On March 19th a fascinating symposium was held in Chapel Hill, NC in honor of Laura (Lolly) Gasaway. Lolly, for many years Professor & Law Librarian at UNC Chapel Hill and now Associate Dean for Academic Affairs, is a prolific scholar and has had a tremendous impact on how libraries understand and work with copyright law. She is also a gracious and generous friend; meeting her has been one of the best parts of coming to work in the Research Triangle, even if we are on opposite sides of the great basketball divide. The symposium in her honor was a gallery of prominent and interesting speakers who witnessed to the full range of Lolly’s intellectual and practical influence.
I was particular interested in the remarks made by Professor Llewellyn Gibbons of the University of Toledo College of Law, who talked about the Visual Artist’s Rights Act (VARA) and its application in the digital environment.
VARA was adopted in 1990 and adds a section to the Copyright Act (section 106A) that carves out a special right for visual artists. An artist who creates a covered work under VARA gets a truncated version of the “moral rights” that are recognized in most other countries — a right of attribution and a right to ensure the integrity of the art work. VARA applies only to a narrow category of works — paintings, drawings, prints, sculptures, or still photographic images produced for exhibition only, and existing in single copies or in limited editions of 200 or fewer copies, signed by the artist. It is interesting to note that this is the only recognition of these moral rights in U.S. law, in spite of our commitment when we joined the Berne Convention to protect such rights for all rights holders.
Professor Gibbons raised the issue of how well or poorly VARA might apply to an artist who works in digital media. The real problem, he pointed out, is the limitation to works that exist in 200 or fewer copies. How do we talk about a limited number of copies in an environment that promiscuously makes copies every time material is displayed, download or transmitted? This question is remarkably similar to one that the Section 108 Study Group, co-chaired by Lolly, grappled with regarding the application in the digital realm of the limit on the number of preservation and interlibrary loan copies that a library can make.
Suppose an artist creates a digital work and displays it on her website. That, we could argue, is a single copy. But people will download that work and, without some control, soon there will be more than 200 copies. And even that way of stating the problem assumes that the ephemeral copies created in a computer’s memory whenever a site is visited do not count (they are not copyright infringements because of section 117 of the Copyright Act, but that does not determine whether they would count toward the restriction in VARA). Professor Gibbons discussed the possibility that a “download and delete” scheme, presumably based on coding that would prevent the 201st download and would prevent a downloaded copy from proliferating (similar to the DRM used by iTunes?), might preserve VARA rights for such an artist.
I am less than optimistic that the scheme Gibbons suggests could really work, but I look forward to reading his paper when the proceedings of the symposium are published in the Journal of Law & Technology. In the meantime, it seems very obvious to me that the idea of digital art is completely outside of what Congress was imagining when it drafted VARA 20 years ago. And that, perhaps, is the most important point. This attempt to imagine how VARA could apply to digital art clearly demonstrates the inability of copyright law, even with relatively recent revisions, to keep up with changing technology. It highlights the near impossibility of creating a law flexible enough to respond to new technologies. The real digital challenge is to create a copyright law that is permeable enough to provide “escape hatches” through which new technological possibilities can slide so that creativity is not inhibited for the long periods of time it takes for law to catch up with human ingenuity.