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Colaboran en este número / Contributors in this Issue: Carola Streul, Alberto Bercovitz, Ignasi Labastida i Juan, Javier Gutiérrez Vicén, Lawrence Lessig, Daniel G. Andújar, Ricardo Echevarría, Pablo Genovés, José Ángel Artetxe, Pedro Medina, Marcos Moraes, Pablo D. Olmos, Juan Vicente Aliaga, Brian Curtin, Mónica Núñez Luis, David Liss, Mariano Navarro, Filipa Oliveira, Vicente Carretón, Santiago B. Olmo, Uta M. Reindl, Eva Grinstein, Isabel Tejeda, Juan Sebastián Cárdenas, Alicia Murría, Chema González, Asun Clar y Francisco Baena. Especial agradecimiento / Special thanks: Horacio Lefèvre
ARTECONTEX TO ARTE CULTURA NUEvOs MEDIOs
ART CULTURE NEW MEDIA
ARTECONTEXTO arte cultura nuevos medios es una publicación trimestral de ARTEHOY Publicaciones y Gestión, S.L. Impreso en España por Eurocolor Producción gráfica: El viajero / Eva Bonilla. Procograf S.L. ISSN: 1697-2341. Depósito legal: M-1968–2004 Todos los derechos reservados. Ninguna parte de esta publicación puede ser reproducida o transmitida por ningún medio sin el permiso escrito del editor. All rights reserved. No part of this publication may be reproduced or transmitted by any means without written permission from the publisher. © de la edición, ARTEHOY Publicaciones y gestión, S.L. © de las imágenes, sus autores © de los textos, sus autores © de las traducciones, sus autores © de las reproducciones, VEGAP. Madrid 2006
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Traducciones / Translations: Juan Sebastián Cárdenas y Benjamin Johnson. Amy Glickman (Traducción de Problemas que plantea la Ley de Propiedad Intelectual española a los autores de obras visuales por Alberto Bercovitz)
Esta publicación es miembro de la Asociación de Revistas Culturales de España (ARCE) y de la Federación Iberoamericana de Revistas Culturales (FIRC)
Esta revista ha recibido una ayuda de la Dirección General del Libro, Archivos y Bibliotecas para su difusión en bibliotecas, centros culturales y universidades de España.
Fe de erratas En el artículo sobre la artista Kimsooja publicado en el nº 11, el nombre de su autora, Oliva María Rubio, estaba incorrectamente escrito en las páginas 2, 62 y 68. Lamentamos profundamente el error y pedimos disculpas tanto a la autora como a nuestros lectores. Errata In the article about Korean artist Kimsooja included in our 11th issue, the name of its author, Oliva María Rubio, was incorrectly written on pages 2, 62 and 68. We apologize both to the author and our readers for this regretable error.
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SUMARIO CONTENTS
Primera página / Page One ALICIA MURRÍA
DOSSIER: LOS DERECHOS DE LOS ARTISTAS / THE ARTISTS’ RIGHTS
6
Aspectos del copyright para autores en el campo de las artes plásticas. El contexto europeo Copyright aspects for Authors of fine art in Europe CAROLA STREUL
13
Problemas que plantea la Ley de Propiedad Intelectual española a los autores de obras visuales Issues raised by the Spanish Intellectual Property Act with respect to the creators of visual works ALBERTO BERCOVITZ
19
El sistema de licencias de Creative Commons / Creative Commons’ License System IGNASI LABASTIDA I JUAN
26
La nueva economía y el arte. El pez grande quiere comerse al chico Art and New Economy. Big Fish Eats Little Fish JAVIER GUTIÉRREZ VICÉN
34
El robo al servicio del arte / When Theft Serves Art LAWRENCE LESSIG
38
El precio del arte / Art’s price DANIEL G. ANDÚJAR
44
Opiniones de los artistas integrados en AVAM: Sobre los Derechos de Autor en España Opinions from artists associated to AVAM: About Authors’ rights in Spain RICARDO ECHEVARRÍA y PABLO GENOVÉS
49
Conversación con ELENA ASINS / A conversation with ELENA ASINS JOSÉ ÁNGEL ARTETXE
56
Cómo habitar las futuras megalópolis. 10. Mostra Internazionale di Architettura. Città. Architettura e società How To Dwell in Future Megalopolis. 10. Mostra Internazionale di Architettura. Città. Architettura e società PEDRO MEDINA
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Cómo vivir juntos. Algunas notas sobre la 27ª Bienal de São Paulo How to Live Together. A Few Notes on the 27th São Paulo Biennial ALICIA MURRÍA
67
La residencia artística en la 27ª Bienal de São Paulo: Una experiencia que amplía el concepto de colaboración The Artistic Residence in the 27th São Paulo Biennial: An Experience for Expanding the Concept of Cooperation MARCOS MORAES
74
Cibercontexto
78
Info
90
Libro / Book
92
Críticas de exposiciones / Reviews
Portada / Cover: SERVET KOÇYIGIT Higher Education, 2006. 27ª Bienal de São Paulo
PAGE ONE All through the last year, when a series of modifications were introduced in the Spanish Law of Intellectual Property –provoking diverse reactions–, authors’ rights have prompted hightoned debates that eventually confirmed that the artistic milieu, and specially its protagonists, that is, creators, were virtually unaware of these questions. Given the complexity of this subject, we decided to open a space for it in our magazine, inviting distinctive voices that would incarnate the different, sometimes irreconcilable positions. Under the title The Artists’ Rights, we have intended to gathered a series of texts that reflect the state of the question, attempting to offer enough elements so that everyone can elaborate his own criteria. In this occasion we have counted on the collaboration of prestigious jurists –Alberto Bercovitz–, experts –Carola Streul, Javier Gutiérrez, Lawrence Lessig and Ignasi Labastida–, and of course, artists (represented here by Daniel G. Andújar, Ricardo Echevarría and Pablo Genovés), who are the protagonists and the most affected part. Hopefully, all the objectives that we have pursued and defended will be accomplished: that every author can freely choose the legal framework in which he wants to develop and divulge his production, and that all the moral and material benefits generated by his work cannot be subtracted. In the central articles, we present Elena Asins, a Spanish artist who has a noticeable international career but whose work, paradoxically, is not sufficiently known in Spain –in spite of the fact that she was granted the Gold Medal for Fine Arts Merit last year. In an interview, Asins explains her aesthetic principles in the context of conceptual art, and she also talks of her long artistic experience. In the last few years, the proliferation of Biennials has become a distinctive phenomena, which is both due to a whish to focalize attention on current art and to recover the international image of cities, attracting the increasing so-called cultural tourism and the economic benefits it generates. In this occasion, we are focused on the veteran Sao Paulo Biennial. This year’s edition, under the title How to Live Together, reflects on the artistic production and its involvement with different social and cultural realities, remarking the processes and contradictions in which this practice is developed. We have also devoted a space to analyze the tenth edition of Venice’s Architecture Biennial, which has featured many relevant international projects under the title City, Architecture and Society, so as to tackle the social dimension of architecture and its responsibility in determining the forms of co-existence. On the other hand, in the section CiberContexto, we offer reference itineraries on the Internet that may help expand the information presented in our dossier. Finally, a wide panorama of relevant international exhibitions –ranging from Singapore to Toronto, to Berlin, Cologne, Luxemburg, Utrecht, Mallorca, Madrid, Porto or Buenos Aires, among other cities–, our review of books and our news sections complete this 12th edition of ARTECONTEXTO. With this issue, we celebrate our third year of existence. Thanks to all those who have supported us.
