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Scientific American

July 26, 2011

To © is Human

By Glendon Mellow

This article was published in Scientific American’s former blog network and reflects the views of the author, not necessarily those of Scientific American

Pierre Brassault. Tillie Cheddar. Luk Khang. What do these artists have in common? Their work is open source, and completely open to reproduce without copyright protection. This is not to say they are on the cutting edge of the Cory Doctorow-style "maker" business model. Their work is free from copyright because these artists are not human.

Copyright is a complicated topic, but one worth exploring on Symbiartic from time to time as illustration and art are propelled headlong into our digital age. At its root though, copyright is granted by creation of a work. You cannot copyright an idea or style (and you cannot copyright scientific facts as you discover them); but you are granted automatic copyright over a finished work, whether a sketch, a poem, or a logo. Most of the ins and outs of copyright law are upheld internationally by the Berne Convention of 1886.

I should correct that earlier statement. Copyright is granted by creation of a work -- by a human. Animals and machines cannot hold copyright on their work. Will there come a day when computer spam-bots stand motherboard-to-shoulder with chimpanzees to demand their copyrights?

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It's fascinating that as a society we have created copyright in this human-centric, chauvinistic way. Perhaps if more structures and creations by animals were considered art, or the definition of "art" were less slippery, paintings by animals would be less surprising. Copyright does not have to extend to a professional, and is automatically granted to works when they are complete, and yet, cannot be granted to an animal. From the IP Mall, chapter on Copyrightable Matter: Pictorial, Graphic and Sculptural Works:

503.01 Style and artistic merit. The registrability

of a work of the traditional fine arts is not

affected by the style of the work or the form

utilized by the artist. Thus, the form of

the work can be representational or abstract,

naturalistic or stylized. Likewise, the regis-

trability of a work does not depend upon artistic

merit or aesthetic value. For example, a child's

drawing may exhibit a very low level of artistic

merit and yet be entitled to registration as a

pictorial work.

 

And yet...

503.03(a) Works-not originated by a human author.

In order to be entitled to copyright registration, a work must be the product

of human authorship. Works produced by mechanical processes or random selection

without any contribution by a human author are not registrable. Thus, a linoleum

floor covering featuring a multicolored pebble design which was produced by a

mechanical process in unrepeatable, random patterns, is not registrable. Similarly,

a work owing its form to the forces of nature and lacking human authorship is

not registrable; thus, for example, a piece of driftwood even if polished and

mounted is not registrable.

It's also human to feel pity for the unrecognized mechanical pebble-linoleum artisan, I suppose. Will it be a sign that the Singularity is near when we begin to recognize the copyright of machines? Or will copyright become a completely outmoded concept?

The one area of copyright I would like to see continue are Creative Commons Licences. These allow for free sharing of artwork, similar to the way we treat art by elephants and chimps, with the added caveat that they must be, at the very least, attributed to the artist. It's a good and fair practice in the online world to at least cite the author, human or not. I mean, what are we; spam-bots?

If you're blogging and unsure of how to cite an image, I've previously posted a short list of 5 steps for proper image use:

  1. Go beyond Google Images or Wikipedia to the original photographer, illustrator or artist.

  2. Check for a Creative Commons Licence*.

  3. Ask. Just ask if permission is unclear.

  4. Credit the photographer, illustrator or artist by name.

  5. Link back to their site.

Taking at least these 5 steps helps ensure that some respect for image makers remains, no matter what species they are.

If you're interested in further reading: