Chapter 1: Introduction

Introduction

Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves. The term “intellectual property” denotes the specific legal rights that authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself. And this already complex description becomes even more convoluted in the realm of knowledge and cultural production. The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit of innovation and the disclosure of knowledge into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period. From the perspective of economics, intellectual property is a temporary monopoly on the use or exploitation of that good, supported by legal enforcement mechanisms. Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.

Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time.

A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder an exclusive right to commercially exploit the invention for a certain period of time (typically 20 years from the filing date of a patent application).

A trademark is a distinctive sign which is used to distinguish the products or services of different businesses.

An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).

A trade secret (which is sometimes either equated with, or a subset of, “confidential   information”) is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal.

Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.

Copyright

Copyright is a form of intellectual property law alongside patent and trademark law regulating cultural creation and reproduction. Broadly speaking, copyright seeks to protect the creative mental process embodies or materially expressed in different types of cultural media including artistic, literary, dramatic and musical works by giving owners (usually or author) the right to control and exploit the work in which the right subsist. This includes the right to copy the work and perform it in public. Other users must obtain the consent of the copyright owner to undertake these acts in relation to the work, otherwise they risk infringing the copyright. Civil and criminal remedies exist for the owner when the rights are infringed. The rights of copyright owners in most jurisdictions, last for the lifetime or the author plus seventy years post- mortem.

Copyright ownership is distinct from physical ownership of the work because copyright protects what is intangible in the work. In addition, multiple copyrights can exist in a single work. For example, in a film, individual copyrights may protect the film itself (the artistic work) the spoken words (the literary work), the script (the dramatic work) and the sound track (the musical work).

In addition to copyright, moral rights exist to protect authors. These rights, according to Ruth Redmond Cooper, include the right to be identified as author (paternity), to prevent false attribution (attribution) and to prevent derogatory treatment of the work (integrity). In contrast to copyright, moral rights are unassignable and under some jurisdictions, like France, perpetual, Derogatory treatment encompasses both mistreatment of the original work and acts of copying which are prejudicial to the honour of the author, including distortions and caricatures. Moral rights, as understood by Anthony Julius imply that an indissoluble bond exists between author and work and that in damaging a work or failing to ascribe proper recognition, the creator is somehow harmed.

For defenders of  copyrights, the purpose of  copyright is to protect artists from acts of intellectual ‘theft’ by others. However, for many artists and curators, the ‘intrusion’ of law into the hallowed sphere of artistic production in perceived to be, at the least, nothing short of perverse and, more ominously, to set a precedent for state restrictions on artistic freedom and individual creativity.

Absolute originality is an untenable ideal, it is clear that all ideas are based upon existing ones. Critics of copyright law argue that it is in the nature of art and creativity to copy, quote and gather from all sources, including art itself and popular culture, and that the current law unfairly restricts and regulates the activities of artists; a problem exemplified where copyright holders refuse to allow their material to be used or seek to demand unreasonable fees. They also point out that the law is perilously out of step with the ‘post-modern’ practices of contemporary artists who used and re-contextualize the readymade imagery and material of our culture, thereby calling into question the values of originality and authorship upon which both modernist aesthetics and copyright law are seemingly built.

Yet the artists have found themselves to be the victim of  copyright disputes, copyright law has also become commercially exploited by artists and museums a consequence of the circulation of images throughout society. Licensing agreements for the reproduction of artists’ works have become increasingly common in the spheres of advertising and publishing and copyright collection societies like DACS (in the U.K.) and SPADEM ( in France) IPRS (India) have been formed with the specific purpose of enforcing copyright licences.

But copyright actions are not only embarked upon by artists for financial reasons; they are also perused to uphold the moral rights of artists to control the context in which their work is reproduced and presented, with the intent of protecting the original form being ‘degraded’ by undesirable commercial association. A well-known example is the 2000 case in the U.K. won by the Cuban Photographer Alberto Diaz Gulterrez against an advertising agency. The court upheld the photographer’s legal right to prevent his iconic photograph of the Cuban revolutionary leader, Che Gyuevara, from being further exploited in an advertisement for a brand of vodka and he settled for out of court damages paid to the charity.

Such cases illustrate that copyright law has important ramifications on both sides of the art world fence with artists being both protected as creators and charged as plagiarizers of copyrighted material. Yet the relationship of creativity to copyright connects with much wider debates about the nature and legitimacy of copyright as a form of intellectual property law and its impact upon society in the light of vast cultural, economic and technological changes. On this, Johnson Okpaluba notes; “The debate as to the form that copyright law should take in the digital era has led to a polarization of view points between those who wish to see these rights and those who believe that copyright is already over- strength and that users need to be considered so that creativity and creation of culture products are not shifted”.

It is clear that copyright raises complex cultural, philosophical, political and ethical questions regarding both its assumptions of ‘authorship’ and ‘work’ and its justification as a property right in particular the premise that ideas can be owned as private property when disseminated in the public domain and that legally enforceable restrictions can be placed upon other users. For critics of copyright law, as Kathy Bowrey points out in her contribution, these restrictions are seen as unjustifiable, as the proliferation of reproduction in the digital environment renders legal mechanism for controlling information redundant.

The need to balance private authorial rights with wider public rights (e.g. free expression) is key to the shape of copyright law, which can be seen as an uneasy compromise between these two competing principles. Copyright laws recognize that new cultural creations are inevitably inspired by existing forms, the do not give authors unfettered rights over their ideas. These limits are encoded in devices such as the so-called idea- expression dichotomy, which implies that copyright cannot apply to ideas alone, but only to their material expression. They are also reflected in fair use exemptions. Where the limits should be drawn, however, is a matter for continuous debate and revision.

Copyright is both a right of authorship and a property right. Inscribed within its structure is a tension between its existence as a right to protect authorial expression and its locus as a commodity that can be assigned, sold and licensed to others, including publishers. Paradoxically, as Jane Gains has observed, the growth of  copyright law has witnessed the disappearance of the individual author as copyright holder and the emergence of the corporation as owner – exporting its economic benefits long after the death of the author. In a globalized capitalist society predicated upon the rapid reproduction, dissemination and consumption of information and images, it may seem inevitable that copyright law should assume this central role as a mechanism in exploiting what are valuable, intangible commodities. But to copyright sceptics like Peter Drahos, the corporate ownership of copyright in further evidence of its negative influence as a constraint upon communication and its role in the erosion of the public domain. This is reflected in some alarming cases, as for example when the Walt Disney Corporation demanded that the artist, Dennis Oppenheim remove his public sculpture, incorporating the figures of Mickey Mouse and Donald Duck.

On close inspection, copyright emerges as a complex constellation of legal, cultural, economic and technological forces raising a multitude of demanding questions. How are we, for example, to measure originality and creativity? How do we differentiate between inspiration, interpretation and plagiarism? How do we balance intellectual ownership with the rights of others to free expression? Despite its growing importance both within the artist community and within culture at large, there is a remarkable lack of understanding of the basic structure of copyright, as well of the relationship implicated between the law, culture and art.

In view of the growing significance and its consolidation over the sites of conflict i.e the production and control of knowledge and culture, this research aims  to  understand the  chequered history of  Copyright,  its manifestations, implications, processes of  signification and  the  claims and counter claims.

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