ALICIA MURRÍA
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Creative Commons’ License System By Ignasi Labastida i Juan*
In the last few years, copyleft, free licenses and free-culture in general have become intensely discussed issues. Nonetheless, many concepts must still be clarified so that we can all understand what these initiatives would mean for authors and society. A neophyte may think that free-culture movement is aimed to suppress authors’ rights, whereas its purpose is exactly the opposite. In fact, it looks for a legal, safe system that may allow authors to freely decide how to exercise their rights. And despite in many countries the laws on intellectual property are bellow desirable standards, all these new licenses must be based on such laws if they really intend to constitute a real alternative to the traditional system of “all rights reserved”. On the other hand, it should be acknowledged that these movements are struggling to change current laws on authors’ rights so that these laws become as real and flexible as possible, in order to retrieve a balance between users and creators, which would also permit the latter to exercise and manage their rights to their own convenience. All these movements around free-culture philosophy have been nourished by the previous experiences of free-software movement, which has proved to be a real alternative to the so-called proprietary software. More or less successfully, many attempts have been made to adapt free software advantages and rights –which were postulated by Richard Stallman and supported by the Free Software Foundation– to the cultural milieu. One of the earliest initiatives in art world was the Free Art License promoted by French collective Copyleft Attitude in 2000. Similar experiences have been carried out in Spain such as the Unconditional Air License, promoted in 2004 by Platoniq Collective and formalized by Catalonian lawyer Abel Garriga. Perhaps the best known free-licenses are those promoted by
Creative Commons, a non-profit organization based in San Francisco. This organization has revolted the distribution of contents on the Internet with a project that was founded six years ago in the U.S and has expanded through its associated institutions around the world. What Creative Commons offers is a series of legal texts for creators to authorize some uses of their works under certain agreed circumstances. In that manner, everybody knows the permission has been granted and there is no need to ask for any further authorization to copy and distribute a particular content. It’s a leap from “all rights reserved” to “some rights reserved”. In short, licenses offer a cession of rights under some agreed conditions. These rights are among the so-called exploitation rights while the moral rights remain unaffected. It’s a necessary protocol, since in most European jurisdictions moral rights are inalienable and not transferable. There is a variety of legal texts in Creative Commons website, but perhaps the best known and more appealed to are the six standard licenses. They all permit to copy, distribute, and publicly divulge creations as long as the conditions established by the author or the licenser are observed. Currently, they all have as a primary requirement the acknowledgement to the original author of a work –or even of a part of a work, according to the designations made by the author himself or the licenser. Restriction are applied to the copy, distribution or public divulgation depending on the different kinds of licenses, namely: Attribution (by): a commercial use of the work and the possible derived works, whose generation and distribution are not subject to any restriction, is permitted. Non-Commercial Attribution (by-nc): the generation of derived DOSSIER · ARTECONTEXTO · 23
Creative Commons has undergone an evolution and it doesn’t limit itself to offer legal texts but it also has become an international movement that strives to reach a balance between the rights of authors and the rights of access to culture.
works is permitted as long as there is not a commercial use involved. Original works cannot used with commercial purposes. Attribution Share-Alike (by-sa): the commercial use of both the works and possible derived works is permitted, and their distribution must be made under a license identical to the original work’s license. Attribution NoDerivs (by-nd): the commercial use of the works is permitted but the generation of derived works is forbidden. Attribution-NonCommercial-ShareAlike (by-nc-sa): A commercial use of both original works and derived works is not permitted, and their distribution must be made under a license identical to the original work’s license. Attribution-NonCommercial-NoDerivs (by-nc-nd): Both a commercial use of original works and the generation of derived works are forbidden. The summaries of licenses also indicate that these restrictions can be revoked with an authorization from the rights’ owner. For instance, if someone wants to make a commercial use of a work whose license forbids any use of this kind, he may reach an agreement with the licenser and obtain the right to make an specific use of the work, just as it is done in the traditional system. Therefore, any of these six licenses authorizes the user at least to copy, distribute and divulge a work as long as there is not a commercial use involved and the authors are properly acknowledged. These licenses are applied worldwide and they are not exclusive, which permits the author to establish other conditions and agreements, as we said before. In order to facilitate the election of a license, an application form is included in Creative Commons website that asks the user if he allows for a commercial use of his work and if he allows for the generation of derived works. Besides, some additional information about the works can be added that may facilitate their indexation and localization. Forbidding a commercial use doesn’t imply that the author cannot commercialize his work to his own convenience. In this case, he would only be deciding whether he permits or forbids other people to use his work freely. If the author permits the generation of derived works he may also demand that these works are subject to a license of the same kind. The six licenses are obtained from the combination of answers to these two questions. This process is not a registration. Creative Commons is only a manner of visualizing the chosen license according to the answers. 24 · ARTECONTEXTO · DOSSIER
