticism of the drawbacks of copyright legislation in relation to the communication and wider dissemination of visual art: “Unlike the infringement of copyright in relation to literature, film and music, which hurts royalty revenues, then the photographic reproduction of visual art in the context of the communication of art merely promotes the wider appreciation of the original artworks, which definitely does not harm the artist”, Niels Boe Hauggaard points out.

“It seems that those entrusted to manage the rights of visual artists have drawn too heavily on the blueprint of copyright legislation within areas where piracy is a real problem. Ideally, copyright laws should balance the exclusive rights of artists with the public need for access to information. In my view this balance has now tipped in ways that makes it difficult to promote knowledge of artists to the benefit of all, also the artist. The very rigid interpretation of “copy” and “original” in copyright legislation should, therefore, be modified when applied to images,” says Niels Boe Hauggaard. 

“One of the solutions to this issue could be, within reason, to ease the rules that govern the reproduction of artworks so that artists are not required to give their consent. After all, artists are not asked permission when they are quoted in articles or books, which would otherwise constrain access to information.” 

Need for revision

One of the reasons for this unfortunate development within the management of copyright is no doubt to be found in the vested economic interests. Today many industries and stakeholders make a living from the application of copyright law and the maximisation of royalties and ‘resale right fees’. This is one reason why there is such a powerful vested interest in maintaining copyright coverage until 70 years after the death of the artist.”

Professor of Immaterial Rights at the University of Copenhagen, Jens Schovsbo, has argued for the introduction of better protection of the users of artworks with the aim of enhancing the free flow of information and offering greater ‘freedom of speech’ in relation to copyrighted artworks. Copyright protection should additionally be eased in relation to commercial use of artworks as well as the wider communication of art. He also believes that the 70-year copyright protection period should be shortened.

Although different models may be favoured by different stakeholders there is nonetheless a general consensus among legal and financial experts, researchers and large parts of the artist community that copyright laws are in crisis and that a revision is necessary so that the rights to contemporary artworks become more democratic.

FACTS ABOUT COPYRIGHT

• The first copyright law soon celebrates its 300-year anniversary. The world’s first copyright law was adopted in Britain in 1710, and just under 80 years later the first such law was introduced in France. In Denmark copyright laws were introduced in 1867. 

• Artists enjoy copyright protection until 70 years after their death, but rights can be transferred in part or in whole. The law extends basic rights to the artist but also opens the door to speculative exploitation and monopolising. Copyright laws have drawn controversy in recent years since the digital age has revolutionised reproduction and made copyright laws more difficult to enforce. 

• Copyright laws in Denmark extend a “resale right” to artists that ensures a royalty is paid each time their artwork is resold. This resale right was introduced in Denmark in 1990 and implies that artists (until 70 years after their death) enjoy the right of 5% of the sales price each time one of his or her artworks is resold. In the auction catalogues these works are marked with the abbreviation "CD", which stands for Copydan. Large sums are thus allocated to the heirs of artists whose works are highly valued, such as Picasso, Matisse and Miró.

• In Denmark, resale rights are managed by the collective society Copydan, which also manages royalty collection on behalf if its members. Artists can enter a license agreement with Copydan, which extends exclusive rights to Copydan to manage their royalty collection.