Kelp.Digital
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Kelp.Digital

Digital Art & Copyright: is our work really protected?

The new digital era is changing our ways of working, interacting and sharing with each other. Basically, digitalization is redefining the way we live. And for artists, it’s opening new paths for creative work to reach more people every day.

This is excellent news. So what’s the downside? The speed of change has happened so fast in recent decades that most of our laws and regulations are too outdated to efficiently govern the complexities of the online environment. A revision of copyright laws is long overdue.

Although we might not think much about it, copyright regulation is deeply entrenched in our day-to-day lives. The series we watch on Netflix, the music we listen to on Spotify or Apple Music, even the YouTube videos and images we browse through on social media are protected (at least in theory) by copyright. We are paying the copyright holders to be able to use the content that they, in turn, bought or licensed from the creator(s).

Unfortunately, the reality of this situation is quite different from the theory. Content creators and artists have their work stolen and misused all the time, and little — to nothing — can be done about it because the most recent international regulations that allegedly protect copyright were last reviewed 25 years ago.

While trying to understand the legal framework behind the current copyright laws, I researched how the concept and regulations have evolved thus far. Looking back to how the laws were created can help us understand what may be next for digital creators. As Thucydides (Athenian military general and historian) said: “History is a constant start over again”.

A brief history of copyright

More than 300 years ago, in Britain, all of the literary work was controlled by the so-called “Stationers’ Company”. One single company had a monopoly over all of the content published, and of course, held all the rights over the material. Can you imagine working on a literary piece, perhaps for years, only to have it banned by the one-and-only company allowed to publish your work? Not very encouraging!

In 1710, things started to change, and the first authors’ copyright protection and freedom of speech came to light: The Statute of Anne. The law gave authors a 14-year copyright term and allowed them to choose which printers would publish their work. Later on, the copyright protection was extended to other fields, giving birth to, among others, the Engraving Copyright Act (1734).

As society evolved, the First and Second Industrial Revolutions took place, and the first photo camera was created (1816). New ways to protect intellectual work became necessary. It took almost 50 years AFTER the first photograph was taken, and finally, laws were created to safeguard artistic expressions such as music, paintings, and photographs: The Fine Arts Copyright Act (1862).

One of the most crucial copyright agreements on an international level was signed not long after that: The Berne Convention (1866). It is an agreement signed by 179 countries and essentially aims to guide and establish some standards for copyright laws.

Technologies continued to evolve, and new ways of creating and reproducing art were continuously being developed. Between the 1950’s and 60’s, the first recording tapes were made. In 1975, the first digital camera was developed, and by 1989 we already had a compact and lightweight camcorder available in the market. During this time, copyright laws continued to evolve. The Berne Convention, for example, has seen various modifications, and its current version is from 1979.

Throughout the last half-century, digital devices gradually transformed our lives. By the end of the 20th century, the World Wide Web was launched to the public, drastically changing how we communicate and interact. The Berne convention started to become insufficient, so new conventions and treaties were necessary to contemplate the digitalization of content. The WIPO Copyright Treaty, signed in 1996 with 110 countries currently adhering, was the last international treaty aimed to protect authors in the upcoming digital environment. Twenty-five years have passed since then.

Things change

I will give you a few seconds to think about how our lives have changed from 1996 until today…

I, for example, still remember when my dad used an old analog camera and would spend lots of time getting everything ready — checking the light, the position, the angle — everything, for a single shot. If you were born in the 21st century, you understand what I mean.

For those who don’t, let me explain:

Old photograph rolls had up to 12 or 24 shots available to take pictures, and at the time (at least in Argentina), getting one developed, plus printing the image, was very expensive. Therefore, pictures were like treasures that needed to be as perfect as possible because you had a limited amount of tries.

Very different from today, right?

Photo taken by Gustavo Di Si

With the constant technological advances, new ways of artistic expression, connectivity, and communication arose. Today everyone can easily become a content creator and be part of the “creative economy”.

While the creative economy has grown exponentially, copyright hasn’t evolved fast enough. Laws and regulations — especially at an international level — are still a quarter-century old. As a result, we’ve arrived where we are today: a situation where content creators have little to no control over their work once published on the wild Internet.

The new creative economy cannot run on industrial age tracks

In today’s digital era, most of the rights to our content are accumulated in the hands of a few tech corporations. They’ve accustomed users to reuse other people’s content for free (which makes everybody’s life easier). However, many of us are not really aware of the “price” we pay: the rights to our content and personal data.

When we sign up to these platforms, we accept their terms and conditions. In most cases, this entails giving a “non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license” to our content plus access to pretty much all our information. Essentially, we are reinforcing the Big Tech’s quasi-monopoly model. In exchange, they give us “free” access to their network and allow us to use other people’s content without asking for permission or paying anyone.

This model will not last long. More than 20 years ago, the creation and distribution of content were extremely limited. In recent decades, we have all experienced the rise of a new era defined by the massive creation and consumption of content. Today, the interaction with content and distribution is no longer a monopoly — it lies in the hands of millions of users.

As a consequence, the previous rules related to copyright have become obsolete and need urgent change. While some governments and regulators are already taking steps in the right direction (see Article 17 of the EU Copyright Directive), we are still far from having a successful international legal framework. At Kelp.Digital that’s what we call Copyright 3.0: a new globalized model that protects both content creators and consumers, following the decentralization of data and content happening in the digital environment.

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