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We had in today's seminar a wide-ranging and comprehensive exploration of the issues surrounding intellectual property in the arts as affected by the new electronic media. These issues are not trivial or academic issues. They are urgent and affect the very basis that allows artists and creators to make a living from their work. If we care about the place of the artist in the new culture that is being built, we must pro-actively create new models of economic systems that recognize the new technical realities.
Max Frankel made the very important observation that "not everything that is possible will happen." Although there are many technically possible approaches to protection of intellectual property in the new media, it will take political action to create the combination of technical, social and legal systems that will ensure economic compensation for creators.
The electronic media drive a convergence between the very different economic cultures that have arisen within each of the artistic realms. Cultures of print, of film, of television, of musical performance, of artistic exhibition have developed over the centuries; each culture has its own set of norms, legal approaches and economic systems. Each has different kinds of "presenters" which allow audience and artistic creator to connect to each other. Electronic media are touted for their multimedia potential, and this potential is now being realized. What this means is that it will no longer work for the music industry to develop one approach, the visual arts another, and the literary world another. A new legal framework which allows text, moving image and sound to be treated in similar ways is needed. This poses a large challenge in itself. As a comparison, one could imagine the problems involved in getting the professional football, tennis, hockey and basketball professions to agree on the same economic system. Not only will the different creative communities have to work in concert, but the presenting communities of museums, performance halls and libraries have to work out similar strategies. As we heard the presentations from libraries and museums, it became clear that on the Internet their missions and strategies converge. The public library and entertainment industries will find themselves dealing with overlapping audiences in unprecedented ways. And new institutions and cultures emerge from the software creators.
Each one of the sectors represented today expressed fears about the ways matters might develop.
The sense of urgency from the technology providers was clear. Large financial risks are being taken and any restraints or unanticipated changes can lead to tilting the market to different economic players. The cyberspace is a frontier as real as any physical frontier. The vast majority of businesses who plied their trades in the opening up of the west of the U.S. have long since disappeared. Similarly, we can expect that most of the technology companies of today will not be here 20 years from now. They will not have found the right connection between paying customer and content provider.
The presenting institutions, libraries, museums and performing arts producers are stepping forward to reach new audiences. The Library of Congress is now seeing some 10,000 "log-ons" to their online system a day. The Louvre World Wide Web site has now had more than a million visitors. Indeed, the Smithsonian National Museum of American Art sees more individuals per day online than enter through the physical door of the museum. Other preexisting institutions, which may not share the same values, may emerge as the dominant institutions. The legal uncertainties and risks are likely to restrain those institutions from working with living creators; instead they may focus on the work of dead artists or those whose intellectual property they clearly control. The vitality of the arts is at issue.
The communication companies and distributors such as NYNEX are central to the viability of the new markets. Clearly they would prefer to be passive transmitters of digital data. However, given the distributed nature of digital networks and their supranational scope, it is hard to see how they cannot be factored in. As dissemination of cultural materials becomes transactional in nature (rather than through delivery of products such as books or tapes or disks), the electronic networks are the logical place to address protection of intellectual property (encryption, etc.) as well as to monitor the volume of use of copyrighted materials. Yet as the communication companies develop international strategies, they take large risks. Restraints in one country could put those companies at economic disadvantage.
The artists themselves voiced their fear of being "road kill" on the superhighway. The music industry is active and engaged; other sectors (the performing arts) feel less urgency. There is a large generational problem with the younger artists who are experienced in the new media not being involved in the organizations that are developing approaches for intellectual property rights representation.
The speakers representing the various players all expressed a sense of urgency on these issues. These issues pose real problems today, and legal case law is already accumulating in a conflicting and potentially damaging way. There is a need to define the new legal framework, and this is underway in the U.S. Congress as well as in industry and among the groups representing creative artists. Some of the problems facing this drafting of new legal frameworks surfaced clearly today. If we record carefully the various pre-conditions that each sector identified, an incompatible and conflicting set of requirements emerge that clearly cannot be met. A large task of confrontation, compromise and restructuring will be needed. Legal approaches will be developed, tested and modified. Already the marketplace is providing a growing number of legal challenges to the ways economic players are creating compensation systems for the creators.
It is clear that the issue of intellectual property and the arts in the electronic media is a fundamental one that will not be resolved for many years to come. Various parties, most of whom have no experience working together, are developing approaches. The creators themselves are rarely visible and engaged in the process. As stated clearly, few, if any, artists' or creators' groups are involved in the drafting of new copyright law, congressional legislation or trade agreements (e.g. GATT). The issues are real and urgent and require concerted political action, as well as building new economic models that provide the required balance between the public interest, the commercial interest and the interests of artists and creators.
Please email comments to leo@mitpress.mit.edu