One innovation of this system is the fact that licenses have a triple reading: the summary (common deeds), the legal text (legalcode), and the code or meta-data (digital-code). In short, this service provides a brief answer about everything we can do with a work and under what conditions. The legal text is the license itself and the code can be pasted on any website where the work is offered, only if its online, of course. Such reading of the license was conceived for digital materials, but the use of licenses doesn’t exclude other, more traditional, materials such as paper. This has allowed for the creation of specific tools to indicate that the contents are subject to one of these licenses, and also to browse some specific contents on the internet. The licenses project has not been finished yet. In fact, new modifications are being discussed that may help to increase the authors’ requirements. The final objective of this project is creating a tool for authors to decide in what conditions they want to divulge their creations. Another trait of Creative Commons is its internationalization through local projects or chapters. The first legal texts generated and offered on the internet were based on the American legislation on intellectual property. However, since the beginning there was a plan to adapt them to other legislations. This is how, in early 2003, Creative Commons International project iCommons, began with the participation of Brazil, Finland and Japan – which adapted its licenses as early as 2004. Later on, other jurisdictions, including the Spanish, were included. The adaptation process doesn’t only consist on translating the licenses to the local idiom, but also a process of revision is done in which some elements of the license are modified, eliminated or added in order to make such license more coherent with local legislations on intellectual property. Currently, the licenses have been adapted to thirty-three legislations, and there is about twenty adaptation projects in progress. Creative Commons project was brought to Spain in early 2003, when in the Program of Pedagogical Improvement and Innovation of the Universitat de Barcelona we were trying to find a system to divulge the teachers’ materials. We were looking for a system that would at the same time respect rights of authors and facilitate the free use of the contents. The M.I.T’s OpenCourseware was a precedent in the academic world. Then we studied the legal warning and we found Creative Commons. All we asked them was a similar license for our contents but they offered us to lead the adaptation of licenses in the framework of the then incipient iCommon project. The process of adaptation began with the elaboration of a license
draft that was divulged on the internet in 2004, thus originating a public discussion through a free-access distribution list. In may of that same year, version 2.0 of the licenses appeared, including some modifications on the texts. Afterwards, the Almeida firm elaborated an adaptation that became the base for the aforementioned draft. The process concluded in October 1, 2004. From then on, any author can select the Spanish jurisdiction adaptation in Creative Commons website when he chooses the license that is best for him. Thanks to the labor of the volunteers who are still participating in the list we could achieve this goal. Currently, the licenses adapted to Spanish jurisdiction have been translated into Spanish, Catalonian, Galician and Basque. During the last four years since the publication of the earliest licenses, Creative Commons has undergone an evolution and it doesn’t limit itself to offer legal texts but it also has become an international movement that strives to reach a balance between the rights of authors and the rights of access to culture. What’s more, new projects have emerged, such as the musical community Ccmixter –created after the celebration of two D.j contests, featuring mixings made using iCommons licensed music–, or the project Science Commons, which attempts to apply the experiences that in this field have been gathered by cultural and artistic milieus on scientific and academic worlds. An effort is also being made to make the different copyleft licenses compatible with each other, so as to facilitate both a proper use of the materials available and shared on the internet and the generation of new creations. The emergence of these new licenses has meant the beginning not only of reflection but also of intense debates about the authors’ rights in many fields. The possibility to divulge contents on the internet increases the visibility of artworks, but it is also necessary to associate such diffusion to certain conditions of use, because if it is not clearly specified one may think that “all rights are reserved”. This is a very important point, since ignorance on these questions may lead the people to think the opposite. Therefore, it is crucial to establish what’s permitted and what’s not, as well as the conditions under which the use can be made. The possibility to have access to works whose use in derived creations is permitted beforehand without any special permission, enables the users and creators to exchange their knowledge more effectively. Thos sites with more restrictions may be less visible than those that open a door for you to utilize and divulge their contents. The flexibility of these licenses permits an author to offer his contents under convenient conditions and also have access to other contents that he could use to create new pieces. This new model of diffusion/ access to culture has introduced some necessary modifications in the laws on intellectual property, but a more global reconsideration of current laws and authors’ rights so that they can be adapted to the new reality.
