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No fair: long-term prospects for regaining unencumbered use a paper presented at the Town
Meeting on Copyright and Fair Use by Gary Schwartz A funny thing happened to me on the way to the town meeting. At the airport I ran into an extraterrestrial of my acquaintance. He asked me where I was off to, and when I told him I was going to Toronto to speak on fair use and copyright, this is what he said. "What humans mean by fair use I cannot imagine. I've never seen a planet of such cheaters. But I think I know what copyright is. I have hung around earth offices and earth libraries. Copyright must be the right to make copies." Indeed, what other impression can one take away from an office or library, where there is always a line for the photocopying machines, and anyone can copy whatever they want, in as many copies as they need, nearly without restriction. When restrictions are imposed, we feel this as an assault on a natural right, almost like a tax on breathing. That certainly applies to restrictions on the use of slides for teaching. This feeling places us at an emotional disadvantage in our present situation, when we are being forced to negotiate for that right. To negotiate at all constitutes an admission that we are not necessarily within our rights when we make photomechanical or photographic or digitized copies. Our natural instincts, and widespread daily practice, are seriously at odds with current jurisprudence, if not the rule of law. Both of these contradictory forces - unrestricted copying and the curtailment of the right to copy - are still growing mightily. The unbridled production of copies is aided by ever more convenient and exciting devices, while curbs on making and using those copies are worked out by the fastest-growing area of the law, intellectual property jurisprudence. This is the schizophrenic situation in which we as art historians find ourselves defending a set of practices to which we have grown accustomed, and which depend on free or cheap use of any and all images. We began behaving this way in an analog world, which was not particularly litigious. The scale of our operations is small, so even if we were infringing someone's rights, the legal game against us was hardly worth the candle. Unfortunately for us, this is now changing. The computerization of art images favors the concentration of high-quality source material in the hands of fewer and larger providers. It makes effective billing possible even for small orders, while the possibilities for policing at least part of the market have improved. In other words, our tiny part of the image industry lies exactly on the cross-hairs of those two antagonistic realms: the copymakers are selling their machines and techniques to us, and the copyright protectors can charge us more easily for using the images we install on them. The threat this poses to the future of our discipline should not be underestimated. At the least, it makes it so much more expensive to practice art history than say literary studies or history without art that running an art history department will be seen as a drain on the financial resources of schools in the humanities. An attendant problem is that the quality of our publications suffers from the difficulties our publishers experience in acquiring rights. This was always something of a problem, but in some fields it is now acute. It is affecting the choice of illustrative materials and even of subject matter, and therefore cuts across considerations of artistic interest and scholarly strategy. Art History is in danger of becoming the History of Art in the Public Domain. How does fair use fit into the situation as sketched here? Until now, having evaded close and regular scrutiny, we seldom had to appeal to the law for the protection of our rights. Now that we do have to do so, the first measure that presents itself is the doctrine of fair use, which itself is under threat. Since all those present know what the doctrine entails in Anglo-American law, I will not define it here. However, I would like to point out that fair use is not a primary right. It is an exemption, a curtailment of another right, that of copyright. As the strength of copyright protection grows, the pressure to sweep away fair use is great. One of the arguments of the copyright industry is that fair use was never intended as an independent principle at all, but as a compensation for a phenomenon known as market failure. It was an acknowledgement of the inability of copyright holders to arrive at separate agreements with all the small-scale users of their properties. Rather than criminalize the entire class of small users, a legal exception was made for the more idealistic ones among them. Now that it is feasible for copyright holders to close contracts with small users—for example through filling in an electronic form on a website—this instance of market failure has been done away with and is no longer necessary. Whether or not you accept this argument, it shows that copyright and fair use involve a mixture of cultural and commercial considerations. Attempts to isolate one or the other, as in an idealistic defense of fair use for education, can never carry the day on their own. However, this is something which we may be able to turn to our advantage, as I will argue below. Shoring up fair use is not therefore a one-time operation. The more capital is invested in intellectual property the more pressure is going to be brought to bear on fair use, and the more anachronistic it is going to look. In a global information market, in which the laws of supply and demand are bound to prevail, will we succeed in maintaining that our particular kind of knowledge constitutes an exception deserving of special protection? Another factor that works against the long-term security of fair use as a moat around the ivory tower is that ivory is not what it once was. The Copyright Act of 1976 stipulates nonprofit status as a factor in claiming fair use. What is to happen if we build the economy of educational and scholarly art history around this exemption, and then commercialize more and more university services, starting with the university presses and then, who knows, the better websites of the art history departments? In view of these considerations, it seems to me unwise to pin all our hopes for relief from onerous charges on images on fair use. There are other avenues which either can provide us with exemptions based on other legal principles, or else could generate sources of income and leverage which would help offset our losses through the payment of reproduction rights. There are eight possibilities along this line that I will discuss very briefly 1. Contesting charges by public institutions 2. Contesting reproduction rights on art in the public domain 3. Contesting reproduction rights based on ownership 4. Contesting claims to copyright on photographs 5. Contesting claims on second-generation reproductions 6. Challenging abuse of power in the management of resources 7. Introducing a system of virtual counter-claims 8. Maximizing our own collective position as holders of copyright 1. The public charge. Many of the museums and archives which levy fees for reproduction rights above the level needed to cover their costs are public institutions. Their charters, or the laws of their governments, may actually forbid such practices. This should be probed case by case and challenged where appropriate. 2. Art in the public domain. Seventy years after the death of an artist [fifty years in the United States], his or work enters the public domain. There is no basis for an owner to levy reproduction rights on the reproduction of their work. It is tantamount to stopping pedestrians on the sidewalk in front of your house and demanding toll from them. 3. Reproduction fees for the owner rather than the maker of a work. Copyright law provides no basis for reproduction rights based on ownership alone. Of course, an owner is not required to make his property available to outsiders, and may under contract law charge for this privilege or for that of photographing it or publishing it. However, the still widespread practice of claiming reproduction rights on no other grounds than ownership should be challenged in the courts. 4. Owners of art often claim to be charging reproduction rights not on the images of the works as such, but on the photographs of them. The legality of this is debatable, certainly when the originals concerned are in the public domain and the charges are pegged at the same level as would accrue to the maker. In several European countries, commercial photography is not protected under copyright, but under what are called adjacent rights. The classic case concerns satellite photographs, which are made completely automatically, but which are protected under a special clause to copyright law, with lower levels of protection and a correspondingly lower fee structure. Although the tendency is to increase the areas protected, there are still countries in which photographs not made as works of art fall outside the provisions of copyright. Work originating from these countries may be substituted for sources from countries with higher levels of protection such as the United States. Even in the States, however, a suitable scale should be worked out, in which the contribution of the photographer is charged at a fraction of what would be paid to an artist. Museums which use copyright on photography as a surrogate for claiming the full charges that an artist would receive should be taken to court on this. 5. Even if a museum is within its right under contract law to levy a charge for the photography of objects in its care, once such a photograph is published there is no copyright on it. In one case of which I know, a publisher who reprinted an image from a printed book was threatened by the owner of the work concerned with a lawsuit for reproduction fees. The publisher stonewalled, and the owner backed down. The implication of this is that an agency working for art historians could maintain a databank of images taken from published sources whose use would be completely unencumbered. The existence of such a source of supply would have a depressing effect on prices throughout the market. 6. Aside from copyright law, there are other kinds of law which can be appealed to for protection against unjust claims. A museum that refuses to allow an outside photographer to work on the premises in order to protect its own photographic service can be challenged on the basis of anti-trust legislation. Other practices as well may constitute infringements of legal prohibitions against unfair competition. Excessively high fees can also be challenged as an abuse of the inherently monopolistic position enjoyed by the owner of a unique work of art. 7. Counter-claims. The above six strategies all involve taking a hard adversarial stance against copyright claimants. I am assured by counsel that test trials on any of these issues, in a well-chosen court, stand an excellent chance of success. Putting the pressure in this way on institutions or businesses which are now routinely charging reproduction fees on legally untested grounds should have the immediate effect of scaring those who scare easily. For those who do not, another means could be implemented. I am thinking of a ledger of counter-claims. For every contestable charge levied, a pro forma counter-claim should be drawn up, payable if and when the pretended legal basis for the charge by the owner is shown to be non-existent. This form, in the amount of the original charge plus administrative costs and postage, of course, should be sent to the institution involved, with a copy to a collecting agency which would verify it and post it in a database on the Internet. The contested charges of all businesses and institutions which take advantage of their power in this way will be made visible. The vast difference in charges from one source to another will be revealed, illustrating the arbitrariness of this market. As the cumulative charge mounts for which a rights-claimer is theoretically liable, in-house discussions on policy with regard to reproduction rights should get more and more entertaining. 8. Turning the tables. In an environment in which protection for copyright holders is on the increase, I fail to see why we should not be more aggressive in staking our own claims. As individual authors in negotiation with publishers this might not be feasible. However, there are other conceivable constructions which could balance the damage we suffer from paying reproduction rights. Just as a premium is added to the price of audio and video tapes for the collective benefit of performing artists, fees could be charged for the use of our contribution to museum information, art publishing, the art market and all other applications of art-historical literature. Historically, scholars have lagged far behind writers, creative artists and performing artists in asserting our claims as producers of cultural goods. Scholarship began as a pastime for gentlemen, and even today there is a lingering prejudice against charging for our knowledge. Now that our free access to the basic materials with which we have always worked is being blocked, the time has come to close the gap. In view of the constant expansion of the boundaries for copyright being claimed by other parties, this should not be difficult under prevailing law. The principle that only literary compositions and not information or ideas can be protected is not engraved in