More information at: Creative Commons http://creativecommons.org Creative Commons España http://es.creativecomommons.org Creative Commons standard licenses adapted to Spanish jurisditcion: Attribution: http://creativecommons.org/licenses/by/2.5/es/ Non-Commercial Attribution: http://creativecommons.org/licenses/by-nc/2.5/es/ Attribution Share-Alike: http://creativecommons.org/licenses/by-sa/2.5/es Attribution NoDerivs: http://creativecommons.org/licenses/by-nd/2.5/es/ Attribution Non-Commercial-ShareAlike: http://creativecommons.org/licenses/by-nc-sa/2.5/es/ Attributinon Non-Commercial-NoDerivs http://creativecommons.org/licenses/by-nc-nd/2.5/es/ An example of the triple reading for the attribution license: Summary or deed: http://creativecommons.org/licenses/by/2.5/es/deed.es Legal text: http://creativecommons.org/licenses/by/2.5/es/legalcode.es Code for machines: http://creativecommons.org/license/work-htmlpopup?lang=es&jurisdiction=es&license_code=by Other licenses Aire Incondicional http://www.platoniq.net/flicencia1.html Arte Libre http://artlibre.org/licence/lal/es/ Free Software Foundation http://www.fsf.org Other projects: Ccmixter http://ccmixter.org iCommons http://creativecommons.org/worldwide/ Science Commons http://sciencecommons.org
* Ignasi Labastida i Juan is the Coordinator of the Spanish branch of Creative Commons, Unversitat de Barcelona. © Ignasi Labastida I Juan, 2006. Subject to Creative Commons attribution license 2.5 Spain (http://creativecommons.org/licenses/by/2.5/legalcode.es)
DOSSIER · ARTECONTEXTO · 25
Art and New Economics Big Fish Eats Little Fish
By Javier Gutiérrez Vicén*
I. The so-called new economy is based on the exploitation of knowledge and its effects and development are taking place in a time span that barely covers one generation, which complicates its level of adaptation but, above all, doesn’t provide the necessary distance to analyze and ponder the complete consequences of this evolution. One of the primary effects (or defects) generated by the velocity of this process, is the coining of the term “new technologies” and its clearly interested link to the definition of the whole process as a “technologic revolution”. The description of this evolution as a “revolution” permits its most daring and interested interpreters to justify eventual gaps on the juridical field, i.e., precisely the field that society uses to regulate the coexistence of its members. II. Currently, the term “visual creations” is used to define a wide set of works protected by authors’ rights whose sole common trait is the use of image as an expressive form. The term was not adopted until different evolutional, scientific and technical processes occurred that converged generating social-cultural transformations. The transformation of cultural behaviors that was gradually generated in this evolutional process leads to the emergence of new expressive forms. Among the most important milestones we should mention the inventions of photography, cinema and then TV, as well as the transformations generated by the fusion between the different 30 · ARTECONTEXTO · DOSSIER
technologies of telecommunication and the development of informatics, supported by the joint utilization of binary codes, in other words, digital technology. The emergence of photography has had relevant repercussions, not only on the fields of sciences and industry, but also on the whole cultural milieu and particularly on creative practices. Photography and its subsequent developments initiated a rupture of both conceptual and perceptual environments whose complete consequences are still under analysis. After photography and cinema, video was probably the most influential phenomenon in the art world –even though, electronic art, as a direct result from videoart, should be mentioned as the other crucial development. In the 60s, the commercialization of video cameras generalized the massive access to the production of moving images. Some artists got interested in this phenomenon and began to use video as a means of expression. As a result, video not only became a means of massive communication but also a tool for artistic expression. Nan Jum Paik exhibited his electronic tapes in 1965 at the Café GoGo in New York. In 1969, his exhibition Television As a Creative Medium at the Howard Wilse Gallery became a milestone and this kind of creations were labeled as “videoart” or “videocreations”. Since the late 80s, a new kind of creators has gradually
emerged that use digital technology in their works. The earliest antecedent of this type of creation was Ben Laposky’s Electronic Abstractions, the first computer-generated art piece. These electronic art creators have developed their creative work in three basic fields: synthetic fixed images, moving threedimensional images and interactive creations. Video games and CD ROMs are the most employed mediums when the artworks are multimedia creations, even though online creations developed for the Internet are becoming more and more common. It’s the so-called “net.art”. III. The digitalization process has encouraged the development of completely new synergies. The assemblage of networks and open systems enables the emergence of new computer and telecommunication services, but it also encourages commercial activities in the bosom of cultural and pedagogic practices. Nowadays, the irruption of this phenomenon, which is both technically and economically influential in teaching, science and culture, uses advertisement as an agglutinant element. Publicity constitutes both a motor of processes and a communication style that introduces spectacle and entertainment in all the aforementioned fields. Science, education and culture had never been involved with spectacle and entertainment. On the contrary, these were rejected because of their underlying frivolity and greed. IV. net.art works are freed from their link to a material object, which constitutes a completely new phenomenon in fine arts, whose main characteristic –perhaps its essential trait, the one that differentiated it from the rest of artistic practices– was precisely the use of a material medium. net.art is created in the cyberspace to be divulged on the cyberspace, therefore it lacks from a materiality. Besides, these works are determined by another crucial aspects of digital environments, i.e., interactivity. All these elements entail some complex issues that make it difficult to guarantee a complete respect for authors’ rights. These difficulties are common to all kinds of creative works on the internet, but there are two elements that worsen the conditions of authorship in the case of visual creations. On the one hand, image is the agglutinant and most powerful element
of audiovisual language, which can be easily confirmed by observing the simple fact that all computers have a screen and most websites include images. Navigation on the internet can be carried out without sound –but never without image. On the other hand, because of their multiplicity and versatility images are a very tempting material. In addition, by virtue of their strong symbolic power, images play a schizoid role in collective unconscious mind. While some of them have a symbolic content that exceeds their artistic value (Picasso’s Guernica, for instance), which generates almost religious considerations among the public, on the other hand, we have to mention image’s “instantaneousness”, in other words, the fact that, unlike literary or musical works, images can be immediately perceived and their versatility allows unlimited uses. As a consequence, admiration and a certain disrespect for image coexist, which generates a social relation to art that encourages most people, and even some creators, to consider artworks as “authorless”, as if they were products of an original common cultural heritage. Creation, conceived as a maieutic phenomenon that corresponds to an individual effort, is thus confused with culture –a social force that results from the filter of social dialectics and the social digestion of generated contents as well as their historical value. This special situation –which puts the rights of authors of visual creation works under a permanent risk– is even worse with regards to the economic characteristics resulting from the activities of big internet companies. The requirements of digital business, which force these companies to make big investments, is encouraging concentrations of companies that ignore international agreements against monopoly. These investment processes have a transnational effect and the concentration of capitals is aimed to find complementary criteria that may generate new synergies. The aforementioned concentration has supported the emergence of big groups of companies that exert a sort of vertical monopoly. When these groups of companies operate in cultural contexts their incomes often come from very diverse sources that have nothing to do with culture (Lafayette
net.art is created in the cyberspace to be divulged on the cyberspace, therefore it lacks from a materiality. Besides, these works are determined by another crucial aspects of digital environments, i.e., interactivity.
company, for instance, fabricates weapons and is the owner of an audiovisual and editorial group that extends all across France and Europe, and will very soon acquire an editorial group in the U.S.) This inevitably generates both an absence of close relations with culture and the need to obtain immediate profit. This eagerness for immediate profit entails an interest to have access to the rights of creators so that these companies can use their work to their own convenience. As an example I will mention the Corbis case. This Microsoft company is exclusively devoted to acquire those contents protected by copyright, specially photographs, artistic documents and audiovisuals. Once the material is digitalized and filed, the copyrights are ready to be supplied and managed. Corbis (which is currently managing millions and millions of images and, together with Getty Communications, a branch of the Getty oil company, controls the supplying of images to the mass media) is acquiring the images of works made by photographers and artists by means of contracts that include such statements as: “when we make a digital image of a pre-existent work we are creating a derived work that we register and manage under our own copyright”. This statement, which contradicts both the OMPI Agreement on authors’ rights from December 20, 1996 and American laws, has been protected by the felony of submitting the contract to the jurisdiction of Seattle tribunals of Washington State. As a result, any impugnation on the part of authors would require expensive judicial procedures. V. We are witnessing one phenomenon that affects visual creation, namely, the systematic violation of authors’ rights, which in the case of net.art works is even worse. This new state of greed is extending through diverse fields. As an example, see the article published on this year’s second issue of ICOM News, in which Dr. Trevor Carmichael suggested that museums could obtain profit from exploiting licenses of intellectual property. This crazy race to obtain and exploit the rights of authors (“authors’ rights are too important to be in the hands of authors”) has also given rise to two different lines of action. One of them is constituted by a tendency to abusively surpass the
limits of authors’ rights –even though the abusers claim to respect those rights in contexts that have nothing to do with the strict regulations of the law. Some art historians and other specialists on aesthetics, demonstrating both their competence in their profession and their ignorance of laws, have theorized that the loss of “aura” as a consequence of technical reproduction implicates the elimination of originality and the emergence of “something else” that can be exploited without the author’s permission. Such violation is often presented as a right of quotation. We should remind that intellectual property is a right of special property, as it has been stated in the article 428 of Spanish Civil Code. What’s more, the right of property is regarded in our Constitution as a fundamental right, even though it is limited by its social function (articles 33.1 and 32.2). On its part, the right of access to culture included in the article 44 CE is not a Fundamental Right, but a regulating principle of social and economic policies that public powers must observe. However, the fact that our Constitution has established a principle that orients the legislators’ work does not entail that the public entities must assume a constitutional commitment to guarantee the access to culture. Avoiding to put obstacles to such access is very different from eliminating Fundamental Rights like the right of property as a means to endorse certain particular benefits. VI. Despite the second line of action has identical objectives, its strategy is subtler and its quick evolution describes an increasingly wider ellipse. Obviously, I’m referring to the copyleft movement and its close relatives, namely, the Free-Culture movement and the promotion of the so-called Creative Commons licenses that, as I will try to demonstrate, constitute mere strategies that the system is creating to facilitate the accelerated assimilation of authors’ rights. It’s a very polemic and surprising issue. First of all, how is it possible that so many resources and efforts, involving even public institutions, have been devoted to promote these initiatives that are allegedly private, countercultural and antisystem? The Free-Culture movement began with the Open Access
Before subscribing any Creative Commons license, it is indispensable that visual creators are well informed about what will be the situations of their rights once they adopt this system –both their moral rights and their patrimonial rights, for juridical insecurity resulting from this model is alarming.