stone. In 1982 D.B. Hopkins published an article entitled "Ideas, their time has come: an argument and a proposal for copyrighting ideas." The epic Silicon Valley court cases over the theft of the "look and feel" of software, some of which were actually won, go even further. We seem to be heading toward the situation postulated in 1975 by N. Henry, who wrote: "what a citizen does is 'copyrightable' by the citizen who does it.'" At the very least, our case in claiming rights on our intellectual achievements is as good or better than claims by owners of art works or controllers of images who have performed no artistic or intellectual achievement at all and who have not even acquired the rights from the maker or original publisher. It will not have escaped your notice that the suggestions I have advanced are all aggressive and uncompromising. This does not mean that there is no room for compromise, but why settle for one before we have made the strongest possible case for our own interests? My eight proposals are aimed at upping the ante, putting sufficient pressure on those who would charge us for our working materials so that the market in those goods will continue to fail, at ever higher levels. Every successful application of added pressure will help us get better mileage out of fair use than the disappointing terms of the original CONFU draft. Rather than begging the image providers to allow us exemptions based on our indispensable contribution to culture and our inability to pay, we should try to build up a position of strength at the negotiating table. Burdening the system with the mechanisms I described will also help to overload the creaking machinery of copyright enforcement. There is always hope that the system will collapse under its own immense bulk, as claimant after claimant climbs on the bandwagon. Take one of the forefront industries of the Information Age, the publishing of electronic informational and educational software. The cost of these products is so high that only through international marketing can a publisher hope to reach the break-even point. Because lively visual and audio materials seem to be essential for commercial success in this kind of publishing, which otherwise is so boring and inferior that customers go back to the book, the publishers are heavily into expensive rights. However, they find it increasingly difficult to calculate these costs, because of the unpredictable variety of claims that await the introduction of a new product in each country where it is launched. If this goes much further, a turning point might be reached, in which the parties involved will be willing to settle for a much lower level of protection and compensation for intellectual property. Personally, I consider the boom market in intellectual property a bubble based on the untenable assumption that ideas and images can be owned. For the moment, though, with all the world behaving as though they can be owned, there is no percentage in acting on the contrary conviction. I would like to close with some broader considerations. The copyright problems we are encountering are not the only area of the law in which we are increasingly at a disadvantage. Nor are these problems merely an accidental outcome of technical and legal developments. The history of modern copyright has been defined, by the Dutch legal historian F.W. Grosheide, as "the history of the degree to which copyright holders have succeeded in finding support in society for legal protection of their material and immaterial interests." To what degree have we achieved such support? Frankly, I don't think we have even begun to solicit let alone capture it. The spectacular growth of art history over the past fifty years, over and above the general success of the academic world as a whole, has filled us with understandable self-satisfaction. Our status seemed assured without our having to go into undignified competition with other specialties or professions. But there are good reasons to suspect that this privileged position is coming under strain. The pressure on us that has led to this meeting is only part of a wider range of issues which places us in an adversarial position vis-à-vis our partners in the world of art history: universities, museums, galleries, publishers, the media, even artists. The tenure system of job protection for everyone above a certain level has given way to a situation in which most of us are in a pool of excessively vulnerable contract workers and independent scholars. In terms of anti-trust legislation, we find ourselves increasingly at the mercy of publishers and museums who, taking advantage of near-monopoly positions in the specialties we practice, extract high-quality work from us for little or no financial compensation. Of course we must fight these battles each on its own terms. However, underlying all of them is one basic problem: the status of the art historian is legally unprotected and socially undefined. In few countries do art historians become public figures, spokesmen for cultural issues and respected representatives of their profession to society. The CAA is too preoccupied with internal organizational challenges to have much impact outside our own fold. How many Americans who did not read Janson in college are able to name a single member of our field or even say what we do? If so, why should we expect public backing in conflicts that pit us against the lawyers of rock groups and movie stars? The history of copyright law is in this regard no different than that of labor law and anti-trust law: only groups which have been able to consolidate their position and convince society of the legitimacy of their rights have been able to achieve a proper level of legal protection. If we can do that, we will have achieved much more than winning a battle with the copyright industry. We will have assured our right to exist as a decently-paid profession for the coming century. If we fail, art history may within a shorter period than we can imagine be reduced to an adjunct to the art trade and a hobby for those who do not have to make a living from it. Quotations from F.W. Grosheide, Auteursrecht op maat: beschouwingen over de grondslagen van het auteursrecht in een rechtspolitieke context, Deventer (Kluwer) 1986. With thanks to Professor P. Bernt Hugenholtz, Institute for Information Law, University of Amsterdam; e-mail: hugenholtz@jur.uva.nl. He is the counsel to whom I refer in the text. The suggestion to put counter-claims on the Internet was made by Leila Kinney in the question session after the presentation of the original version of this paper at Robert Baron's town meeting on fair use and copyright at the 1998 CAA Annual Conference in Toronto. Toronto
Town Meeting Program
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