Initiative and, on the other hand, with the free-software movement that has inspired Creative Commons project. Nevertheless, before Free Culture there was the Free Software Foundation, created by Richard Stallman in 1985. Until 1984, Stallman was a member of the M.I.T. Artificial Intelligence Laboratory and redacted the GNU Manifest in an attempt to create a free alternative to the Unix system, so that any user could run, copy, distribute, study, modify and improve such software. Finally, Stallman created a license for intellectual property rights cession, the well-known GNU, General Public Licenses. The technical resources of this foundation come from Google, IBM, Hewlett Packard Invent, MYSQL and Lynux, which can be confirmed on the foundation’s website: http:// www.fsf.org/donate/patron/index_html. The success of free-software is very clear among the business sector, institutions and governments, and it is employed by important companies such as Telefónica, IBM or Hewlett Packard. In 2001, professors Laurence Lessig from Stanford University and James Boyle from Duke Law School, inspired by the Free Software Foundation, invented a philosophical justification for their Creative Commons licenses. Lessig explained his doctrine in a book called Free Culture, and it includes examples of free access to culture (that have been carried out in a manner that outrages the most basic juridical regulations) and explicit attacks against European and American systems of protection to the rights of authors. Professor Lessig has developed his movement with the cooperation of Hewlett Foundation, McArthur Foundation, not to mention important and very influential organizations such as Computer Tyme Web Hosting, as well as generous contributions coming from telecommunication companies. It’s worth mentioning that Telefónica and its Latin American branches financed a series of conferences by Professor Lessig around Latin America so as to promote Creative Commons licenses. From a juridical point of view, Creative Commons licenses are not in fact “licenses”. They are mere application forms in which the owner of property rights is consulted about the use of his work he may allow. Rather than contracts for exploitation licenses, these application forms are really public offerings to actually make those licenses, which are pre-arranged in contractual models that are subsequently distributed on-line between the parties. Their receiver can be anyone who has access to the internet and there is no limit as for the eventual “licensers” –according to the terminology employed by the organization. According to our Civil Code, Both the offering and its acceptance are declarations that would require the effective
recognition between the emitter and its respective receivers. Given that the exclusive rights that are mentioned in these forms are not transferred as rights of exclusive exploitation, but they only permit the author and other beneficiaries (as well as its subsequent contracting agents) concur with any licenser in the exploitations of the work, we are only dealing with simple authorizations that only generation obligations between the parties. These licenses are against Spanish juridical order with regards to the formation of a contract (offering, acceptation and creation of the license). It is also against the rules established by the law of Intellectual Property, since the obligations demanded by these licenses of non-exclusive use don’t stipulate neither a clear determination from the parties, nor a duration of the contract, disrespecting the article 43 of the Law of Intellectual Property. The definitions that these forms offer for such concepts as work, collective work, composed work, derived work, audiovisual work and databases, are also against our juridical orderings. And this is specially relevant for audiovisual creators who make videoart or electronic art. The also contravene the obligatory and inalienable character of the right to remuneration in favor of the creators that was established by the laws and cannot be ignored through a contractual agreement. Evidently, these licenses are intended to weaken the authors’ rights by using creators themselves against a system that defends their rights. It is also very noteworthy that Creative Commons organization exonerates itself from any kind of responsibility, including declarations and stipulations such as: “Creative Commons is not a party to this License, and makes no warranty whatsoever in connection with the Work. Creative Commons will not be liable to You or any party on any legal theory for any damages whatsoever, including without limitation any general, special, incidental or consequential damages arising in connection to this license.” All these exonerations (much more extensive than the aforementioned examples) reflects the weakness and deceitfulness of Creative Commons system. Before subscribing any Creative Commons license, it is indispensable that visual creators are well informed about what will be the situations of their rights once they adopt this system –both their moral rights and their patrimonial rights, for juridical insecurity resulting from this model is alarming. Someone has to warn creators about the fact that big fish wants to eat little fisth.
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* Javier Gutiérrez Vicén is a lawyer and General Director of Arte y Derecho Foundation.
DOSSIER · ARTECONTEXTO · 33
CIBERCONTEXTO
Web Rights By Pablo D. Olmos The terms of the endless debate on intellectual property rights have been clearly altered by the Internet. There’s no doubt that the advent of cyberspace, an open, intangible zone that’s available to everyone, and where information travels easier and
Software “Code,” the technology that runs the machines without which it would be impossible to imagine today’s world, and the questions about its control and freedom of use inspired programmer Richard Stallman to devise the concept of Copyleft, with which he aims to establish new and more democratic conditions for software use. Users can find a selection of his essays on the well-known subject of free software and on copyrights in general at www.gnu.org/philosophy/fsfs/rmsessays.pdf; they can also view one of the most important foundations that belong to this fiesty character at www.fsf.org. As for Copyleft, it’s also worth noting the recent creation of the Fundación Copyleft www.fundacioncopyleft.org/, whose objectives include the encouragment and defense of cultural productions with Copyleft licenses.
with fewer restrictions, has posed a new problem in regards to property rights. Loads of information about this debate is available on the Internet, which, in addition to being the debate’s protagonist, has also served as its stage.
In the world of restrictive copyright alternatives, the name of Lawrence Lessig stands out. This prominent lawyer and Stanford Law School professor was the architect of Creative Commons (www.creativecommons.org), a revolutionary licensing system that aims to make the concept of property more flexible and which holds the recognition of authors as a fundamental requisite. In his book Free Culture, Lessing explains his position on the current state of the copyright and makes the case for his proposals to modify it; naturally, the entire book is available in several languages at www.freeculture.cc/freecontent/ (www.elastico.net/archives/001222.html in Spanish). Besides Creative Commons licenses, we can also find new initiatives put forth by two art collectives, the license Art Libre www.artlibre.org/licence/lal/en/ (www.artlibre.org/licence/lal/es/ in Spanishl) and the license Aire Incondicional www.platoniq.net/aireincondicional_licencia.html. It’s also worth mentioning Copia Este Libro (Copy This Book), a volume by Spanish lawyer David Bravo that’s available at www.elastico.net/archives/005194.html.
To understand this debate it’s important, albeit a bit tiresome, to get a grasp on the positions of the institutions involved. To this end, the management entities of intellectual property rights have also published sites on the Web, but not without some rather curious quirks—when one enters the Spanish word for thieves, “ladrones,” for example, into the Google search engine, the Sociedad General de Autores and Editores (General Society of Authors and Editors) (www.sgae.es) is the first link to pop up. A list of management entities and information on current national legislation is available as well at www.mcu.es/jsp/plantilla_wai.jsp?id=38&area=propint. You will also find the page for the World Intellectual Property Association, an organization specialized in the United Nations’ system of organizations and with headquarters in Geneva, at www.wipo.int.
The Copyleft movement has a creative presence on the Web, with notable sites such as http://www.copy-art.net, where numerous artists post works that can be copied, modified, and distributed as the viewer pleases. Another site with a similar procedure, from Argentina, is http://derivables.com.ar/. On another front we find Copyfight (http://www.elastico.net/copyfight/index.htm), a cycle of activities organized by the collective Elástico, whose second and latest symposium took place at Barcelona’s Centre d’Art Santa Mónica in March 2006. The cycle’s theme was “the unstoppable crisis of the current model of intellectual property.” The conferences are still available on the Web, along with related links. A curious proyect undertaken by the collective Gratis at the beginning of 2006 can be found at www.copilandia.org/; it’s an island of free knowledge, i.e., a copyright-free space. If readers are interested in accessing net.art’s backstage, they can do so via The Open Art Network, a free site that provides open software and tools for making art on the Web (http://three.org/openart/).
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